Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Our fire department recently hired its first full-time firefighters to supplement our volunteers and part-time personnel. Historically we paid our part-time personnel overtime after 40 hours a week. Our new full-time personnel have been designated as being subject to the 207(k) partial exemption, and we have established a 28-day work period. In other words we pay the full-timers overtime only after they have worked 212 hours in a 28-day work period. Can we apply the 207(k) exemption to our part time firefighters and use the same 28-day work period?
Answer: The FLSA does not draw a distinction between full and part-time employees. To the FLSA there are only employees. How many hours your employees work and what you call them (career, full-time, day-time, seasonal, per diem, part-time, volunteers, etc.) is up to you. The FLSA just requires that you pay employees minimum wage and overtime after they work 40 hours in a workweek .
As you point out, the FLSA has a partial exemption for personnel engaged in fire protection activities that allows a public agency to extend the hours to 53 per week, or 212 hours in 28 days before overtime is required. The 207(k) exemption is not limited to full-time personnel. It can be applied to any employee engaged in fire protection activities.
Keep in mind, the FLSA is not the only consideration when it comes to changing the way you pay you employees. There may be state law issues that govern whether you can change the way you have been paying your part-time personnel. There may even be contractual considerations that need to be addressed. That is why you need to consult with local legal counsel to ensure all of the issues are considered.
