FLSA and Per Diem Employees

Today’s burning question: Does the FLSA’s 7k Exemption – that increases the hours firefighters must work before being entitled to overtime from 40 hours per week to 53 hours per week/212 hours in 28 days – apply to per diem firefighters? I understand the FLSA makes no distinction between full-time and part-time, but how about per diem personnel? When coupled with a 28-day work period it would seem an employer could load up per diem employees and thereby manipulate hours to avoid overtime liability.

Answer: You raise a good point about manipulation, but the FLSA makes no distinction between full-time, part-time, or per diem firefighters. While full and part-time employees typically have a set schedule, per diem employees can be called in as-needed. When coupled with the 28-day work period an unscrupulous employer could require an employee to work an excessive number of hours in the last week to 10 days of one work period and the first week to 10 days of another work period without triggering overtime liability.

Conceivably a fire department could require a per diem employee to work 424 hours straight without triggering an overtime requirement under the FLSA. To do this the first 212 hours must be worked in one work period and the second 212 hours must be worked in the following work. It’s awful but lawful.

Before crying foul on behalf of per diem employees… this bunching of hours around the end/start of a work period could be applied to full and part-time employees. However it is unlike to occur to such personnel because they work set schedules. Again, the FLSA makes no distinction between full-time, part-time or per diem firefighters.

One final point: an employer cannot manipulate an employees work period in a way that disadvantages the employee. What I mean is an employer cannot shorten or lengthen a work period in an effort to change an employees’ entitlement to overtime. However, provided the work period remains unchanged, an employer is within its rights to use per diem employees for up to 212 hours in a 28-day period before have to pay overtime.

FLSA Class: North Carolina – Nov. 15-17, 2016

FLSA Class: Mesa, Arizona – December 6-8, 2016

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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