• Dean Royer

Firefighter pay

Must firefighters receive pay for taking their gear to temporary assignments?

On September 4, 2015, the Ninth Circuit Court of Appeals considered two questions concerning firefighters’ pay. In Balestrieri v. Menlo Park Fire Prot. Dist. (9th Cir. Cal. Sept. 4, 2015) 2015 U.S. App. LEXIS 15785, one issue was whether firefighters must be paid to take their gear to temporary duty stations. The appellate court also determined whether cash payments in lieu of unused leave time should be counted towards the firefighters’ pay rate.

With respect to the first question, a firefighter could report to another (“visiting”) station for a “temporary assignment” and earn wages at the overtime rate of time and a half. One way this occurred was through a voluntary acceptance during or between shifts. In this situation, the firefighters’ pay would not start until they reported to the visiting station, not including the time to collect their special work gear at their home station. A second type of temporary assignment resulted from arriving early for a shift and then told to report to a visiting station. For this situation as well, pay did not start until the firefighters arrived at the visiting station with their gear.

The firefighters sued their employer claiming they did not receive overtime pay for the time it took to get their gear and report to the visiting stations, and to take their gear back to their home stations after the temporary assignments. The trial court decided that there were no overtime pay violations.

On appeal, the Ninth Circuit reviewed the federal overtime law (Fair Labor Standards Act), which does not consider commuting time and activities that are “preliminary” or “postliminary” to the “principal activities” that the employee is employed to perform. The appellate court reviewed a Supreme Court decision concerning time that Amazon warehouse employees spent going through a security check at the end of their shift. The high court determined that even though the security check was required and for the benefit of the employer (purportedly to prevent theft), the time spent need not be paid. That is because the time was not integral and indispensable to the employees’ duties as warehouse workers.

Applying that rule to the firefighters’ case, the Ninth Circuit noted that the firefighters are allowed to bring their gear home. Consequently, time spent gathering gear from the home station is not indispensable to the firefighters’ principal activities: prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

As for the second question, the firefighters contended that pay they received for unused sick leave was a type of bonus that should be considered as part of their “regular rate” of pay, from which the overtime rate is calculated. The trial court disagreed.

On appeal, the Ninth Circuit reviewed the federal law that defines regular rate to mean all “remuneration” for work subject to eight exclusions and various qualifications. One exclusion is payments made for occasional periods when no work is performed due to vacation, holiday, or illness. Although the Department of Labor and two other Circuits have interpreted sick leave buybacks as part of the regular rate of pay, the firefighters had an annual leave allowance that did not distinguish between sick and vacation leave. As a result, the appellate court affirmed the trial court’s decision.

#Overtime #Wageandhour

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