Podcast # 27: Compensation for EMS Training Time

It’s not every day that I get to meet one of the parties to the lawsuits discussed here on Fire Law Blog. It is even rarer that one will agree do a podcast to discuss their case. My now-good friend Jon Misewicz is not your typical firefighter… or litigant. He began his career in the Fairbanks (Alaska) Fire Department, then moved on to the Memphis (Tennessee) Fire Department, then to the Anchorage (Alaska) Fire Department, and then back to Memphis Fire.

Jon is a terrific guy – highly intelligent – dedicated to the fire service – and down to earth. Listen as we discuss the FLSA lawsuit he originally filed back in 2010 on the issue of whether Memphis firefighters had to be compensated for attending mandatory paramedic training. By 2014, Misewizc v. City of Memphis had become the definitive ruling on the compensability of EMS training time for firefighters.

For those interested, here is a copy of the 6th Circuit’s decision:

Here is a copy of the district court’s decision:

Remember, the general rule is that training time is compensable. There are six exceptions, and here is the breakdown for those exceptions:

ExceptionRegulations VoluntaryOff-Duty
1 Training not directly related to employee’s job 29 CFR §785.27 X X
2 Independent Training 29 CFR §785.30 X X
3 Special Situations – Training like that offered by independent institutions of learning 29 CFR §785.31 X X
4 Training required by law for certification 29 CFR §553.226 (b) (1) X
5 Training required for cert. by a higher level of government 29 CFR §553.226 (b) (2) X
6 Personal time at fire academy 29 CFR §553.226 (c) X

Jon’s case dealt with exception No. 4, and to a lesser extent No. 5.

Here are the key regulations we discuss:

29 CFR § 785.27 General.

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

(a) Attendance is outside of the employee’s regular working hours;

(b) Attendance is in fact voluntary;

(c) The course, lecture, or meeting is not directly related to the employee’s job; and

(d) The employee does not perform any productive work during such attendance.

29 CFR § 785.28 Involuntary attendance.

Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.

29 CFR § 553.226 Training time.

(a) The general rules for determining the compensability of training time under the FLSA are set forth in §§ 785.27 through 785.32 of this title.

(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees of State and local governments in required training is considered to be noncompensable:

(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification of employees of a governmental jurisdiction by law of a higher level of government (e.g., where a State or county law imposes a training obligation on city employees), does not constitute compensable hours of work.

(3) Time spent in the training described in paragraphs (b) (1) or (2) of this section is not compensable, even if all or part of the costs of the training is borne by the employer.

(c) Police officers or employees in fire protection activities, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.

If overtime issues concern you, please join us in one of our upcoming FLSA classes to get the full story:

Denver, Colorado  September 17-19, 2019

Georgetown, Texas  December 10-12, 2019

Martin County, Florida  February  11-13, 2020

Kansas City, Missouri  May 5-7, 2020

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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