Today’s burning question: Do we have to pay part-time firefighter/EMS employees for their lunch break? As an employer can you designate a lunch period as non-compensable unless they are called out to respond during that designated lunch period? Part-time firefighter/EMS employees are scheduled to work 8 hours but are at station for 9-hours, including the 1-hour lunch period.
Answer: First of all, the FLSA does not draw a distinction between full-time, part-time, or per diem employees. An employee is an employee.
Second, the general rule is that meal breaks are not compensable provided they are for at least 30 minutes, and the employee is completely relieved from work. Thus, an employer can generally deduct a one-hour lunch break from the employee’s hours provided the employee is completely relieved for that entire hour. Completely relieved means they can have no affirmative obligations to do things like answer the phone, answer the door, complete reports, or respond to alarms. They can be required to remain on the premises, but they must otherwise be completely relieved. If they are available to be dispatched, they are not completely relieved. Here is a link to the general rule: 29 CFR § 785.19
There is an exception to the general rule for employees who work long shifts. Employees who work shifts of 24 hours or longer are entitled to be paid for their meal periods, absent an agreement between the employer and employee to deduct for “bona-fide meal periods”. Without an agreement, meal time is compensable for those working 24 hours or longer. 29 CFR § 785.22
Here is where things get complicated. There is an important exception to the general rule for employees in fire protection activities (ie. 7k firefighters). Firefighters who qualify under 7k and are paid overtime in accordance with 7k, who are “assigned to a duty station” must be paid for their meal time UNLESS they are assigned to a tour of duty LONGER THAN 24 hours, AND there is an agreement to deduct for meal time, AND the meal time is 30 minutes or longer, AND they are completely relieved. Let me quote from the regulations 29 CFR § 553.223 Meal time.
(c) Where the public agency elects to use the section 7(k) exemption for employees in fire protection activities, meal time cannot be excluded from the compensable hours of work where (1) the employee in fire protection activities is on a tour of duty of less than 24 hours, and (2) where the employee in fire protection activities is on a tour of duty of exactly 24 hours, which is a departure from the general rules in § 785.22 of this title.
(d) In the case of police officers or employees in fire protection activities who are on a tour of duty of more than 24 hours, meal time may be excluded from compensable hours of work provided that the tests in §§ 785.19 and 785.22 of this title are met.
As a result, a very important question arises for you: are the firefighter/EMS employees in question being treated as 7k firefighters? Asked another way – are they entitled to overtime after 40 hours per week, or 53 hours per week (212 hours in 28 days)? If they are treated as 7k firefighters, then their lunch break is compensable. They would have to be working a tour of duty longer than 24 hours in order for it not to be compensable.
If they are not 7k firefighters, then § 785.19 (the general rule) applies and so long as they are completely relieved, the one-hour lunch break would be deductible.
I know this seems complicated, but like a lot of things, the more you understand it – the less complicated it will seem. That is why our FLSA for Fire Departments program is a twenty-four-hour program. Our goal is to get you to the point where you can understand the major issues, and make sense of the FLSA, the regulations, the Department of Labor’s Opinion Letters and of course the cases. Our next FLSA for Fire Departments webinar is February 9-13, 2021.