On Dec. 9, 1999, President Clinton signed into law H.R. 1693. With his signature, the fire service finally has the definition of a what a cross-trained/dual-role firefighter is. That new definition covers all the emergency medical service work a typical cross-trained/dual-role firefighter performs. Previously, it did not, according to several court interpretations of federal labor statutes.
The Fair Labor Standards Act (FLSA) has exempted fire protection employees from the traditional 40-hour work week. Traditionally, any emergency responder paid by a fire department was considered to be a fire protection employee and thus could work up to an average 53-hour work week before being paid overtime.
It all started in 1986, when Congress passed legislation extending the FLSA to states and municipal governments. Within the extension were exceptions with respect to how the FLSA applied to the public sector. One exception was designed to reflect the fact that firefighters and police officers work unusual hours and shifts. Under the "7(k) exemption" public safety agencies do not have to pay firefighters and police officers overtime until after they have worked 212 hours in a maximum 28-day cycle - which averages out to 53 hours per week. Normally, the FLSA requires employers to pay employees overtime after 40 hours of work in a week.
To be qualified for the 7(k) exemption, firefighters and police officers must spend at least 80% of their work time carrying out fire suppression or law enforcement duties. This criteria is typically known as the "80/20 rule."
According to the U.S. Department of Labor's administrative rules, fire department employees eligible for the 7(k) overtime exemption are those whose work involves "the prevention, control or extinguishment of fires" 80% of their work time. The rules included "housekeeping, equipment maintenance, lecturing, attending community fire drills, and inspecting homes and schools for fire hazards" as "incidental non-firefighting functions." Nowhere was it written that a firefighter performed emergency medical care or service.
The FLSA rules allowed firefighters to do non-firefighting functions up to 20% of their work time. But, as many know, most fire departments are mainly EMS agencies that sometimes go to a fire call. Typically, a fire department that also provides emergency medical service care will find that usually more than 60% of its call load is EMS related.
These definitions made things interesting in 1990. John West, Marianne Anderson and 126 other employees of Anne Arundel County, MD, EMS/Fire/Rescue sued, alleging the county violated the FLSA when calculating their overtime. In their suit, they contended the county unfairly used the 7(k) exemption to compute overtime for employees who were not "firefighters," as defined in the FLSA.
West and the co-plaintiffs were hired by Anne Arundel County EMS/Fire/Rescue and cross-trained as firefighters and EMTs or paramedics. They were assigned to the EMS Division and worked a 56-hour work week, but were not engaged in firefighting activities. The rationale as to why they were not involved in firefighting duties as described by the plaintiffs was that "EMTs were generally prohibited from active participation in fire suppression in order to keep clean for their medical duties."
In essence, even though they were trained as firefighters, they were not involved in fire suppression activities. Because they were not involved in firefighting as defined under the FLSA 80% of the time, the 7(k) exemption did not apply. Thus, their argument that they should be paid overtime for everything over 40 hours seemed logical.
U.S. District Court Judge Walter Black agreed and ruled in favor of West and the rest of the Anne Arundel employees, leveling a retroactive $4 million assessment against the county. Anne Arundel County appealed Black's decision to the 4th Circuit Court of Appeals. In late 1997, the Court of Appeals upheld the majority of Black's decision. Anne Arundel County then appealed to the 4th Circuit Court's decision to the U.S. Supreme Court. In December 1998, the Supreme Court decided not to hear the appeal.
Needless to say, many fire chiefs in the states - Maryland, North Carolina, South Carolina, Virginia and West Virginia - affected by the 4th Circuit Court became quite nervous. With these rulings, any firefighters performing more than 20% of their work hours on other-than-firefighting duties did not meet the 7(k) exemption under the FLSA.
Other lawsuits were filed by employees in the fire service who were not firefighters, but were subject to a 53-hour work week without overtime pay. Many fire departments whose EMS transport was handled by single-role medics found themselves facing lawsuits also. Obviously, these single-role fire medics contended that the 7(k) was unfairly being used against them, since they were not firefighters. Again, the courts ruled in favor of the plaintiffs and cities found themselves paying back large amounts of back pay.
In other places, fire managers were also faced with lawsuits based on the "80/20" rule. Some fire departments found themselves preparing schedules for 40-hour work weeks with the firefighters working typical eight-hour day/five-day-a-week schedules. In essence, the beds were coming out of the firehouse. This was obviously a dilemma for the fire service that would tremendously impact how traditional fire service and EMS was delivered in the country.
To resolve the issue, U.S. Representative Robert Ehrlich (R-MD) introduced and sponsored H.R.1693, the "Fire and Emergency Services Definition Act." On Nov. 4, 1999, the U.S. House of Representatives passed H.R. 1693 by a voice vote. The Senate passed the same bill on Nov. 19, 1999, and as mentioned in the opening paragraph, President Clinton signed the bill into law on Dec. 9, 1999.
H.R. 1693 amends the FLSA to define the position and duties of a firefighter. It defines an employee in fire protection activities who is trained as a firefighter, paramedic, EMT, rescue worker, ambulance personnel or hazardous material worker, who is:
- 1. 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.
- 2. Engaged in the prevention, control and extinguishment of fires or responds to emergency situations when life, property or the environment is at risk.
The bill does not make any mention of the percentage of time an employee must be engaged in any of the listed activities.
H.R. 1693 was strongly supported by both the International Association of Fire Chiefs (IAFC) and the International Association of Fire Fighters (IAFF). When the "Fire and Emergency Services Definition Act" finally became law, it truly demonstrated the strong backing and need for fire-based EMS systems.
Performing fire service EMS is now officially legal!
Gary Ludwig, MS, EMT-P, a Firehouse® contributing editor, is the chief paramedic for the St. Louis Fire Department and is the vice chairman of the EMS Executive Board for the International Association of Fire Chiefs. He has lectured nationally and internationally on fire-based EMS topics and operates The Ludwig Group, a consulting firm specializing in EMS and fire issues. He can be reached at [email protected].
