Coronavirus Shift Change and the FLSA

Today’s burning question: Our firefighters work a 24-48 schedule on a 28-day work period. The firefighters average either 216 or 240 hours in each 28-day work period. In light of the coronavirus emergency, we have decided to implement a 7-day on, 14-day off schedule. We have a very light workload and do not anticipate exhaustion being an issue. We are also a non-collective bargaining department and our personnel support the move (they suggested it). Does the FLSA prohibit such a schedule? And if not, how would we implement it?

Answer: There is nothing in the FLSA that prohibits a 7-day on, 14-day off schedule. However, exhaustion would be my biggest concern. Assuming you can get by that, your next issue is whether state law may prohibit such a schedule. Some states place limits on hours, and require overtime and/or double time after certain consecutive hours are worked.

The most complicated part of your question will be the implementation. Under your current schedule, each work period has one shift working 240 hours (28 hours of overtime), and two shifts working 216 hours (4 hours OT). That typically results in “long” and “short” pay checks for your personnel, reflecting either 28 hours of overtime, and or 4 hours of overtime.

You will note that once you couple a 28-day work period with your new schedule and there is going to be a very serious problem. Each work period, two shifts will only work 168 hours (no overtime), but one shift will work 336 hours (124 hours of overtime). WOW!!!

No need to panic… there is a solution.

Your proposed 7-day on, 14-day off schedule would lend itself to a 21-day work period. Each work period would result in an identical overtime load of 9 hours per pay period. No more long and short checks!!!

The FLSA allows employers to alter a work period, and the US Department of Labor has regulations on how to do it (29 CFR §778.301 and § 778.302). Essentially, you will need to formally adopt the new work period on a permanent basis. Temporary changes in work periods are not permitted. Since you do not have collective bargaining, you will not need to negotiate the change with the union.

If at all possible, it would be advantageous for you to start the new schedule and 21-day work period at the same time, at the start of your current 28-day work period. That will avoid the need to do some advanced calculations. However, if you implement the new work period in the middle of one of your current work periods, you will have to evaluate the hours worked by all personnel during the changeover period both ways (under the old work period and the new work period), and pay each employee based on the calculation that yields them the higher compensation.

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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