Substitutions, Acting Out Of Rank, and The FLSA

Today’s burning question:  Our department allows substitutions, not just within ranks, but one rank up and one rank down. As a result, concerns have arisen about what the FLSA requires when a substituting member acts out of their designated rank.  For example, if a firefighter trades with a driver or a driver trades with a lieutenant, is the member who is acting up entitled to any additional compensation? Complicating the matter is the fact we use available personnel in whatever position would be beneficial for the shift that day. Members who are substituting are routinely used in a different capacity from their paid rank and/or the rank they are substituting for. For example a firefighter who is subbing for a driver may work as firefighter or a driver, and a driver subbing a firefighter may work as a firefighter, driver or lieutenant.  If the original assigned member were present he/she may be eligible for acting out of rank pay, so shouldn’t the member who is acting?

Let’s get even more specific. A firefighter and driver trade shifts. When the firefighter is working for the driver, he works in a driver’s capacity as though the driver was there.  When the driver works for the firefighter, he works in a firefighters capacity as though the firefighter was there.

Question 1:  When the firefighter works as a driver, and the driver works as a firefighter, should the firefighter be paid for working out of position as a driver?

Question 2:  When the firefighter works as a driver, and then the driver works as a driver, should the firefighter be paid for working out of position as a driver?

Question 3:  When the firefighter works as a driver, and the driver works as a lieutenant, should both of them be paid for acting out of rank?

Answer: As complicated as your situation appears to be, from a Fair Labor Standards Act perspective it is rather simple: it is up to the employer and employees to work out these kinds of details. Workplace rules, not the FLSA, govern who (if anyone) is entitled to extra pay. In fact, from the FLSA’s perspective, substitutions are treated as if they never occurred.

As such – it is up to each fire department to determine its compensation scheme for members who are substituting. There is no right way or wrong way to handle these sorts of issues from the FLSA perspective. If your jurisdiction has a collective bargaining agreement, compensation for acting out of rank while subbing should be negotiated and worked out between labor and management. In non-collective bargaining environment it would be up to the employer to establish who will be paid… mindful that there may be civil service, state laws, local ordinances, past practices, etc. that may impact the ultimate decision.

Having said that, when an employee receives additional compensation, such as acting out of rank pay, there often will be an FLSA implication should that employee also be eligible for overtime during the same work period.   Overtime compensation is based upon one-and one-half times a member’s “regular rate”, and part of an employee’s regular rate includes additional compensation for things such as acting out of rank.

Calculating regular rate is a relatively complex topic that we will leave for a different post. It is something we cover extensively in our 3-day program, FLSA for Fire Departments. Join us in either Providence, RI (eastern states) or Mesa, Arizona (western states). These are only FLSA classes we will be holding in 2018.

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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