There are special and complicated overtime pay rules for first responders (e.g., EMS workers such as paramedics and EMTs, firefighters and police officers). As an initial matter, there is a strong presumption that anyone working as a first responder is not exempt from the right to overtime pay. Often times, employers will improperly classify these employees as salaried-exempt[2] to deny them overtime pay.
It is also critical to consider that the 40-hour workweek does not apply to many fire and police employees. Instead, under FLSA Section 7(k), work periods of up to 28 days may be set by the employer, in which the 1.5x overtime pay requirement only applies to hours worked over 171 hours in 28 days (for police) and 212 hours (for firefighters). However, employers often times inappropriately apply Section 7(k) to those who are ineligible – i.e., those who are not trained in or do not engage in fire suppression, or those who work for a non-profit “volunteer” (as opposed to governmental) fire department. Other times, employers do not properly implement these 28-day cycles and improperly compute overtime pay. Still further, some employers improperly classify their first responders as completely exempt, paying them a salary and no overtime, even when they work beyond the applicable overtime thresholds for the 28-day cycle.
Fire companies may violate the law by denying the FLSA’s minimum wage and overtime protections to employees whom they label as “volunteers” or by failing to count all hours spent at the fire station (including on-call time spent sleeping at the station) as compensable work time.