The law states that overtime compensation must be at a rate of one and one-half times the “Regular-Rate” for each hour worked over 40 in an individual work-week.  Ever since the U.S. Supreme Court ruled that FLSA overtime laws apply to workers in state and local government in 1986, government employers have consistently looked for ways to avoid paying overtime to law enforcement workers, emergency medical personnel, rescue service employees, fire-fighters, and other government workers.  Such practices are illegal under the FLSA.  Any employer who violates federal overtime law may be sued in court and subject to the following penalties:

• payment of back pay wages, which is the difference between the amount the employee should have been paid had the employer complied with the FLSA and the amount the employee actually received.
• payment of “liquidated damages,” which is the doubling of backpay award.
• reimbursement of attorney’s fees and litigation costs

In each of the following circumstances employers in public agencies are entitled to overtime pay.  The following instances show examples of employer attempts to avoid compensating their employees for working overtime.

On-Call time: Many public safety workers are obligated to be “on-call” during work hours in which they are away from the employer’s work-site.  Whether or not such “on call” time is compensable largely depends on the extent to which the employer places restrictions on the employee during the “on call” period.  In general, the employee must be paid for “on call” time if the work-time is regarded as being to the benefit of the employer.   Listed below are a number of factors that are used  to determine whether employers are obligated to pay their workers for “on-call” hours.

1. how many emergency calls an employee customarily responds to during an average “on call” period.
2. how soon after an emergency call the employee has before returning to work (average response time)
3. whether a worker may be penalized for missing or being late to an emergency call-back.
4. how much freedom the employee has to engage in other activities during “on-call” work hours.

Meal Time: Fire and rescue employees are also usually required to remain at their work-sites during their meal periods.  Like with sleep time, employers often attempt to deduct meal periods from a worker’s paid work-time.  Under the FLSA, an employer may only deduct work-time during meals only if:

1. the shift exceeds 24 hours; 
2. the meal time is generally to the employee’s and not the employer’s benefit -that is - the employee is not required to perform work duties during this time; and
3. an express or implied agreement has been reached between the employer and the employee that on-duty meal time may be deducted.

Unless each of the above conditions are met, an employer must compensate its workers for all on-duty meal periods.

Fire-Officers and Overtime Pay: As a general rule, the FLSA requires fire and rescue personnel that work more than 53 hours per week to be paid overtime at the rate of one and one-half times the worker’s “Regular Rate.”  However, certain types of employees may be exempt  from receiving FLSA overtime compensation.  A public employer may deny fire officers overtime wages if each of the following conditions are met:

• the officers are paid by salary; and
• the officer’s primary job duties involve those of a “supervisor”

Factual and legal standards are applied by the courts to determine whether, based on the above conditions, employers may exclude officers from receiving overtime.

Emergency Medical Service (EMS) Personnel- Public employees whose job duties do not involve fire protection must be paid overtime for all hours worked in excess of 40 during a week.  Because of the above exception, public employers will often attempt to classify EMS workers as fire fighters to avoid paying overtime wages unless the employee works more than 53 hours in a week.  Under federal law, for a public employer in state or local government level to treat EMS/ambulance employees as fire officers, the employer must demonstrate that the employee’s job duties meet each of the following tests: 

• the EMS employee must has gone through proper “rescue” training for fire, accident, and crime victims;
• the EMS employee is an Aintegral part@ of the public agency’s fire protection activities;
• the EMS employee’s regular job duties involve being sent to the scenes of car accidents, crimes and fires;
• more than 80% of the employee’s work-time involves fire protection or rescue activities.

EMS employees who do not meet each of the above criteria  must be paid overtime based on the normal 40 hour work-week.

Arson Investigators- Arson investigators in a public fire department may not be treated as fire-fighters for the purpose of withholding overtime pay until the employee has worked over 53 hours in a week.  Employees whose  job responsibilities primarily involve investigating a possible arson after a fire must be paid overtime for all work performed in excess of 40 or 43 hours in an week (depending on whether the job duties involve law enforcement duties, like arrests). 

Public Dispatchers- Public employees whose job involves the dispatching of emergency workers and equipment to accident, fire and crime scenes must also be paid based on the 40 hour work-week.  Unless the employee’s regular job functions includes law enforcement or fire protection, an employer may not pay him/her based on the higher standards (53 hours) that may apply to police or fire personnel.

Questions? Contact an overtime lawyer at Werman Law Office, P.C.