Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: We have both shift captains (24 hours-on, 48 hours-off) and administrative captains (8 hour days – 5 days a week). Both are considered to be non-exempt (eligible for overtime). The department prohibits the administrative captains from working overtime on a shift, such as on the weekends. However the organization allows shift captains to work overtime in the training division (which is a where the administrative captains work 8 hours a day) My suspicion for this is due to the shift captain’s hourly rate being figured on a 2912 hour year and not allowing the administrative captain to work on shift due to their hourly rate being figured on a 2080 hour annually schedule. If they are both non-exempt captains, why wouldn’t both be able to work overtime?
Answer: There is nothing in the Fair Labor Standards Act that prohibits administrative captains from working shifts and vice versa. In fact, the FLSA does not recognize ranks as ranks per se. The FLSA is only concerned with ensuring that employees receive minimum wage for up to the maximum hours requirement (40 per week for most folks, 53 per week – up to 212 per 28 days – for firefighters), and overtime for all hours over the statutory maximum. The FLSA does not prohibit paying two people with the same title different rates of pay. The problem, as you suspect, likely has to do with the proper overtime rate for the administrative captains should they work overtime on a shift.
For those not familiar with the issues, let’s assume the captains make a salary of $65,000 per year. Assuming that is all the captains receive for compensation (no wage augments like longevity pay, holiday pay, etc.), the administrative captains would have a regular rate of $65,000/2080 = $31.25 while shift captains would have a regular rate of $22.32. For a 24-hour shift at overtime rates, the administrative captains would receive $1125 while the line captains would receive $803.52. That obviously will create some resentment between the two groups, but absent some workaround, it is what would be required by the FLSA.
The department MAY be able to address the problem and allow administrative captains to work the extra shifts at the same rate as shift captains (or close to it). My guess is the department does not want to deal with the administrative headaches associated with it, and/or cannot secure an agreement with the firefighters’ local to do so. In any event, the problem is NOT an FLSA issue, and without addressing the disparity in a way that meets the requirements of the FLSA, the administrative captains would be entitled to overtime at the 2080-hour rate as opposed to the 2912-hour rate.
Assuming the department and the union are willing to work out a deal, two important regulations come into play: 29 CFR § 778.115 and 29 CFR § 778.419. One solution would involve the establishment of a non-overtime rate of pay for those working in the shift captains position pursuant to 29 CFR § 778.115. The second would require an agreement that captains who work in a shift position are compensated at the lower shift rate regardless of whether they are shift or administrative captains under § 778.419. A huge caveat: these regulations offer very limited and complex exceptions so my advice would be to take these two provisions to an FLSA attorney in your jurisdiction to help figure out which solution would work best. Here are the regs:
29 CFR § 778.115 Employees working at two or more rates.
Where an employee in a single workweek works at two or more different types of work for which different nonovertime rates of pay (of not less than the applicable minimum wage) have been established, his regular rate for that week is the weighted average of such rates. That is, his total earnings (except statutory exclusions) are computed to include his compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs. Certain statutory exceptions permitting alternative methods of computing overtime pay in such cases are discussed in §§ 778.400 and 778.415 through 778.421.
29 CFR § 778.419 Hourly workers employed at two or more jobs.
(a) Under section 7(g)(2) an employee who performs two or more different kinds of work, for which different straight time hourly rates are established, may agree with his employer in advance of the performance of the work that he will be paid during overtime hours at a rate not less than one and one-half times the hourly nonovertime rate established for the type of work he is performing during such overtime hours. No additional overtime pay will be due under the act provided that the general requirements set forth in § 778.417 are met and;
(1) The hourly rate upon which the overtime rate is based in a bona fide rate;
(2) The overtime hours for which the overtime rate is paid qualify as overtime hours under section 7(e) (5), (6), or (7); and
(3) The number of overtime hours for which the overtime rate is paid equals or exceeds the number of hours worked in excess of the applicable maximum hours standard.
(b) An hourly rate will be regarded as a bona fide rate for a particular kind of work it is equal to or greater than the applicable minimum rate therefor and if it is the rate actually paid for such work when performed during nonovertime hours.
As a final point, let me note that whether the administrative captains qualify as “employees engaged in fire protection activities”, will also be a factor in determining the proper outcome in this case. Your question asked about administrative captains who work 40 hours per week and are eligible for overtime. If these administrative captains remain eligible for 207k status, additional questions arise relative to their eligibility for overtime until they reach the maximum hours requirement for their designated work period. We will leave that nuance to another day.
