Burning Question – Does the FLSA Prohibit Paying Hourly Employees a Salary?

Today’s burning question: Our firefighters work a standard 24-48 hour schedule, with a 14 day work period coinciding with a 14 day pay cycle. Under this system firefighters work 96 hours one pay period, 120 hours the next, and 120 hours the next, on a repeating basis throughout the year.

We pay the firefighters overtime whenever they work more than 106 hours in a pay period, but they receive the exact same salary check every two weeks absent them working any overtime. Does this violate the FLSA? Said another way does the FLSA require us to pay them less the pay period they work 96 hours?

Answer: The FLSA does not dictate how an employer must compensate hourly employees. An employer can pay employees on an hourly basis, but it could also pay them a flat daily rate, a flat weekly rate, a flat monthly rate, an annual salary, or any other basis it chooses. All the FLSA requires is that the employer pays them at least minimum wage for all hours worked, and 1 ½ times their “regular rate” for hours that exceed the statutory maximum.

While most employees are entitled to overtime after 40 hours in a week, firefighters are not entitled to overtime until we have worked 53 hours in a 7 day work period, and our work period may be extended to as many as 28 days – in which case overtime is not required until 212 hours are worked.

What all this means in your department is that firefighters can be paid an established hourly rate, or they can be paid a salary. If they are paid on an hourly basis and they work 96 hours in a given 14 day pay period they can be paid 96 times the hourly rate. But this method of paying them is not the only way they can be paid, and is not mandated by the FLSA.

The FLSA would allow the firefighters to be paid an annual salary, divided into 52 equal payments, or 26 equal payments, or even 12 equal payments. This could be done regardless of the hours actually worked in that pay period, provided the firefighters do not go below minimum wage and they are paid overtime for any hours in excess of 106.

Confusing, perhaps. We discuss these sorts of challenging questions in depth in our class, FLSA for Fire Departments. There is a lot to it – but to answer the question as simply as possible – the FLSA does not require that employees be paid an amount that reflects the hours that they actually worked in a given work period, nor does it prohibit hourly employees from being paid on a salary basis. An employer can pay employees a set salary, so long as that salary does not cause an employee to receive less than minimum wage for the hours worked, and the employee receives overtime for hours that exceed the statutory maximum.

There are some other things to consider that are beyond the scope of this article, most importantly: state law wage payment acts. Then there is a rather strange ruling from the 5th Circuit, in a case, Singer v. Waco. I’ll leave those for another time.

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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