Monthly Law Journal Article: Overtime Pay Entitlement for Public Safety Employees Under the Fair Labor Standards Act (FLSA), Part 2, 2016 (10) AELE Mo. L. J. 201.

    A police union failed to show that a township violated the Fair Labor Standards Act by failing to pay proper overtime, pay compensation for muster time, and provide compensation for time spent putting on and taking off uniforms. The township qualified for the Sec. 207(k) exemption from overtime by adopting a valid work period requiring that officers work either a seven day or a nine day period on a regularly recurring basis. The court found that officers were compensated for muster time as a component of their negotiated salaries, and that there was a custom or practice under the collective bargaining agreement of not compensating officers fo time spent donning and doffing clothes. The officers had the burden of showing that they performed work for which they were not properly compensated, and failed to do so. Rosano v. Township of Teaneck, #13-1263, 754 F.3d 177, (3rd Cir. 2014).
     City employees assigned to duties as fire department dispatchers or aeromedical technicians claimed that the employer violated the Fair Labor Standards Act by providing them compensation as "fire protection" employees under Sec. 207(k). A federal appeals court ruled that neither the dispatcher nor the aeromedical technicians were engaged in fire suppression, and accordingly, they should not have been denied standard overtime pay. Sec. 207(k) did not apply to them. Liquidated damages and a third year of withheld overtime pay, rather than the standard two, were proper when the city acted in willful violation of the law. Haro v. City of Los Angeles, #12-55062, 2014 U.S. App. Lexis 5094 (9th Cir.).
     Cross-commissioned fire investigators properly raised a claim for denied overtime. “For those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.” §553.213(b). Cremeens v. City of Montgomery, #09-15633, 2010 U.S. App. Lexis 7028 (11th Cir.).
     First Circuit holds that a public agency is not required notify police officers it is adopting a work period to qualify for a 7K exemption; 29 U.S.C. § 207(k). Calvao v. Town of Framingham, #09-1648, 2010 U.S. App. Lexis 5515, 15 WH Cases 2d (BNA) 1665 (1st Cir.).
    Although assigned as a full-time arson investigator, the plaintiff was not entitled to mandatory overtime. Fire investigators satisfy the statutory definition of employees in fire protection activities, set forth in 29 U.S. Code §203(y). Cremeens v. City of Montgomery, #2:08-cv-546, 2009 U.S. Dist. Lexis 93897 (M.D. Ala.).
     Labor Dept. concludes that jailers, although lacking arrest authority, qualify for the 207(k) exemption because §553.211(f) of the regulations does not require security personnel for correctional institutions to have the power of arrest to qualify for the §7(k) partial exemption. DOL Opinion Letter 2008-9NA, 2008 DOLWH Lexis 15.
     Because firefighters who are assigned as paramedics are "engaged in the ... response to emergency situations where life, property, or the environment is at risk," they are partially exempt from overtime requirements under 29 U.S. Code §203(y). Gonzalez v. City of Deerfield Beach, #07-11280, 2008 U.S. App. Lexis 24037 (11th Cir.).
     Labor Dept. issues an opinion that jailers who lack the power to make arrests, nevertheless meet the criteria of "security personnel" in correctional institutions as described in 29 C.F.R. §553.211(f), and therefore "qualify for the partial overtime exemption of section 7(k)." DoL Opinion Letter FLSA2008-9NA.
     Philadelphia's fire dept. paramedics who are assigned to ambulances do not have a responsibility for fire suppression activities and are not exempted from the overtime provisions of the FLSA. Lawrence v. City of Philadelphia, #06-4564, 2008 U.S. App. Lexis 11311, 13 WH Cases2d 1089 (3rd Cir.).
     Paramedics employed by a fire department and trained in fire suppression, have the "responsibility to engage in fire suppression" under 29 U.S. Code §203(y), and are partially exempt from the normal 40-hour overtime schedule established by the Fair Labor Standards Act, even if they do not regularly engage in fire suppression. Huff v. DeKalb County, #07-10862, 2008 U.S. App. Lexis 3224 (11th Cir.).
     Paramedics are employees engaged in fire suppression and are exempt from FLSA overtime requirements where they carry fire protective gear in their rescue vehicles and are regularly dispatched to fire scenes. Huff v. DeKalb Co., 2007 U.S. Dist. Lexis 6398, 12 WH Cases2d (BNA) 498 (N.D. Ga. 2007).
