Burning Question

Burning Question on FLSA, Hours Worked, and Training

Today’s burning question: If a firefighter is given their scheduled shift off to attend training, do we count the hours that the firefighter was scheduled to work as time worked for overtime purposes? If a firefighter is scheduled to work 240 hours in a 28-day work period, and the department gives the firefighter two 24-hour shifts off to attend a class, is the firefighter still entitled to 28 hours of overtime for that work period?

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Local Fire Marshal Shuts Down Road Construction

Today’s burning question: I am the local fire district’s fire marshal and a contractor just erected signage indicating they plan to shut down a key road for construction that will result in a 10-mile detour for our fire apparatus. If this constitutes an unreasonable hazard in the event of a fire, can I issue an emergency stop work order? Answer: That is exactly what a fire marshal in Oregon did earlier this month.

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Burning Question on What To Do If A Subordinate or Coworker Sues

Today’s burning question: One of my subordinates filed a sex discrimination lawsuit against the fire department, the fire chief, the deputy chief and 75 John Does. Many members don’t want to work with her and are concerned about being formally named in the lawsuit. Can the city put her on paid leave pending the results of an investigation? Is there any case law that you can think of off the top of your head?

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Shift Captains and Administrative Captains Working Overtime

Today’s burning question: We have both shift captains (24 hours-on, 48 hours-off) and administrative captains (8 hour days – 5 days a week). Both are considered to be non-exempt (eligible for overtime). Why can't the department allow the administrative captains to work OT on shifts?

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At Will, Due Process and Just Cause

Today’s burning question: Does Loudermill apply in states that are “at-will”? Our city administrator said a prominent HR attorney told her that due process, progressive discipline, and a Loudermill hearing process does not have to be followed in our state because we are “at-will”. Answer: There is alot of confusion over this issue and well-intentioned attorneys who oversimplify the complexity of the law are not necessarily helpful.

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Eliminating Technical Rescue Services and Liability

Today’s burning question: If a department eliminates a technical rescue discipline due to liability concerns and a technical rescue incident occur, could those responders be accused of nonfeasance? Answer: The direct answer to your question is yes, responders could be accused of nonfeasance. I think your real question is whether they could be liable and the answer is probably not…

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First Amendment Right To Film and On-Duty Personnel

Today’s burning question: My chief thinks he can stop us from taking photos at incident scenes. He does not seem to understand we have a 1st Amendment Right to film in public places. Can you point me to any cases showing that an on-duty firefighter has a 1st Amendment Right to film? Answer: No, I cannot.

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Clumsy Plaintiffs and Standpipes

Today’s burning question: I was walking in an older part of the city of [redacted] recently when I tripped and fell, hitting an uncapped standpipe connection on the way down. The edge of the standpipe was jagged and rusty. I now have a significant injury to my face as a result that required plastic surgery. Can I sue the fire department for my injury?

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Burning Question: Searching Cars and the Fourth Amendment

Today’s burning question: We have a battalion chief who insists on searching cars at vehicle accidents, for mainly for drugs (legal or illegal). He will literally search it like a police officer would. Is this BC violating the patient’s rights and is he breaking the law?

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Safety, Liability and The 10 Year Service Life for PPE

Today’s burning question: My fire department does a very good job of adhering to NFPA 1851 when it comes to turnout coats and pants. Something we’ve really never paid attention to is the 10-year service life for helmets and boots. Is liability for violating NFPA 1851 purely theoretical?

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Overtime, Vacation Credit, and the FLSA

Today’s burning question: My fire department if we work overtime during a work period during which we take vacation, rather than pay overtime for the extra hours worked, they credit back vacation time. Our HR and Fire Chief claim it is against the law (FLSA) to be paid overtime and receive vacation hours in the same time work period. Is this true?

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Compensation For Work While On Vacation

Today’s burning question: We are combination department in which our full-time firefighters are permitted to respond back to alarms. We pay them their overtime rate for the extra time they work. Is it permissible under the FLSA to pay the firefighter overtime for returning to an alarm while we are paying him to be on vacation (ie. twice for the same time)?

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Burning Question: Wilmington LODD Suit, Civil Rights Violation, and Deliberate Indifference

Today’s burning question: I saw your article on the Wilmington LODD lawsuit and do not understand why the families of the deceased firefighters would bother suing the city for a civil rights violation. Answer: Civil rights suits are viewed by some attorneys as a strategic “end around” the tort defenses that fire departments would typically raise in cases like this. Whether the strategy will actually work is another story.

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Burning Question on Different Rates Of Pay

Today’s burning question: Can a municipality change your pay rate depending on the job/situation? Answer: There is nothing in the Fair Labor Standards Act that prohibits an employer from playing employees different rates of pay when working in different jobs, or even working the same job at different times.

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