The Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay minimum wage and overtime compensation (under specific circumstances) to their employees. Since the FLSA became applicable to state and local government employers in 1986 following a ruling by the U.S. Supreme Court, many public employers have attempted various ways to avoid paying overtime compensation (i.e., time and one-half pay) to fire fighters, rescue service, and emergency medical service employees. If an employer's overtime pay practices are in violation of the FLSA, employees may file a lawsuit against the employer and obtain back pay (which may be doubled to include what is known as "liquidated damages"), reimbursement for attorneys' fees, and litigation expenses.

Federal Fire Fighters and Rescue Employees and the FLSA

Many different rules apply to federal public sector employees. Please check the Federal Employees page for special rules that apply to them.

In some jurisdictions, public safety employees are required to be on-call during times that they are not on duty at their normal work site. These on-call hours may be considered compensable hours of work (and payable at the overtime rate) if the restrictions placed on the employee during the on-call time prevent the employee from utilizing the time effectively for his/her own personal pursuits, and thus the time is regarded as being predominantly for the employer's benefit. Factors that are considered in determining whether on-call time must be treated as compensable work hours include:

Many fire and rescue employees work shifts that span an entire day, and because of the time period involved, sleep at their work sites during each shift. Unless certain specific conditions are met, a public employer must treat this sleep time as compensable hours (even if no emergency calls come in). Under applicable law, an employer can deduct up to 8 hours of sleep time per shift from the number of compensable hours of work that trigger overtime pay only if the following two conditions are both met:

• the shift is scheduled to last more than 24 hours (e.g., 24 1/4 hours); and
• there is an express or implied agreement from the employee that the employer may deduct such time.

Not surprisingly, many of the cases in this area focus on the issue of whether an express or implied agreement ever came into existence. In addition, DOL regulations say that, if the sleep period is interrupted to such an extent that the employee cannot get a reasonable night's sleep (which, for enforcement purposes means at least 5 hours), the entire time must be counted as hours of work.

Fire and rescue employees who are required to work shifts lasting an entire day also usually eat meals at their work site. As with sleep time, employers may try to exclude meal periods from an employee's compensable work time. However, an employer may exclude meal periods (and avoid paying overtime) only if the following conditions are met:

• the shift is scheduled to last more than 24 hours (e.g., 24 1/4 hours); and
• the time that is designated for eating is a "bona fide" meal period, meaning that the employee is completely relieved of duties during this time such that he uses the time predominantly for his benefit rather than for the employer's benefit; and
• there is an express or implied agreement from the employee that the employer may deduct such time.

Compensatory Time Off

Compensatory time as compensation for overtime work is not permitted in the private sector. However, under the FLSA, state and local governments are permitted to agree with their employees that overtime work would be rewarded with compensatory time off ("comp time") in lieu of monetary payment.

The FLSA permits public employers to afford comp time to employees engaged in fire protection activities (including EMTs and Paramedics) in lieu of cash overtime payments provided that the employees agree in advance to this compensation policy. In states that permit collective bargaining between employers and employee representatives, an agreement covering a group of employees may be reached through negotiations with the employees' representative. In non-collective bargaining jurisdictions, an employer may institute comp time in lieu of cash overtime policy through agreements with individual employees.

Accrual of Comp Time

Comp time must accrue at the rate of not less than 1.5 hours for each hour of overtime work. Under current law, fire protection employees can work 320 overtime hours and thereby accrue a maximum of 480 hours of comp time (320 hours times 1.5) before overtime hours worked above this maximum must be compensated in cash. In states without collective bargaining, the Supreme Court has held that there is nothing in the FLSA prohibiting an employer from forcing employees to use accrued comp time. Of course, in most collective bargaining states, this would be a mandatory subject of bargaining

Conditions on Using or Cashing Out Comp Time

The FLSA requires that an employee who has accrued comp time be allowed to use that time off within a "reasonable period" after making a request if the use does not "unduly disrupt" the operations of the agency.

Reasonable Period

The meaning of the phrase "reasonable period" has been interpreted in two different ways by federal courts.

In one set of decisions, federal courts have held that employers must permit employees to use compensatory time within a "reasonable period" of time after the request is made, and not at a specific time requested by the employee. Courts have found that the use of a log book where employees must sign up before using accrued comp time does not violate the FLSA even though this practice resulted in the employee being denied comp time on occasion.

In contrast, another court has held that "reasonable period" means that a comp time request must be requested by an employee within a reasonable period of time of the date that the employee wishes to use it. This court found that the regulation regarding "reasonable period" defines when an employee must make a request to use comp time, rather than to define the period in which an employer must permit an employee to use comp time. The position is supported by the Department of Labor's pronouncements on the subject.

