The Fair Labor Standards Act (FLSA) requires that overtime compensation be paid at one and one-half time the employee’s regular rate of pay. Since 1986, when the US Supreme Court ruled that overtime pay be paid to government workers, municipalities have been trying to find alternatives to paying out overtime wages or to avoid paying overtime at all.
If an employer violates the provisions of the FLSA they could be responsible for:
- Paying back wages
- Paying damages which is double the amount of any back pay award;
- Paying of the plaintiff’s attorney’s fees and costs.
On Call Time
It is not uncommon for public safety workers to be on-call during off duty hours. Whether they are entitled to receive overtime pay for their on call time depends on the restrictions the employee is under during the on call period. If the on call period is to the employer’s benefit, then overtime should be paid.
The following is taken into consideration to determine whether an on-call employee is entitled to overtime pay:
- 1The usual amount of emergency calls the employee receives while on-call.
- The amount of time the employee has before returning to their regular work after an emergency call.
- Will the worker be penalized for being late to an emergency or missing the emergency.
- How much freedom does the employee have to do other activities while on call.
For many fire and first responder employees, they are required to stay at work during meals. Under the Fair Labor Standards Act an employer can only deduct time during meals if:
- The employee’s shift exceeds 24 hours;
- The meal time is not to the employer’s benefit; the employee is not working during mealtime and,
- The employee and the employer has reached an agreement that the meal time would be deducted.
Each one of these circumstances must be met in order for the employer to deduct meal time.
Firefighters and Police Officers
Under the FLSA, firefighters and rescue workers who work more than 53 hours a week are entitled to overtime pay. Some firefighters and rescue personnel may be exempt from overtime pay in certain situations:
- The firefighter or rescue workers are paid salary
- The firefighter or rescue workers’ job duties are supervisory.
Certain standards are applied by the courts to determine whether an employee is exempt from receiving overtime pay based on the above.
Emergency Medical Service Workers
Any public employee not in fire protection, must be paid overtime for any hours worked over 40 during the work week. In order to avoid paying overtime to Emergency Medical Service workers, employers will often classify them as firefighters. Classifying them as firefighters would delay the payment of overtime to after 53 hours per week. In order to classify an EMS as a firefighter, the EMS must meet the following:
- The EMS worker must have completed the training for fire, accident and crime victims;
- The EMS worker is integrated as part of the municipality’s fire protection department
- The EMS worker must respond to car accidents, fires and crime scenes;
- The EMS worker must spend more than 80% of their time involved in fire protection or rescue.
If an EMS worker does not meet the above criteria, they must be paid overtime for any time worked over 40 hours.
An arson investigator employed by a public fire department is entitled to over time pay for any hours worked over 40 or 43 (dependent on whether the investigation involves law enforcement duties such as executing a search warrant or making an arrest.)
A dispatcher employer by a municipality is entitled to overtime pay for any time worked over 40 hours in a work week. However, if the dispatcher’s job responsibilities include law enforcement or fire protection, then the dispatcher would be paid overtime after 53 hours worked in a week.
If you have any questions concerning overtime pay, contact our Chicago office at 312-661-0450 and speak with an experience FLSA attorney. You can also complete the free case evaluation form on our web site.