Chiefs, Overtime and Extra Compensation

Today’s burning question: I am in charge of our fire department’s training academy. We are losing our senior instructors to promotions because once they become Battalion Chiefs (or higher) we cannot compensate them to teach on their days off… not even straight time. I am told this is because they are exempt under the FLSA but cannot find any legal clarification that explains what is going on. Why can’t we at least pay these officers straight time to come back and teach on their days off? It’s not like we are saving money because I have to pay captains overtime to teach. Paying a chief straight time is cheaper than paying a captain overtime.

Answer: Great question… and one that definitely needs to be evaluated by your legal counsel to ensure compliance with state law and local concerns. However, my guess is the city is concerned that if they pay the chiefs anything beyond their salary, it will open the door for the chiefs to claim they should be classified as hourly employees for all purposes.

For the sake of this posting, let’s assume the chiefs are properly classified as exempt executives (ie exempt from receiving overtime), which may or may not be correct.

The city’s decision makers are either (a) unaware that the FLSA allows exempt employees to receive extra compensation for extra work without jeopardizing their exempt status or (b) don’t care about your dilemma – and believe they are saving money because these chiefs will do the work for free. (As a side note, these budget conscious folks typically work 35-40 hours a week. In their minds “extra hours” for executives involves staying late or coming in early on occasion – and comes with the turf. These folks might have to work an extra few hours here or there….  Perhaps some regularly work 45 to 50 hours and in an unusual week may have to come in for part of a weekend. They are oblivious to the fact the line chiefs are already working 56 hours a week EVERY WEEK, ALL YEAR LONG, YEAR AFTER YEAR including holidays and weekends… not to mention the normal extra few hours a week that all exempt employees have to work… bringing their weekly total to over 60 hours a week every week. I have dealt with folks like that all my life… “What do you mean those chiefs want to get extra pay for working extra. I don’t get extra, why should they?” They simply need to be educated on the burden placed on these chiefs already).

If your problem is that the city administrators are unaware of the law, the solution is simple: education. The FLSA allows an employer to pay an exempt employee additional compensation for additional work. In your situation the exempt chiefs could be paid straight time (or even overtime) without jeopardizing their status as exempt executives. Here is the applicable federal regulation

29 CFR § 541.604 Minimum guarantee plus extras.

(a) An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Thus, for example, if the current weekly salary level is $913, an exempt employee guaranteed at least $913 each week paid on a salary basis may also receive additional compensation of a one percent commission on sales. An exempt employee also may receive a percentage of the sales or profits of the employer if the employment arrangement also includes a guarantee of at least $913 each week paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $913 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-half or any other basis), and may include paid time off.

Showing them how much more economical it would be to pay the chiefs straight time may also be enough to convince them. However, there may be some state law or local policy that may also come into play, which is why you need to have the situation evaluated by a local attorney who is knowledgeable about wage and hour law.

If the problem is the city’s decision makers don’t care about your dilemma, no amount of education will make a difference. Perhaps it is time to find a better employer to work for. I wish I had another solution.

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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