Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: My fire department works a three shift schedule on a 12 day pay cycle. We work four complete 24 hour tours during this time for a total of 96 hours. We get paid overtime for anything over 91 hours per FLSA. This means there is a built in 5 hours of overtime each pay cycle.
The problem is if we use a vacation or sick day during a given cycle, we get charged for 24 hours of sick or vacation time, but only get paid the 91 hour salary. In other words, we lose the 5 hours of overtime we otherwise would have received.
Our contract acknowledges that we lose our built in OT upon using any sick or vacation time, but I don’t think we should get charged the full 24 hours of sick or vacation time and only paid for 91 hours. Is this legal for them to do this?
Answer: This is a complicated one.
Let’s start with the basics: Before a firefighter is entitled to overtime under the FLSA, he/she must work 53 hours per week, or 212 hours in a 28 day period. The department must designate a pay period that is between 7 and 28 days, so your department can lawfully select a 12 day cycle. The correct maximum hour figure for a 12 day cycle is 91 hours.
The bad news: The FLSA does not require an employer to give you sick or vacation time. If your employer chooses to give you such time… well… I suppose the FLSA considers it a bonus.
Under the FLSA an employer only has to include the hours you actually work when determining if you are entitled to overtime. Sick leave or vacation time do not count toward hours worked. As such if you do not actually work the maximum hours required (91 minimum to be eligible for overtime) – they do not have to pay you overtime for any combined work-sick-vacation hours that exceed 91 UNLESS your hours actually worked exceed 91.
Now – that is the law under the FLSA – but it is only part of the equation.
If your CBA were to authorize 5 hours of overtime per 12 day period whether you worked 96 hours or not, then contractually you would be entitled to the OT even though the FLSA would not require it… However, as you indicated your CBA seems to acknowledge the practice. But just what does the CBA acknowledge? Is it simply that you will not receive OT? What about the 5 hours?
That is the bigger question. Are you (a) getting shorted on your pay in that you should get 96 hours of straight time when you use a sick or vacation day OR (b) should you only be charged 19 hours of sick/vacation time for the first sick or vacation day used each week?
Without seeing the actual CBA language and researching past case law interpreting similar provisions – it is hard to draw a firm conclusion. What is clear is that the issue is not an FLSA question, but rather is contractual in nature. As such it will likely require a grievance to resolve. The department may argue the existence of a past practice of only paying 91 hours – even though your hours worked plus sick leave used equals 96 hours – but it would appear that you have a good faith argument that you are being shorted one way or the other.
IMHO they should either be paying you 96 hours of straight time when you use a sick or vacation day OR they should only charge you 19 hours for sick or vacation time.
Certainly if any of the other Legal Eagles out there care to weigh in – I’d appreciate it. Am I missing something?
