Partial Overtime Exemption: Fire Protection Employees

Kayla Moreland , May 14, 2015

The FLSA generally requires employers to pay overtime compensation for work performed in excess of 40 hours in a workweek.  Certain employers, such as public sector fire departments, can establish “special 7(k) work periods” in lieu of the standard overtime threshold of 40 hours a week.  Under this partial overtime exemption, employers may increase the overtime threshold and determine overtime pay on a “work period” basis, rather than a weekly basis.  A work period under Section 7(k) may range 7 to 28 consecutive days in length.  Under a 28 day work period, for example, employers must pay overtime if the employee works over 216 hours.

Employers may only apply this partial exemption to “employees in fire protection activities.” As defined in Section 3(y) of the FLSA, this includes employees that: (1) are trained and have the legal authority and responsibility to engage in fire suppression; and (2) employed by a fire department of a municipality, county, fire district, or State and engaged in the prevention, control, or extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.  In order for employers to take advantage of the Section 7(k) work periods, however, the regulations interpreting the FLSA state that the work period must be established and regularly recurring.  Although a work period may be changed, the employer must intend for those changes to be permanent and may not structure the work period in a way that evades the overtime requirements of the FLSA.

Source: Fire Department Employees Not Covered by FLSA Exemption (April 17, 2014)
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