Undue Disruptions

The regulations provide that determining whether granting the request would "unduly disrupt" the agency's operations is based on such factors as:

• the normal schedule of work,
• anticipated peak workloads based on past experience,
• emergency requirements for staff and services, and
• the availability of qualified substitute staff.

Fire Fighter and Rescue Employees Entitled to Overtime:

The FLSA generally requires that public employers pay time and one-half overtime to employees who work more than 40 hours in a work week. For fire fighter and rescue employees that are employed in "fire protection activities," however, there is a higher threshold before overtime must be paid. Fire fighter and rescue employees who meet the definition of being employed in fire protection activities are typically entitled to receive overtime pay when they work more than an average of 53 hours a week, or up to 212 hours in a 28 day cycle, if an employer has adopted and established a work period of between 7 and 28 days.

Under the FLSA, a public employee is deemed to be engaged in fire protection activities if the following criteria have been met:

• the person is employed by a fire department, trained in fire suppression, and has the legal authority and responsibility to engage in fire suppression
  

and

• the person is engaged in the prevention, control, or extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Courts have found that this definition covers both fire fighters and emergency medical personnel if the above criteria are met.

Fire Fighter and Rescue Employees Not Entitled to Overtime

The FLSA also exempts certain classes of fire fighters and rescue employees from this overtime pay requirement. Even if an employee is engaged in "fire protection activities" described above, a public employer can determine that it will not pay the employees overtime if such employees:

• Are paid on a salaried (rather than hourly) basis;
  

• Perform primarily supervisory duties during their work time

The courts have established factual and legal standards that are applied to determine whether these two conditions are met (and therefore, whether employees are improperly being denied overtime pay).

Additionally, there is an FLSA exemption for fire fighters and rescue employees in a small department. Under the small department exemption, a public employer is exempt from the requirements of the FLSA for any employee in fire protection activities if the public agency employs during the workweek less than 5 employees in fire protection activities.

In counting the number of employees engaged in fire protection activities, full‑ and part‑time employees are treated the same, as are employees who are on duty and employees who are on leave. Volunteers and elected officials are not counted as employees. In addition, all employees of the department are counted, not just those who are engaged in fire protection activities. For example, a paid chief would count as an employee for purposes of this exemption even though it is likely that he or she would be considered exempt from the FLSA because he or she is salaried and performing primarily supervisory duties as described above.

Emergency Medical Employees That Are Not Cross-Trained in Fire Suppression

Public employees who are not engaged in fire protection activities are, in general, entitled to overtime pay after working 40 hours in a workweek. However, in order to avoid overtime costs, some public employers attempt to treat EMS employees as fire fighters, thereby paying them overtime only when they work more than 53 hours a week. Under applicable federal law, a state or local government employer must demonstrate that EMS/ambulance employees meet all of the following criteria in order to treat them as being eligible for overtime pay only after they have reached 53 work hours in a week:

• the person is employed by a fire department, trained in fire suppression, and has the legal authority and responsibility to engage in fire suppression
  
  
  and

• the person is engaged in the prevention, control, or extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Single-role EMS employees whose jobs do not meet all of the above tests (including being cross-trained in fire suppression) are required to be paid overtime compensation after they work only 40 hours each week.

Arson Investigators

Fire (arson) investigators in a public fire department whose job is to investigate possible arson following a fire may not be grouped with fire fighters for overtime pay purposes, and therefore, pubic employers cannot decide that they will pay overtime to these employees only after they have worked 53 hours in a week. Arson investigators are entitled to overtime compensation after they have worked either 40 or 43 hours in a week, depending on whether their job responsibilities include certain law enforcement functions (e.g., whether or not they have the authority to make arrests).

Dispatchers

Employees who perform an emergency communications role dispatching public safety personnel and equipment to fire, crime and accident scenes and who are not assigned (or rotated) into law enforcement or fire protection (i.e., fire suppression or prevention) functions must be paid overtime according to the 40-hour workweek standard rather than the higher thresholds permitted for police and fire fighters.

Many public employees are entitled to be compensated for job-related duties that they perform either before or after their regular work shifts. The general rule is that an employee must be compensated for activities performed either before or after the regular work shift if those activities are an integral and indispensable part of the principal work activities for which the person is employed. Whether pre-shift or post-shift activities are considered an integral and indispensable part of the principal work activities is dependent upon the specific facts of each case. In deciding a particular case, courts will analyze whether the activities in question are necessary to the job and performed, at least in part, for the benefit of the employer (compensable time) or, conversely, are performed for the employee's convenience (non-compensable time). Therefore, in many cases, public safety employees, including fire fighters and rescue employees, are entitled to be compensated for such activities undertaken outside their regular shift, such as checking and restocking of fire and rescue vehicles, inspecting and repairing equipment, attending a lineup or briefing, or writing reports.

