|Legal Opinion: |
Text of Document: May 20, 1997
You have the following questions related to overtime compensation:
1. When a full-time city employee is also a volunteer firefighter, is he entitled to overtime compensation when his combined hours as a city employee and as a volunteer firefighter exceed 40 hours?
2. Is a full-time firefighter who works in the water department on Saturdays entitled to overtime for hours worked in excess of the hours he is permitted to work during his work period?
3. Where a city employee does dissimilar work, how is his overtime compensation calculated?
Question 1: For the purposes of answering this question, I will assume that the full-time city employee is not a firefighter. If he is a firefighter, he simply cannot perform service for the city as a volunteer firefighter. [29 U.S.C., section 203(e)(4)(a); Wage and Hour Opinion Letters July 16, 1991, Nov. 7, 1994.]
The full-time city employee may work as a volunteer firemen, and is not entitled to overtime compensation for such work. In fact, technically, the city could even deduct from his pay the time he spends on fire calls during his work hours; however, I know of few, if any, cities that do so.
Question 2: The answer depends upon whether the firefighter’s work is "sporadic." The firefighter can do dissimilar work for the city without losing his 207(k) exemption, provided his work is "sporadic," and provided the firefighter is under no mandate or pressure to perform such work. [20 C.F.R. 553.212B; 553.30.] "Sporadic" means infrequent, irregular or occurring in scattered instances. It is critical that the work be sporadic; if it is not, and the work represents more than 20 percent of the firefighter’s total hours during the work period, he loses his 207(k) exemption, and the city is required to pay him overtime for all hours worked beyond 40. As I understand the facts, the firefighter in question has worked about three straight Saturdays in the water department. For that reason, his work there is probably not sporadic.
Question 3: For the purposes of answering this question, I will assume that the employee performing dissimilar work refers to the firefighter in question 2. The city should determine the firefighter’s pay per hour over the work period, then pay him one-and-one-half times his hourly rate of pay for all hours worked over the maximum hours he is permitted to work during his work period. For example, let us assume his work period is 28 days, that he works 212 hours during that period (53 hours a week), and that during a certain work period he worked 222 hours, 10 hours in excess of 212. The city would determine from his salary his hourly rate of pay for 212 hours, then it would multiply that hourly rate of pay by 1-1/2 times, then by 10 (the number of extra hours he worked during the work period).
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant