Burning Question on Salary and Shift Work

Today’s burning question: Can a firefighter who works 24 hours-on, on 48 hours-off be put on salary?

Answer: There are so many issues within your question. The first point has to do with your use of the term salary. A salary is simply one way an employee can be paid. Employees can be paid by the hour, the day, the week, the month, the year, by piecework, through tips, or even by commissions.

People equate being paid a salary with being ineligible for overtime. Being paid a salary is simply one way ANY employee can be paid. Where the confusion comes in is that exempt employees (executive, administrative, or professional) MUST be paid a salary to qualify for the exemption. However, it is not the salary alone that makes them exempt. Said another way: all exempt employees must receive a salary… but not everyone who receives a salary is an exempt employee.

Second point: it is legal for an exempt employee to work a 24-on 48-off schedule. The test for an exempt employee is not driven by the person’s work shift.

Third, it is perfectly legal for a fire department to pay a non-exempt employee (ie – an hourly employee who is entitled to overtime) a salary. When a non-exempt employee is paid a salary and works overtime, the employer needs to calculate their regular rate. This is done by dividing the salary by the hours the salary is intended to compensate the person for.  The regular rate is then multiplied by 1.5 to reach the overtime rate.

So, to directly answer your question, yes a 24-on 48-off employee can be “put on salary”. To go beyond your question… but address what I think you were actually asking me: paying a shift employee a salary does not change their status from non-exempt to exempt for overtime purposes. For them to be exempt – their duties would also have meet the requirements for the respective exemption (executive, administrative, or professional). Changing them from an hourly rate to a salary does not make them exempt from overtime unless they already meet the requirements for one of the exemptions.

Our three-day FLSA for Fire Departments conference covers these issues and much, much more. Seats are still available for our upcoming class in Georgetown, Texas – December 10, 11 and 12, 2019.

Folks can still SAVE $100 on our upcoming conference in Stuart, Florida February 11, 12 and 13, 2020. The Early Bird pricing ends December 1, 2019.

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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