• Freedom of Speech
• Freedom of Association
• Remedies

Among our most cherished rights are the right to speak freely on matters of public concern, and the right to associate with whom we choose. These rights to freedom of speech and freedom of association are protected by the First Amendment to the United States Constitution. Although there is no "right" or "entitlement" to government employment, public employers can not fire, refuse to hire, or otherwise discriminate against an individual based on his or her exercise of First Amendment rights.

The First Amendment provides an important check on the ability of public employers to discipline or otherwise discriminate against a public employee:

• Freedom of Speech
• Freedom of Association
• Remedies

Under the First Amendment, individuals have the right to speak out on matters of public concern without having government employers retaliate against them for the exercise of free speech. In the employment context, to be protected, there are two basic requirements:

1. An employee's speech or comments must involve a matter of public concern;

and

2. The employee's interest in speaking on the matter of public concern must not be outweighed by the employer's interest "in promoting the efficiency of public services."

In addition, the employee must prove that the protected speech was a substantial or motivating factor in the adverse employment decision. Another way to say this is that the employee's protected speech must have been a reason that moved the public employer towards its decision, but it need not be the only reason. Further, the employer can escape liability if it can prove that it would have made the same decision even in the absence of the employee's protected speech activities.

In 2006, the United States Supreme Court placed an additional limitation, beyond the two just discussed, on what constitutes protected speech under the First Amendment. In that case, the Supreme Court held that when public employees make statements "pursuant to their official duties," their speech is not protected under the First Amendment, so they can be disciplined for their statements. This means that a public employee's statements are not necessarily protected when they are made in the process of completing a work duty. For example, a public employee who is responsible for making comments to the press and the public as spokesperson for a fire department (such as a Public Information Officer) is not necessarily protected under the First Amendment from discipline for statements made while performing those duties.

MATTERS OF PUBLIC CONCERN

Matters of public concern are issues that concern the public at large versus issues that only affect an individual employee. Speech on matters of "public concern" is speech that can be "fairly considered as relating to any matter of political, social or other concern to the community." Courts have routinely found that issues regarding public safety (including staffing, response time, and equipment for emergency services), discrimination, public budgets, taxation, and fraud are matters of public concern. Conversely, courts have found that issues are not matters of public concern if they only concern such things as whether an individual employee was properly disciplined for non-speech reasons, personality disputes among employees, or other complaints regarding working conditions that only affect the complaining employee.

WEIGHING THE HARM

Once it is determined that the employee's speech is on a matter of "public concern," the employee's interest, as a citizen, in making the speech must be weighed against the harm, if any, to the employer's efficient and effective operations. Where the employee's interest is strong, such as political speech or speech raising a serious issue of public safety, it will be very difficult for the employer to "win" this balancing test. As one court said with respect to speech concerning cuts to emergency services, "it is hard to imagine any combination of government interests sufficient to outweigh [the employee's] interest in informing the public about policies he believed were dangerous to the City's citizens."

In this regard, the courts often look to whether the an injury or disruption of the workplace affecting the public employer's ability to provide its services occurred, or is likely to occur. Moreover, employers may not single out a particular employee or particular type of speech for punishment. If an employee or particular type of speech is being singled out, the courts usually strike down the speech based restrictions as unconstitutional.

FREEDOM OF SPEECH CASE EXAMPLES

• In Texas, a fire fighter was discharged for speaking to the media following a routine fire in which a fire fighter died of a heart attack, and another fell from a ladder, sustaining serious injury. The fire fighter, who was president of the local fire fighters union, informed the press that recent budget cuts and staffing reductions may have played a part in the incidents. The Court found the fire fighters' statements to the media constituted speech on a matter of public concern, protected under the First Amendment. The fire fighter was reinstated with back pay, benefits, and payment of his attorneys' fees and costs.

• In Missouri, a fire fighter was discharged after publicly announcing the local union's endorsement of a local fire district board candidate at a political meeting. The union-endorsed candidate was running against a long time incumbent, who had the support of the fire chief and his fellow fire board members. Although the Fire Department claimed the fire fighter was fired due to abuse of sick leave, the jury concluded that this was a false reason given by the Fire Department to disguise its true motive of punishing the employee for engaging in protected political speech. The jury awarded the fire fighter substantial damages, including back pay, compensatory damages for pain and suffering, and attorneys' fees and costs. In addition, the fire district was ordered by the court to reinstate the fire fighter.

• In a case involving a state highway patrol, a state trooper was disciplined for allegedly withholding information regarding missing property. At trial, the court found that the true reason for the trooper's discipline was that the trooper had endorsed a candidate for patrol superintendent who was opposed by the trooper's superior. In balancing the employee's interest in free speech against the employer's interest in the efficiency of the service, the court ruled in favor of the trooper because the highway patrol could not show that an injury or disruption of the workplace was or would be the result of such protected speech.

