FLSA Subbing Followup

Today’s burning question: You recently addressed a burning question on substitutions in your newsletter, and I have a followup. FF A agrees to trade a shift with FF B. FF B substitutes for FF A, but when it comes time for FF A to work for FF B, FF A calls in sick. Under the FLSA, who should get charged for the sick day, FF A or FF B? Also does FF A’s absence impact FF B’s eligibility for FLSA overtime, or does it impact his own eligibility?

Answer: The FLSA does not address sick leave issues associated with substitutions. That being the case, it is really up to collective bargaining to address who gets charged for FF A’s sick leave. In the absence of collective bargaining, workplace rules set by the employer would govern. Some jurisdictions would charge the sick leave to FF A, some would charge it to FF B, some would dock one of the firefighters a day’s pay, and some would take away a vacation day from one of them. There is no absolute right way or wrong way to address the problem.

Your second question actually raises a very complex issue that I had never considered, nor seen discussed or decided in any case. This will be a tough one to understand. If you are not a fan of advanced FLSA issues, you may want to tune out right here. For the FLSA junkies… let’s dig in!!!!!

To better explain the issues, assume FF A and FF B work a 24 on 48 off schedule, and a 28 day work period with no Kelly Days. Firefighters on this schedule either work 9 shifts in 28 days (216 hours) or 10 shifts (240 hours).

Under the FLSA firefighters are entitled to overtime for all hours over 212 in a 28 day work period. Eligibility for overtime is a function of hours actually worked. In other words, only hours actually worked count toward maximum hours and overtime. Thus, when a firefighter misses work due to vacation, sick leave, injury or time off, those hours do not count toward overtime eligibility.

Lets assume FF A and FF B are scheduled to work 9 shifts (216 hours) in the work period in question. If they each work all 9 shifts, each will be entitled to 4 hours of overtime since they will have worked 216 hours.

Now let’s assume FF A and FF B agreed to trade a shift. Normal subbing is not a problem under the FLSA. As a general rule, an employer may ignore the substitution and calculate each employee’s eligibility for overtime based upon who was scheduled to work as opposed to who actually worked.

Here are the two laws that explain the general rule:

  • 29 USC §207 (p) (3) If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public agency and solely at the option of such individual, to substitute during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.
  • 29 CFR §553.31 Section 7(p)(3) of the FLSA provides that two individuals employed in any occupation by the same public agency may agree, solely at their option and with the approval of the public agency, to substitute for one another during scheduled work hours in performance of work in the same capacity. The hours worked shall be excluded by the employer in the calculation of the hours for which the substituting employee would otherwise be entitled to overtime compensation under the Act. Where one employee substitutes for another, each employee will be credited as if he or she had worked his or her normal work schedule for that shift.

Now factor in FF A calling in sick while subbing for FF B. What impact does this have on FF A’s or FF B’s eligibility for the 4 hours of overtime for that work period?

Neither 29 USC §207(p)(3) or 29 CFR §553.31 directly explain what should happen when FF A calls in sick while subbing for FF B. Applying the reasoning in 29 CFR §553.31 an argument could be made that we should ignore the substitution in which case FF B would be not be entitled to the 4 hours of overtime because he would have only worked 8 shifts (192 hours) in that work period due to FF A’s absence for one shift.

However, an argument could also be made that 29 USC §207(p)(3) and 29 CFR §553.31 only apply when a party actually works as a substitute. The language is difficult but look at §207(p)(3) which states “the hours such employee worked as a substitute shall be excluded” and §553.31 which states “Where one employee substitutes for another”. One could argue this language requires that FF A actually have subbed for FF B in order for the hours to be “credited as if he or she had worked his or her normal work schedule for that shift.”

Very very difficult area… and I would invite the Legal Eagles out there to join in the discussion. Should FF A’s calling in sick cost FF B overtime? Should FF A lose the 4 hours of overtime? If so, how do you rationalize it based – not on fairness – but on the FLSA?

Would one method serve as a better deterrent to the scammer firefighters who might be prone to made a trade with no intention of actually working the repayment shift?

#FLSAheadache

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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