Should Additional Hours Be Paid as Overtime or Straight Time
Today’s burning question: Our attorney is claiming we are wrong to pay overtime to firefighters unless they physically work 212 hours in a 28-day period. We have always paid overtime to our personnel for all hours over and above a firefighter’s assigned work schedule. The attorney says that if a firefighter takes a vacation day (24 hours) during the 28-day period and works an extra 24-hour shift, we only need to pay him straight time for those 24 hours.
Answer: The FLSA is intended to be the MINIMUM wage and hour law that employers must respect. An employer can always pay an employee MORE than the minimum wage (most employers see a benefit to doing so to attract and retain good people)… as well as overtime when not required by the FLSA. So you are not wrong to pay your firefighters the way you have been. It is just that it is not mandatory under the FLSA.
An employer may also be required to pay more than FLSA minimums due to a contractual provision, or in some cases due to state law. If the firefighters have a collective bargaining agreement that specifies that overtime must be paid for all hours worked over their regular assignments, the collective bargaining agreement would take precedence over the FLSA minimums. In such a situation the employer would be legally required to pay OT under state law even though it exceeds the FLSA minimums. In the Northeast most fire departments are required by contract to pay OT after 42 hours.
What is disturbing to me are the bean counters – including some bean-counting attorneys – who earnestly believe paying anyone more than the absolute minimum is foolish and wasteful… They belong to the Scrooge School of Management and Ethics. Oddly enough, they do not believe that same rule should be applied to them… apparently they somehow rationalize that they are “special”. Hypocrite is the more accurate term.
I say an honest day’s wages for an honest day’s work. The FLSA should be viewed as the absolute bare minimum to protect employees from wage theft from the new-age robber-barons. It is not the gold standard beyond which an employer should be considered to be extravagant. Having said that, the FLSA does not mandate firefighters receive overtime until they have actually worked 212 hours in a 28-day period (or 53 hours in a 7 day period).
We will be discussing issues like this at our upcoming FLSA for Fire Departments program in Las Vegas in February, 2016 and Chicago in August, 2016.
Does hours worked have anything to do with full time or part time status?
Jim – I am not sure I understand the question. The FLSA applies to both full and part time employees…
This does make me want to check our contract to ensure coverage. Those things that have always been, may change with new administrations, whether it’s the “right thing” or not. We’re seeing a lot of proposed work rules, crafted to cover everything not covered by contract, I can see this rearing it’s ugly head at some point.
Mr. Varone… does FLSA overtime pay have to be included in a pension by law? Our pension is fighting us right now saying that they don’t have to include it because it is overtime even though it is part of our regular schedule.
John – There is nothing in the FLSA that requires overtime to be included in a pension. That is NOT to say there are not state and local laws – as well as collective bargaining agreements – that may require it. Just that the FLSA does not go that far.
Mr. Varone… I should have been more clear… we are required to work 192 hours per our 24 day FLSA period. By FLSA law we must be compensated at time and a half for the last 10 hours of the 192 that we work. Our city is trying to argue that because we are compensated at time and a half for those ten hours, they are overtime hours and don’t have to be counted as pensionable wages, even though they are part of our normal regular contract hours. What do you think? Do we have a gripe? Thanks.
John… your question is a bit too close to asking for legal advice which is beyond what I can give you outside of an attorney-client relationship. As I said above – the FLSA does not mandate that overtime hours be included in pension calculations – nor does it require you even receive a pension. You would have to look to what ever law gives you the right to a pension to answer your question. That needs to be answered by an attorney licensed in your jurisdiction after researching all applicable issues.
Thanks Curt. I’m going to try to get sponsored to attend your FLSA conference in Vegas in Feb. Our Department and union is much too large to not have anyone with a firm understanding on FLSA laws.
What comes first the 212 or the 53 hours? We might have to work 96 in one week and cut out the next week. As part time employees. Is this right?