• In a Tennessee case, a fire department prohibited any literature at the workplace that mentioned "unions" or "labor organizations." The Department did allow fire fighters to read other magazines and books to the workplace, including adult magazines such as Playboy. The prohibition solely related to union material. The court struck down this rule finding that it was an invalid content based restriction on speech that was unnecessary to promote the efficiency of the department's service to citizens. This case also demonstrates that a public employer may not discriminate against certain types of speech based on the employer's opposition to, or disagreement with, the content of the speech.

• In a South Carolina case, several fire fighters were not hired after their department was merged into another City's fire department. The fire fighters had been active in the union and had publicly commented on City related issues in the past. The fire fighters won a jury trial in which the court found that the City had violated the fire fighters' First Amendment rights.

Public sector employers (state, local and federal government employees) may not take adverse actions against employees based on the groups with which the employees associate, such as labor associations, political organizations, and civic groups. This right is not absolute, however. For example, a police detective may not be able to associate with known organized crime figures, or associate with a motorcycle gang that the City is investigating. In evaluating 'free association' claims, courts must balance the employee's First Amendment interest in belonging or associating with a group against the employer's interest "in promoting the efficiency of public services." It is rare for an employer to be able to justify restrictions based on an employee's right of association.

In addition, the employee must prove that the protected associational activity or membership was a substantial or motivating factor in the adverse employment decision. Another way to say this is that the employee's protected association must have been a reason that moved the public employer towards its decision, but need not be the only reason. Further, the employer can escape liability if it can prove that it would have made the same decision even in the absence of the employee's protected activities.

In attempting to justify a restriction on speech or freedom of association, the employer must offer more than mere speculation or conjecture; rather the courts will look to whether an injury or disruption of the workplace affecting the public employer's ability to provide its services occurred, or is likely to occur

Set forth below are a few examples of First Amendment freedom of association cases that employees have successfully pursued:

• In Colorado, a fire fighter was elected president of a newly formed IAFF local union. As part of those duties, the local president conducted meetings, issued a press release on the reasons for forming the union, and the benefits to the fire department and community, and spoke with the Fire Chief to inform the Fire Chief that the union had been formed, and the benefits that could result from it. Shortly thereafter, the Fire Chief terminated the local union president, allegedly for writing on a flyer announcing the closure of certain racquet ball courts.The federal court jury concluded, however, that the local union president's associational activities on behalf of the newly formed union were a substantial motivating factor in the decision to terminate the fire fighter. The Jury awarded back pay and significant compensatory damages to the fire fighter, and the Court ordered the fire fighter's reinstatement.

• In a fire department there were two IAFF local unions - one for the officers and one for the rank and file. The City ordered the employees in the officers' local to withdraw their affiliation with the International union, claiming that it created a conflict of interest for the officers to affiliate with the same union in which their subordinates were members. A federal court struck down this restriction finding that there was no rational basis for the City's fears.

• In a case involving the District of Columbia's attempt to restrict the association rights of police officers who were trying to organize a union, the court held that a District of Columbia Code provision, which forbade membership by D.C. police officers in a union that was affiliated with any union that asserted the right to strike, was unconstitutional. The City argued that the restrictions against affiliations were necessary "to insure a smoothly running, fair and impartial police force." The City suggested that a police officer's union sympathies would interfere with his ability to respond to labor disputes. The Court rejected the City's arguments and struck down the Ordinance as an impermissible restriction of freedom of association.

• In a case involving fire fighters' attempts to become affiliated with an international union, the court declared a North Carolina statute that prohibited fire fighters from becoming members of a labor organization that is affiliated with a national or international labor organization, to be unconstitutionally overbroad. The court held that:

It matters not . . . whether the firemen of the City of Charlotte meet under the auspices of the intervenor, a national labor union, but whether their proposed concerted action, if any, endangers valid state interests. We think there is no valid state interest in denying firemen the right to organize a labor union -- whether local or national in scope.

• In a similar case involving police officers, a court struck down a regulation that prohibited police officers from joining or maintaining membership in any labor organization whose membership was not exclusively limited to full-time law enforcement officers. The City attempted to justify the regulation on the grounds that a police officer must appear to be impartial and neutral in the handling of labor disputes. The Court concluded that the City's asserted interest did not outweigh the First Amendment rights of the police officers to join a labor organization of their own choosing.

Employees who successfully pursue First Amendment cases are eligible to recover the following types of remedies:

• Declaratory relief such as a court's ruling that a statute or ordinance is unconstitutional;
• Injunctive relief such as an order that the employee be returned to work;
• Actual damages such as lost wages and benefits;
• Compensatory damages, such as pain and suffering caused by the employer's misconduct;
• In extreme cases, punitive damages to punish the public officials who violated the employee's rights; and
• Attorneys' fees and costs incurred in pursuing the case.