     Cross-trained firefighter/paramedics were entitled to overtime pay under the Fair Labor Standards Act. The paramedics were not responsible for fire suppression and did not qualify for the overtime exemption under 29 U.S. Code § 207(k). Weaver v. C&C of San Francisco, #C03-1589, 2006 U.S. Dist. Lexis 62650 (N.D. Cal. 2006), on remand from 158 Fed. Appx. 921, 2005 U.S. App. Lexis 28239 (9th Cir. 2005). {N/R}
     Dual-function firefighters who primarily serve as paramedics but also respond to fire calls qualify for the partial overtime exemption for firefighters under a Labor Dept. ruling. Wage & Hour Div. Opinion Letter, FLSA2006-21. {N/R}
     City's failure to adopt a work period under the FLSA results in large overtime liability. Double damages were due for all nonexempt Boston police officers. Harris v. Boston, #2002-10123-RBC, 2004 U.S. Dist. Lexis 5954, 9 WH Cases2d 941 (D. Mass. 2004). [2004 FP Aug]
     Federal appeals court holds that a city can elect not to use the FLSA's Section 207(k) exemption and to pay a firefighter assigned to administrative duties overtime after 40 hours a week. Potter [and Sharpe] v. Cureton, #00-5805, 319 F.3d 259, 2003 U.S. App. Lexis 2643, 8 WH Cases 2d (BNA) 801, 2003 FED App. 0050P (6th Cir. 2003). {N/R}
      Fire dept. paramedics and emergency medical technicians were not exempt from overtime compensation (until they exceed 53 hrs. per week) as "firefighters," as they did not qualify for the 207(k) exclusion. Vela v. City of Houston, #00-20770, 2001 U.S. App. Lexis 26779 (5th Cir. 2001). {N/R}
     Federal appeals court concludes that cross-trained firefighter-EMS personnel were still employees engaged in fire protection services for overtime purposes. Adams v. City of Norfolk, #00-2269, 2001 U.S. App. Lexis 26034 (4th Cir.). [2002 FP Feb]
     Federal court in MD rejects claim that fire investigators are "fire protection" employees under 29 C.F.R. 553.230(a), with a heightened overtime requirement. Lockwood v. Prince George's Co., 58 F.Supp.2d 651, 1999 U.S. Dist. Lexis 11574 (D.Md.), citing DOL-WHD Ltr. Rul. of Feb. 26, 1993. [2000 FP 9]
     Omaha paramedics fall within the FLSA exemption for firefighters and law enforcement personnel for overtime purposes. Though most of their time is spent on medical calls unrelated to fires, they were hired and trained as firefighters, and also respond to fire calls to provide medical backup. Lang v. City of Omaha, 186 F.3d 1035 (8th Cir. 1999). {N/R}
     A sheriff's dept. that never adopted a 28-day work period to calculate overtime due was not entitled to the benefits of the 7(k) exemption. Taylor v. Co. of Fluvanna, 70 F.Supp.2d 655, 1999 U.S. Dist. Lexis 17351, 5 WH Cases2d (BNA) 1255 (W.D.Va. 1999). {N/R}
     Detention officers who work for county sheriff at a correctional institute fall within the FLSA 7K exemption and DoL regulations. Bachmeier v. Hoffman, 211 F.3d 306, 2000 U.S. App. Lexis 8523, 2000 FED App. 0154P, 6 WH Cases2d (BNA) 56 (Wyo. 2000). {N/R}
     City paramedics are employees "engaged in fire protection activities" under Sec. 7(k), despite contentions that their only duty was medical support. They still met the requirements of 29 CFR 553.210(a) of being employed by organized fire department, having been certified by state to fight fires, having the legal authority and responsibility to fight fires, and performing activities required for firefighting. Lang v. City of Omaha, 186 F.3d 1035, 1999 U.S. App. Lexis 18785, 5 WH Cases2d (BNA) 865 (8th Cir.). {N/R}
     552 firefighters, formerly employed by privately incorporated V.F.D.s in Maryland, to receive $7.6 million in overtime pay and penalties. Conway v. Takoma Park V.F.D., 666 F.Supp. 786 (D.Md. 1987). [1996 FP 138-9]
     Supreme Court rejects further appeal of appellate holding that Chicago Fire Dept. paramedics are not "fire protection personnel" and were entitled to overtime. Alex v. City of Chicago, 29 F.2d 1235 (7th Cir. 1994); cert. den. 115 S.Ct. 665. [1995 FP 37-8]
     Rescue and ambulance service employee was exempt under fire service exception. Justice v. Metro Govt., 4 F.3d 1387 (6th Cir. 1993). {N/R}
     Paramedics were an integral part of the city's fire protection services. Alexander v. Kansas City, 1993 U.S.Dist. Lexis 14505, 1 WH Cases (BNA) 1117 (D.Kan. 1993). {N/R}
     The 80/20 test for firefighter classification applies to EMS personnel. Nalley v. Baltimore, 796 F.Supp. 194 (D.Md. 1992). {N/R}
     County EMT personnel could be classified as firefighters for overtime purposes, despite the infrequency they were dispatched to fires. O'Neal v. Barrow County 743 F.Supp. 859 (N.D. Ga. 1990).
     Federal Court rules that volunteer fire dept. is subject to FLSA overtime pay provisions and cannot use the 54-hour exemption allowed publicly owned fire departments. Conway v. Tacoma Park Vol. Fire Dept., Inc., 666 F.Supp. 786, 1987 U.S.Dist. Lexis 6911 (D. Md.).[88 (6) FP 7-8]; see $7.6 million settlement, reported in Sep. 1996 F&PPR issue.
     EMTS on 56-hour week entitled to overtime for over 40-hours worked under county law. Finlayson v. Broward County, 471 So.2d 67 (Fla.App. 1985).