1. #1
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    Default New Overtime Law

    does any one know what the new overtime law means for Firefighters. Alot of us work 24/48 shifts but do not get paid overtime. This new law as I see it will correct that. I just wanted to here from those who might know more about it. I did not want to get my hopes up for nothing. Here is the link I found
    http://www.dol.gov/esa/regs/complian...irpay/main.htm

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    From the FLSA website:

    Police Officers, Fire Fighters and Other First Responders

    Police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees (“first responders”) who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and other similar work are not exempt under Section 13(a)(1) or the regulations and thus are protected by the minimum wage and overtime provisions of the FLSA.

    As far as I know, this part is NOT new. You SHOULD be getting OT for anything over 40 hrs. We do...

    Dave
    Last edited by Dave1983; 07-18-2004 at 10:32 AM.

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    Originally posted by Dave1983
    As far as I know, this part is NOT new. You SHOULD be getting OT for anything over 40 hrs. We do...
    As it was explained to me, firefighters aren't owed overtime (or comp. time) until they exceed 212 hours in a 28 day cycle. My department has a 14-day pay period, so we get comp. time for anything above 106 hours in that period.

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    We are on a 15 day cycle. We have what is called FSLA pay, which is listed seperatly on our pay stubs. The last department I worked for was on a 14 day cycle and had the same FSLA pay. Some of the departments in my area recive comp days (Kelly days) instead of money. I would rather have the cash

    Dave

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    As it was explained to me, firefighters aren't owed overtime (or comp. time) until they exceed 212 hours in a 28 day cycle.
    And that's "hours worked". In other words, If you work a 12 hour OT shift in that 28 day cycle, but are off for any reason, your employer only has to pay that extra 12 hours at the straight time rate. That time off can be vaction, sick leave, or anything else. The point is that you weren't there to work it, so the only OT that is owed is for the hours that exceed the 212 hours actually worked if you're on the 28 day cycle, the 14 day cycle, or like my city was for awhile, a 19 day cycle...talk about confusing. Generally everything is calculated in terms of a 53 hour average work week.

    The exemptions that the new rule addresses is the Professional, Administrative, and something like Executive exemptions. We had to deal with a previous administration trying to tweak our pay periods to minimize their overtime obligations. That's how we ended up with a 19 day pay period. We currently get Kelly Days in lieu of OT pay.

    Of course all bets are off if there is something different in a labor contract.
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    This is what I am questioning the NEW law on the fairplay web site is talking about changing all that confusion and making clear that firefighter get overtime for hours worked over 40 hours in a pay period. If you look at the site it is looking good for us

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    SEC. 13.(a) The provisions of sections 6 (except section
    6(d) in the case of paragraph (1) of this subsection)93
    and 7 shall not apply with respect to
    (1) any employee employed in a bona fide executive,
    administrative, or professional capacity (including
    any employee employed in the capacity of academic
    administrative personnel or teacher in elementary or
    secondary schools), or in the capacity of outside salesman
    (as such terms are defined and delimited from
    time to time by regulations of the Secretary, subject
    to the provisions of the Administrative Procedure Act,
    except that an employee of a retail or service establishment
    shall not be excluded from the definition of
    employee employed in a bona fide executive or administrative
    capacity because of the number of hours
    in his workweek which he devotes to activities not
    directly or closely related to the performance of executive
    or administrative activities, if less than 40 per
    centum of his hours worked in the workweek are
    devoted to such activities);
    This is the particular section of FLSA that the DOL sites in their rule interpretation. The "rule" doesn't say that they have to pay hours over 40 at overtime for "first responders". It says they have to pay you ovetime according to the applicable sections of the FLSA. Boiled down, it simply means that your employer can't say that you are exempt from being paid overtime because you are a supervisor, executive, or professional. It just reinfoces that you will receive overtime accoring to the pertinent sections of the FLSA. This is that particular section that spells out the hours:
    (k) No public agency shall be deemed to have violated
    subsection (a) with respect to the employment of any
    employee in fire protection activities or any employee
    in law enforcement activities (including security personnel
    in correctional institutions) if
    (1) in a work period of 28 consecutive days the
    employee receives for tours of duty which in the aggregate
    exceed the lesser of (A) 216 hours, or (B) the
    average number of hours (as determined by the Secretary
    pursuant to Section 6(c)(3) of the Fair Labor Standards
    Amendments of 1974)59 in tours of duty of employees
    engaged in such activities in work periods of
    28 consecutive days in calendar year 1975; or
    (2) in the case of such an employee to whom a
    work period of at least 7 but less than 28 days applies,
    in his work period the employee receives for tours of
    duty which in the aggregate exceed a number of hours
    which bears the same ratio to the number of consecutive
    days in his work period as 216 hours (or if lower,
    the number of hours referred to in clause (B) of paragraph
    (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.
    The footnote number 59 it sites in the above quote reads:
    59 The results of the Secretary's study were published in the Federal Register on September 8, 1983. The Secretary determined hours standards for law enforcement employees at 171 and for fire protection employees at 212 in a 28-day period
    (48 FR 40,518).
    The end result is that it just says that you are entitled to overtime according to the law (FLSA) as it applies to first responders. I don't see anything changing. Firefighters are still based on a 53 hour workweek for straight time, unless there is a labor contract saying otherwise.
    Steve Gallagher
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    The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.

    this says you are intitled ot unless you are exempt.

