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Last December's well-publicized U.S. Supreme Court decision not to hear an appeal of West v. Anne Arundel County (Maryland) left some local government officials reeling. Groups representing cities, counties and other local governments fear that the decision will have large financial impact, greatly increase the difficulty of managing fire departments. One local government representative has estimated that potential financial exposure of local governments could be close to $1 billion.
The Court left standing a decision by the 4th U.S. Circuit Court of Appeals that paramedics/EMS personnel who do not engage in fire suppression are not exempt from the Fair Labor Standards Act (FLSA). The FLSA requires most workers to be paid time-and-a-half for any hours worked above 40 in any given week. However, in recognition of the unusual shift schedules typically worked by firefighters, the law allows them to be on duty for up to 212 hours in a 28-day period (about 53 hours per week) before requiring overtime premium pay.
In Anne Arundel County (as in many other jurisdictions), paramedics were cross-trained and classified as firefighters, but were not assigned to engage in fire suppression. Therefore, the county argued that they should not be paid overtime until they had worked 53 hours. The paramedics filed suit in 1990, claiming overtime for every hour worked in excess of 40 per week. In early 1998, the 4th U.S. Circuit Court of Appeals sided with the paramedics. Its ruling was based on the fact that the paramedics spend more than 20% of their time on EMS duties rather than fighting fires. After the Supreme Court refused to hear the case, the county paid more than $3 million in back pay, interest and other expenses.
The Court's basis for its decision has local government officials across the country upset. This logic potentially could be applied to any firefighter who spends a substantial portion of his or her time on non-firefighting-related tasks. In this day of first-response EMS engine, truck and rescue companies, it is easy to imagine that the 40-hour rule could be applied to firefighters across the country.
Others, however, argue that this fear is unfounded. For example, the attorney representing the Anne Arundel County paramedics contends the impact will be small because the case will not apply in every jurisdiction, and it applies only to a small class of employees. Likewise, a regional union official says the decision would have a broad impact only if jurisdictions use these cross-trained firefighters as paramedics.
This long-running battle has generated considerable division within the fire service, but what has been its real impact? Has it led to changes in the way that the fire service operates? If not, should fire service leaders be considering significant changes?
Certainly, the impact in Anne Arundel County has been large. The West plaintiffs filed a second lawsuit, seeking damages for the overtime hours worked since December 1995, the cutoff point for the original award. So, after nine years, the legal action continues. Negotiations are underway to settle this second suit, and an additional payment of $1 million to $2 million is expected.
In March of this year, Anne Arundel County changed its schedule/pay practices for paramedics. Now, they are paid as salaried employees under a complex system in which they work an average of 49 hours per week. Payroll calculations are "a nightmare," according to Deputy Fire Chief C. Gary Rogers. He reports that the department struggled greatly to develop a work schedule for its paramedics. It considered dozens of possible schedules before arriving at its decision. The paramedics themselves are now working a far more complex schedule.
At the national level, legislation has been introduced in Congress that effectively overturns the West decision. H.R. 1693, sponsored by U.S. Rep. Robert Ehrlich (R-Maryland), who represents Anne Arundel County, adds a definition of fire service activities to the FLSA. Currently, there is no definition in the act, which has led to the conflicting interpretations in the courts.
According to International Association of Fire Chiefs (IAFC) lobbyist Gary Horewitz, the bill provides a definition of fire protection activities that reflects today's fire service, where currently there is none. As Horewitz notes, we are in the business of responding to emergencies of all types, not just fires.
Significantly, both the IAFC and the International Association of Fire Fighters (IAFC) support H.R. 1693. It is not common for these groups to agree on matters of labor law, but both recognize the potential long-term consequences that the West decision could have on the fire service.
Rogers noted that departments can take steps to prevent the problems that Anne Arundel County encountered. Career departments with cross-trained firefighters need to study their personnel staffing patterns to assess potential liability. It is important to determine how much time is spent on non-fire-related activities. This is far more complex than merely looking at the numbers of EMS calls. It is important to understand the nuances of the law as well as the U.S. Department of Labor's regulations. After doing the research and documenting the department's practices, Rogers recommends seeking a private ruling from the U.S. Department of Labor regarding compliance with the FLSA.
Fire service leaders from the mid-Atlantic region recently gathered to discuss the implications of the West decision. They wanted insights on how Anne Arundel County was planning to comply with the ruling. However, it was distressing to learn that some chiefs apparently have not educated themselves regarding the law, or have not adequately analyzed their departments' situations. Some at the meeting apparently did not want to recognize the potential liability exposure they face as a result of the West decision.
Failing to do so is dangerous. There is much to be learned from the Anne Arundel experience. With the Supreme Court's refusal to hear the West case, there is the potential that this ruling, which now applies in only one region, could be expanded to other areas by other courts. Every fire department that performs EMS (or other non-fire suppression) functions should look carefully at its staffing patterns to identify potential liability.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.