Today’s burning question: I read that if an employee comes in early or stays late they have to be paid for the time. I regularly get to work 45 minutes before my normal shift. I typically relieve a member and hang out til shift change. Does the FLSA require the department to compensate me for that extra time?
Answer: The FLSA mandates that employees be paid for all hours worked. That includes work performed outside of the regular work hours such as when an employee comes in early or stays late. It does not matter whether the employer requested the extra work or the employee did it voluntarily. So long as the employer knows or has reason to know that extra work was performed, the employer is required to compensate the employee for the extra time.
That is the general rule.
The general rule also has a number of exceptions. One of those exceptions that was implemented by the US Department of Labor is 29 CFR §553.225. This regulation states that under certain conditions firefighters do not have to be paid for time spent as an “early relief.”
553.225 Early relief.
It is a common practice among employees engaged in fire protection activities to relieve employees on the previous shift prior to the scheduled starting time. Such early relief time may occur pursuant to employee agreement, either expressed or implied. This practice will not have the effect of increasing the number of compensable hours of work for employees employed under section 7(k) where it is voluntary on the part of the employees and does not result, over a period of time, in their failure to receive proper compensation for all hours actually worked. On the other hand, if the practice is required by the employer, the time involved must be added to the employee’s tour of duty and treated as compensable hours of work.
The DOL understood the potential ramifications the FLSA could have on firefighters and carved out the early relief exception. The requirements that must be met in order for the exception to apply are as follows:
- The exception only applies to “employees engaged in fire protection activities”, and
- There must be either an express or implied agreement between the firefighters, and
- The early relief must be completely voluntary, and
- The early relief “does not result, over a period of time, in their failure to receive proper compensation for all hours actually worked.”
The regulations assume that the firefighter who comes in early will also be relieved early, and thus there is not a disproportionate number of extra hours worked by any one firefighter “over a period of time.” The early relief must be voluntary between the involved members. Should the early relief be mandated by the department, the time is compensable.
So the answer to the question is – provided the early relief meets the requirements of 29 CFR §553.225, compensation is not required. This is just one of many topics discussed in-depth at all of the upcoming Fair Labor Standards for Fire Departments conferences.