    Police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees (“first responders”) who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and other similar work are not exempt under Section 13(a)(1) or the regulations and thus are protected by the minimum wage and overtime provisions of the FLSA.

    I see this as saying that as of August 23 2004 firefighters are no longer exempt under this NEW LAW

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    The exemption has to do with the rights under the minimum wage and overtime segments of the FLSA.

    from your post: The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.

    this says you are intitled ot unless you are exempt.
    Yes, it does, but they are referring to the provisions as it applies to an"exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees." This means that your employer could conceivably classify you as an executive, administrative, or professional employee, and not owe you any overtime at all regardless of the hours you work. These employees are, as such, exempt.

    Firefighters are not exempt, and therefor are covered under the minimum wage and overtime requirements of the FLSA as it applies to firefighters, as I mentioned in an earlier post.

    The first part of your quote from the DOL is kind of misleading unless you read it carefully.
    The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek.
    Note it says "most employees". This language is used to prevent confusion for the majority of employees in the US, since the standard work week is a 40 hour week. The law specifically addresses the specific hours for firefighters in the body of the law.

    You can pick certain portions of the laws/standards/rules all you want to, but don't think for a minute that if what you say is the case were true, that employers across this country wouldn't be going nuts.
    This is a link from back in January for the DOL rule thread on overtime when it was first announced.
    Steve Gallagher
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    "I don't apologize for anything. When I make a mistake, I take the blame and go on from there." - Woody Hayes

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    does any one know what the new overtime law means for Firefighters.
    Zip.

    Alot of us work 24/48 shifts but do not get paid overtime. This new law as I see it will correct that.
    There is no new law. Just interpretation within the discretion of the Secretary of Labor. If you want a forty hour workweek it takes either local negotiations or, literally, an act of Congress.

    1. Department of Labor may interpret and may change the interpretation of the Fair Labor Standards Act from time to time.

    They however can not change it without Congress amending the FLSA. AFAIK, FLSA hasn't been amended. DOL has mainly been adjusting who should be considered salaried under the "professional" catergorizations.


    (7)(k)42 No public agency shall be deemed to have violated
    subsection (a) with respect to the employment of any
    employee in fire protection activities or any employee
    in law enforcement activities (including security personnel
    in correctional institutions) if —
    (1) in a work period of 28 consecutive days the
    employee receives for tours of duty which in the aggregate
    exceed the lesser of (A) 216 hours, or (B) the
    average number of hours (as determined by the Secretary
    pursuant to Section 6(c)(3) of the Fair Labor Standards
    Amendments of 1974)43* in tours of duty of employees
    engaged in such activities in work periods of
    28 consecutive days in calendar year 1975; or

    (2) in the case of such an employee to whom a
    work period of at least 7 but less than 28 days applies,
    in his work period the employee receives for tours of
    duty which in the aggregate exceed a number of hours
    which bears the same ratio to the number of consecutive
    days in his work period as 216 hours (or if lower,
    the number of hours referred to in clause (B) of paragraph
    (1)) bears to 28 days,

    Footnote 43:
    43 The results of the Secretary's study were published in the Federal Register on
    September 8, 1983. The Secretary determined hours standards for law enforcement
    employees at 171 and for fire protection employees at 212 in a 28-day period
    (48 FR 40,518).


    What's a firefighter?
    (y)17 “Employee in fire protection activities” means
    an employee, including a firefighter, paramedic,
    emergency medical technician, rescue worker, ambulance
    personnel, or hazardous materials worker,
    who —
    (1) is trained in fire suppression, has the legal
    authority and responsibility to engage in fire suppression, and is employed by a fire department
    of a municipality, county, fire district, or State; and
    (2) is engaged in the prevention, control, and
    extinguishment of fires or response to emergency
    situations where life, property, or the environment
    is at risk.


    For small departments...
    13(b)(b) The provisions of section 7 shall not apply with
    respect to —
    (20) any employee of a public agency who in any
    workweek is employed in fire protection activities or
    any employee of a public agency who in any workweek is
    employed in law enforcement activities (including security
    personnel in correctional institutions), if the
    public agency employs during the workweek less than 5
    employees in fire protection or law enforcement activities,
    as the case may be;


    So effectively a department with four paid guys can treat them as salaried employees and not pay o/t.

    In all it's glory:
    http://www.dol.gov/esa/regs/statutes...orStandAct.pdf

    Bottom line:
    * The Secretary can't change the normal hours for firefighters. His only discretion was in determining the average in 1975.
    * The letter-of-the-law for State & Municipal government with more than four employees is straight time until 212 hours in 28 days is reached.
    * The 1999 definition of "Firefighter" was added to clarify/allow/whatever that cross-trained FFs riding exclusively on an ambulance during their shifts still fell under the FF schedule of 212 in 28, instead of the 40 in 7 that would apply to an EMT-only.
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    A description of why first responders cannot generally be classified as exempt employees can be found here
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