Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Do fire departments/EMS organizations have to pay personnel for the time spent attending training for EMT and paramedic while off-duty?
Answer: There are several important issues that have to be addressed to fully answer the question, including what is the agreement between the parties, are the employees public employees, and does the training fit into an exception under the Fair Labor Standards Act (FLSA).
First, what is the agreement between the department and the employees regarding compensation? Is there anything in the collective bargaining agreement, personnel manual, past practices, etc. that governs payment for this type of training? Regardless what the FLSA says, if an employer agreed to cover the time for members attending the training, it would be a breach of contract not to pay them. That would be my first issue.
Second, what does the FLSA require? The general rule under the FLSA is that training time is compensable. This is the rule even if the employees previously agreed to attend the training without compensation. However, there are several exceptions to the general rule, and it is possible that EMT/medic training may fit into one of them provided the employees work for state or local government.
The exceptions are set for in the US Department of Labor Regulations:
29 CFR § 553.226 Training time.
(a) The general rules for determining the compensability of training time under the FLSA are set forth in §§ 785.27 through 785.32 of this title.
(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees of State and local governments in required training is considered to be noncompensable:
(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.
(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification of employees of a governmental jurisdiction by law of a higher level of government (e.g., where a State or county law imposes a training obligation on city employees), does not constitute compensable hours of work.
(3) Time spent in the training described in paragraphs (b) (1) or (2) of this section is not compensable, even if all or part of the costs of the training is borne by the employer.
(c) Police officers or employees in fire protection activities, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.
My guess is § 553.226(b)(1) is right on point, provided the state health department “requires by law” the training necessary for EMT/paramedic certification. If the training is not “required by law”, and the training does not fit into any other exception, the time spent attending classes would likely have to be compensated.
There is an interesting case out of Memphis, Tennessee, where the firefighters sought compensation for attending paramedic training while off-duty claiming while the state may have mandated the level of training that a paramedic needed, the state did not mandate that all firefighters be paramedics. They claimed that since it was the city who required them to be paramedics, 29 CFR § 553.226(b)(1) did not apply. The 6th Circuit rejected that analysis saying that they key point is whether the state mandated the training for paramedics, not whether the FD required the firefighters to be paramedics. The case was Misewicz v. City of Memphis, 771 F.3d 332, (6th Cir. 2014).
Again, §553.226(b) only applies to employees of state and local government. Private sector employers would not be entitled to that exception and would have to pay employees for such training. Also it is possible that state wage and hour laws may supersede the FLSA providing employees with more generous treatment. When addressing questions of this type – one always needs to consider state law as well as the FLSA.
Last, §553.226(b)(1) and (2) only applies to “attendance outside of regular working hours”. Thus training that occurs during normal working hours would be compensable.
