June 1, 2007
Dear Human Resources Director:
You have two questions that arise from the following facts: The city’s firefighters work shifts of exactly 24 hours, and some firefighters work shifts of less than 24 hours as needed to fill temporary vacancies in firefighter slots that occur for various reasons. The shift commander determines which firefighters will work the 6 hour shifts:
1. Can the city deduct meal periods for shifts less than 24 hours?
The answer is no.
2. In the case of the firefighters who work shifts of less than 24 hours, should those firefighters be paid for meal periods?
The answer is yes.
Analysis of Question 1
The city has elected the 207(k) exemption. The federal rules that govern the application of the Fair Labor Standards Act (FLSA), say this about meal periods under the 207(k) exemption:
(a) If a public agency elected to pay overtime compensation to firefighters and law enforcement personnel in accordance with section (7)(a)(1) of the Act, the public agency may exclude meal time from hours worked if all the tests in § 785.19 of this title are met.
(c) With respect to firefighters employed under section (7)(k), who are confined to a duty station, the legislative history of the Act indicates Congressional intent to mandate a departure from the usual FLSA “hours of work” rules and adoption of overtime standards keyed to the unique concept of “tour of duty” under which firefighters are employed. Where the public agency elected to use the section (7)(k) exemption for firefighters, meal time cannot be excluded from the compensable hours of work where (1) the firefighter is on a tour of duty of less than 24 hours, and (2) where the firefighter is on a tour of exactly 24 hours, which is a departure from the general rules in § 785.22 of this title.
(d) In the case of police officers or firefighters who are on a tour of duty of more than 24 hours meal time may be excluded from compensable hours of work provided that the tests in §§ 785.19 and 785.22 of this title are met.
Because the firefighters for the City work a shift of exactly 24 hours, under subsection (c) of § 553.223, above, meal times are simply not deductible under the FLSA, and we need not resort to the tests for whether such time is compensable under §§ 785.19 and 785.22, which apply to firefighters who work shifts of more than 24 hours. .
Analysis of Question 2
For some reason that, looking back, I don’t understand, I tried to make this question too difficult. It is easily resolved by the answer to question 1: the city’s tours of duty for firefighters are only 24 hours; for that reason, firefighters working shifts of 24 hours or less must be compensated for meal periods, regardless of who assigns them to work such shifts.
If the city wishes to go to shifts of more than 24 hours, I will be glad to discuss the legal issues and implications involved in such a decision.
Sidney D. Hemsley
Senior Law Consultant