Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: I was wondering if you knew the origin of the firefighter exemption from the 40-hour work week? It seems to me that firefighters are treated unfairly compared to virtually any other profession in the US by having to work those extra hours. Has there ever been a push to remove that exemption?
Answer: The law you are referring to is the Fair Labor Standards Act, and more specifically 29 USC 207k within the act. The FLSA was enacted by Congress in 1938. At the time, it did not apply to state and local governments. Thus, there was no need for special regulations to address the hours worked by firefighters and police officers, who typically worked longer hours than most other employees.
In 1974 the FLSA was amended to apply to state and local governments for the first time. At that time, Congress enacted the 207k exemption (usually referred to as 7k exemption) to allow firefighters (who commonly worked an average of 48-56 hours a week) and police officers (many of whom worked 45-48 hour schedules) to continue working those hours with minimal impact to taxpayers. In addition, to address the inherent variation in weekly hours that firefighters and police officers had due to their rotating schedules, the 7k exemption extended the 7 day work week applicable to everyone else, to a work period that could be between 7 and 28 days long.
In 1976, the US Supreme Court struck down the application of the FLSA to state and local government for core governmental activities, including police and firefighters, as being an unconstitutional intrusion on state’s rights. National League of Cities v. Usery, 426 U.S. 833 (1976). Nine years later, the US Supreme Court revisited the Usery decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). This time the Supreme Court reversed course, ruling that Congress could apply the FLSA to state and local governments. It was at that point that the 7k exemption truly went into effect.
I am not aware of any serious effort to lower the maximum hours for firefighters from 53 per week (212 in 28 days), despite the grumblings of firefighters. Any change to the 7k requirement would have to come from Congress, although state legislatures could enact laws to reduce the maximum hours for firefighters within their state. My sense is there is a genuine concern that such a change would have a devastating impact on staffing levels in many fire departments.
