Burning Question on FLSA, Hours Worked, and Training

Today’s burning question: If a firefighter is given their scheduled shift off in order to attend training, do we count the hours that the firefighter was scheduled to work as time worked for overtime purposes? To make it simple if a firefighter is scheduled to work 240 hours in a 28-day work period, and the department gives the firefighter two 24-hour shifts off in order to attend a class, is the firefighter still entitled to 28 hours of overtime (240 – 212 = 28) for that work period?

Answer: The answer has two parts. First, the Fair Labor Standards Act only requires an employer to count hours actually worked for compensation purposes. It does not matter why the person does not work. They could be out sick, they could be on vacation, or they could have been given time-off for training. Under the FLSA, employees only have to be compensated for hours actually worked.

Having said this, state law, local law, collective bargaining agreements, and past practices may require a fire department to count the hours scheduled as time worked, even though the FLSA does not. It is important to have an attorney from your jurisdiction research this issue and determine whether such a requirement applies in your department.

The second part of my answer may be something you did not contemplate, but it is on the table nonetheless. It has to do with whether the employee must be compensated for attending the training he/she was given time off to attend. The general rule is that work-related training is compensable under the FLSA. Training for on-duty employees is compensable, without question or exception.

However, there are six exceptions to the general rule for employees who attend training while off-duty. Three of the exceptions apply when the employee attends the training voluntarily, and three apply whether the employee volunteers or is ordered to attend. This table lists the six exceptions.

Exception Regulations Voluntary Off-Duty
1 Training not directly related to employee’s job 29 CFR §785.27 X X
2 Independent Training 29 CFR §785.30 X X
3 Special Situations – Training like that offered by independent institutions of learning 29 CFR §785.31 X X
4 Training required by law for certification 29 CFR §553.226 (b) (1) X
5 Training required for cert. by a higher level of government 29 CFR §553.226 (b) (2) X
6 Personal time at fire academy 29 CFR §553.226 (c) X

Why is this important? If the training is work related and not subject to one of the off-duty training exceptions, then the hours spent attending the training is compensable. On the other hand, if the training is subject to one of the exceptions, then the department does not have to compensate the employee for the time.

Putting both parts of the answer together, a fire department can allow an employee time-off to attend training that is subject to one of the exceptions without having to count the firefighter’s scheduled hours as time-worked. So in your scenario the firefighter was scheduled to work 240 hours, but only worked 192 hours. Therefore, he/she would not be entitled to overtime for that work period (assuming the training met one of the exceptions). However, if the training is work related and not subject to one of the exceptions, the hours spent in the training will have to be compensated.

Many fire departments allow firefighters time-off to attend training and assume the time-off and the hours spent in training is a wash. In such cases, simply paying the firefighter for the scheduled hours will usually cover the situation. However, that is not always the case. Should the training hours exceed the time-off, the firefighter is entitled to be compensated for the additional time worked – assuming the training is not subject to one of the six exceptions.

Also – just to head off the follow-up questions that inevitably arise when discussing training time, the six exceptions cover a broad array of common training scenarios in the fire service. For example, a firefighter who voluntarily attends training while off-duty, such as classes at the local community college, state fire academy, or conferences such as FDIC, Firehouse Expo, or FRI, does not have to be compensated for the time (Exception 2 – Independent Training). A firefighter who is required to attend EMS refresher training while off duty does not have to be compensated for the time to the extent the training is required by law for certification (Exception 5 – Training required by law for certification). These exceptions are quite complex and must also be reviewed in light of state and local law.

We will be discussing this topic and more at our upcoming FLSA for Fire Departments conferences in Georgetown, Texas – December 10-12, 2019 and Stewart, Florida – February 11-13, 2020.

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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