KC EMS Personnel Not Dual Trained for FLSA Purposes

A plan by the Kansas City (MO) Fire Department to incorporate EMS personnel into the department and require them to work 53 hours per week instead of 40 hours has been found to run afoul of the Fair Labor Standards Act.

A ruling issued last week by US District Court Judge Beth Phillips concluded that the city’s plan to treat former employees of the Municipal Ambulance Services Trust as firefighters was flawed.

EMS personnel filed suit in 2011 claiming that despite being given 40 hours of fire training and having their jobs with KCFD being classified as “Fire Technicians” and “Fire Medics”, they are not firefighters for FLSA purposes. At issue is what’s called the 7k (or §207(k)) firefighter exemption.

While most employees are entitled to overtime compensation after 40 hours per week, under §207(k) of the FLSA firefighters may be required to work 53 hours per week (212 hours in 28 days) before overtime is required. Regulations issued in 1999 allow cross-trained firefighter-EMS personnel to fall under the §207(k) exemption. However, EMS personnel who are not dual function firefighter-EMS are entitled to overtime after 40 hours.

According to Judge Phillips:

  • On April 25, 2010, the City transferred its ambulance services from Municipal Ambulance Services Trust (“MAST”) to the City fire department. Employees of MAST, including Plaintiffs, then became employees of the City. Upon integration of MAST services to the City, Plaintiffs were assigned to 24-hour shifts and were considered Fire Technicians or Fire Medics.
  • Currently, the City treats Fire Technicians and Fire Medics as exempt… [firefighters] under § 207(k) of the FLSA…
  • [N]ew EMTs and paramedics hired by the City fire department complete firefighter training and are dual-function firefighters. Dual-function EMTs and paramedics are fully trained firefighters but employed as EMTs and paramedics.
  • Plaintiffs are not dual-function firefighters.
  • Unlike dual-function firefighters, Fire Technicians and Fire Medics do not receive the same training as firefighters employed by the City. They are required to complete a 40-hour training course while firefighters employed by the City must complete over 250 hours of training. They are also not trained in all duties of fire suppression, such as performance duties in the hot zone of a fire or how to use a self-contained breathing apparatus…
  • On August 1, 2011, the City fire department issued the General Administrative Guidelines (“GAG”), stating that Fire Technicians and Fire Medics “shall have the legal authority and responsibility to engage in fire suppression duties and other emergency operations. These personnel shall be restricted from performing any duties in the ‘hot zone’ and shall perform duties within the ‘warm zone.’”
  • The City fire department further defines the responsibilities of Fire Technicians and Fire Medics in the General Operations Guidelines (“GOG”), stating that they “shall be involved in activities within the ‘warm zone’ of emergency scene incidents and not operations within the ‘hot zone.’”
  • Plaintiffs contend that the City’s policy to not compensate them for hours worked in excess of 40 violates the FLSA because Plaintiffs: (1) did not and do not have the legal authority to engage in fire suppression; (2) do not have the responsibility to engage in fire suppression; (3) are not trained in fire suppression; and (4) are not engaged in fire suppression.
  • Specifically, Plaintiffs argue they did not have the legal authority to engage in fire suppression until the City issued the GAG in August 2011. Moreover, they contend that regardless of whether they have the legal authority to engage in fire suppression, they do not have the responsibility to do so because they lack the training and equipment to be firefighters, and do not actually fight fires.
  • It is undisputed that Plaintiffs do not have the same training as firefighters employed by the City. Plaintiffs receive only 40 hours of training while firefighters receive 270 hours of training.
  • Plaintiffs are not cross-trained as firefighters and they are not trained in actually fighting fires, entering burning buildings, or in any suppression activities for the hot zone of a fire. Plaintiffs are only trained in fire combat support, which is different from fire suppression.
  • Based on these substantial differences in training, the City’s argument that Plaintiffs were trained in fire suppression duties as defined by the FLSA is unpersuasive.
  • Further, Plaintiffs are not expected or permitted to fight fires. In addition to not receiving full fire suppression training, Plaintiffs are not issued the proper equipment to fight fires.
  • Plaintiffs cannot reasonably be expected to fight fires when they do not have the required equipment or training to do so, and are not actually fighting fires..
  • Based on the evidence before the Court demonstrating that Plaintiffs are not trained in fire suppression and do not have the legal responsibility to engage in fire suppression, the City has not met its burden to show that Plaintiffs “fit plainly and unmistakably within the [overtime] exemption’s terms and spirit.” …. Therefore, summary judgment in favor of Plaintiffs is proper.

Here is a copy of the ruling: Hermsen v KCMO

Just to clarify – as Judge Phillips recognized, all NEW KC personnel are dual trained firefighter-EMS, and thus do fall under the §207(k) exemption. Thus the ruling only impacts those employees who were brought over from MAST.

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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