Overtime Burning Question: 14 or 28 Day Work Period

Today’s burning question: My department pays us every other week, but calculates overtime based on four-week intervals. The problem is that if I take any time off (vacation or sick) during the four-week period and I work extra hours, they pay me straight time for the extra hours, not overtime. Since they pay me every two weeks shouldn’t they calculate overtime based on two week periods, not four?

Answer: Great question, and one with a complicated answer.

First, this is only a problem for police and fire departments… courtesy of Congress. Under the Fair Labor Standards Act (FLSA) every other profession in the US works a 7 day work week while police and fire departments have the option of establishing work periods of 7 to 28 days. What that means is for everyone but police and firefighters, extra hours worked in week one is unaffected by time taken-off in week 2, 3 or 4 for purposes of calculating overtime.

And BTW… Firefighters are the ONLY profession that Congress allows to work 53 hours per week (212 hours in 28 days) without overtime. Police maximum hours are 43 per week (171 hours in 28 days)

Second, if you work over the statutory maximum for the selected work period, you must be paid overtime for the extra hours. However, when calculating hours worked for overtime purposes, the employer only has to count hours actually worked. Thus sick leave, vacation, Kelly days, etc. need not be included.

Third, if a fire department formally establishes a 28-day work period, then it can do exactly as you suggest: calculate overtime based on the 28 days and deduct the hours you do not work from your total hours calculation to determine if you are eligible for overtime. Once established, a formal work period is not effected by how frequently employees are paid. A fire department with a 28 day work period could pay employees daily, weekly, biweekly, or monthly (assuming it is allowed by state law), provided overtime is calculated based upon the 28 day work period.

Last, if a fire department fails to formally establish a work period, it then becomes a question of fact to determine what work period the department has in fact been using. If a fire department pays its employees weekly and calculates their overtime on the basis of a seven-day workweek, then a court (possibly even a jury) will likely find the department has adopted a seven-day work period.

On the other hand, if the department pays its employees every other week as you indicate your department does – but it calculates overtime on a 28-day work period… my guess is the court would find a 28-day work period. While certainly other facts may cause a case to go in a different direction, the department’s own practice in calculating and paying overtime will certainly be an important consideration when the court has to determine a work period.

So to summarize, assuming your department has properly adopted a 28-day work period, it can lawfully pay you every other week but calculate your overtime based on 28 days. If the department did not properly adopt a 28-day work period – then the fact they pay you every other week would be one factor the court may consider in establishing the work period. However, the court will more likely be persuaded by whether the department has been using 14 days or 28 days for its overtime calculations.

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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