Burning Question: Cancelling Kelly Days

Today’s burning question: Can a fire department cancel a firefighter’s assigned Kelly Day without violating the Fair Labor Standards Act? For example, if firefighters work a 24/48 schedule with Kelly Days every third work period, can the department contact personnel scheduled to be off on a Kelly Day, and require them to work?

Answer: The FLSA neither allows nor prohibits Kelly days. The FLSA merely requires an employer to pay non-exempt employees minimum wage for all hours worked, and time and one-half their regular rate for all hours worked beyond the statutory maximum. As such, the right of the employer to cancel a firefighter’s day-off (whether it is a Kelly day, personal day, or vacation day), will turn on state law. What that means is: if the employer has the right to cancel a day-off under the its policies and any applicable collective bargaining agreement, it may do so. In a collective bargaining jurisdiction such a practice would likely have to be bargained.

While cancelling a Kelly day may not be prohibited by the FLSA, that does not mean there will be no FLSA consequences. Kelly days serve an important purpose: reducing the hours the firefighter is schedule to work. Most fire department that grant Kelly days do so to avoid having to pay overtime. Let’s look at an example for firefighters who qualify for the 7k partial exemption: if a firefighter works a 24-48 schedule on a 28-day work period, every third work period the firefighter will be scheduled to work 240 hours. By giving the firefighter a 24-hour Kelly day during that work period, it will reduce the hours worked to 216 hours, entitling the firefighter to 4 hours of overtime. If the employer cancels the Kelly day, and assuming the firefighter works the entire 240 hours scheduled, he/she will be entitled to 28 hours of overtime.

So to summarize, under the FLSA an employer may indeed be able to cancel a Kelly day, but the employer cannot then avoid the overtime obligation created by having the firefighter work those extra hours.

Don’t miss our upcoming advanced FLSA webinar: Advanced FLSA: I Think We Screwed Up, What Do We Do Now? August 16, 2021 – 1PM Eastern.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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