After many years of work at the State legislative  level, and several unsuccessful attempts at a presumptive cancer coverage law, in 2021 the Missouri Fire Service Alliance was able to guide passage of Senate Bill 45, enabling creation of a fire fighter’s cancer benefits pool in the state.

Among other provisions, the law allowed for the formation of the Missouri Fire Fighters Critical Illness Trust (mffcip.org), which is now up and running, and further seeded the Trust with an initial grant of funds to jump start the process. For the long term, the Trust will be funded by contributions from individual departments that choose to participate. Currently, 17 different types of cancer are covered by the program.

Cancer in the fire service is a personal matter to me, and I am honored to have assisted with the formation and ongoing of the MFFCIP. I believe this Trust will be a game changer for Missouri fire fighters, and may even provide a template for other states to move forward with a presumptive coverage mechanism when they have previously remained hesitant to cover their fire fighters.

Check out the latest press release here: https://www.mffcip.org/missouri-finds-solution-to-firefighter-cancer-with-fire-fighters-critical-illness-pool/

*Firehouse Legal blog posts provide information only and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

In prior blogs I’ve discussed the application of FLSA rules to the fire service, and how to determine whether or not the specific hours worked exemption for fire fighters will apply to your work force. As you recall, FLSA grants a workaround because the standard “overtime after 40 hours” rules don’t work with the firefighter 24-hour work schedule—it’s a square peg in a round hole.

Once you’ve determined that the FLSA 7k exemption applies to your fire fighters, (See: Fire Chief’s Legal Toolkit Part 2 ) the next few steps are relatively simple.  You will need to adopt a work period, generally between 7 and 28 days. If you are assuming leadership of an up and running department this most likely is done already; if you are making a conversion from volunteer to full time fire fighters, or otherwise starting a new entity then you will need to address this step. Don’t confuse fire fighter work period and pay period; they aren’t the same thing. One determines the period for overtime calculations, and the other sets the frequency and time period for paychecks.

Why is the work period generally set for something between 7 and 28 days? Part convenience and part rule. The convenience relates to the pay period issue—most pay periods are on some sort of a schedule that is less than 28 days in length. If you can sync up your work period and your pay period, your administrators and bookkeepers tend to find it easier to deal with the odd hours worked issues that firefighters present. (There always sems to be a struggle to understand the interplay between the issues, and it’s not limited to administrative personnel—fire fighters don’t always get it either.)

The “rule” side of work period determination for firefighters is based on the following: Any adopted work period is based on a 28 day, 212 max hours worked basis. If you adopt a work period that is less than 28 days, then you apply a ratio to calculate the maximum number of hours your firefighters can work before reaching overtime.  For example, if you adopt a 27-day work period, then the FLSA max hours worked will be 204 before reaching overtime. If your Finance Director or Accountant is freaking out over the math there’s no need to stress. There are abundant charts just a Google search away to help you. (Like this one for example.) Make sure you utilize a fire department FLSA chart and not one designed for law enforcement. While law enforcement also has an FLSA exemption, it is different than the fire service.

There are, of course, other considerations as well, because nothing is ever as simple as we would like it to be. You may have state laws that alter the max hours worked, and could impact firefighter overtime. If you are chief for a department with a collective bargaining agreement, that agreement may also create some alterations to the standard rules. It’s important to be aware of any rules that may impact the max hours worked, and make sure you understand the application.  You still may need to engage an expert if trouble arises, but you will at least understand the interplay of all the components during the process.

Stay safe-CS

Another great year at the MAFPD annual conference.  I enjoyed the discussions during my “Return of the Roaring 20’s” presentation and the turnout was great!

By the way, if you are a firefighter and have not had the opportunity to listen to Dr. Sarah Jahnke speak on firefighter health and well-being, you absolutely must make a point to catch one of her presentations. The research she and her colleagues are conducting right now on behalf of firefighters is mind blowing. I highly recommend seeking out and listening to what she has to say–you won’t regret it, trust me.

Next up: Missouri Valley Fire Chief’s Association on July 15, Independence, Missouri.  I’ll be presenting another session of “The Fire Chief’s Legal Toolkit”, covering everyone’s favorite topics from FLSA to due process. You can register here  Missouri Valley Fire Chiefs to join the fun next month. Hope to see everyone there!

*Firehouse Legal blog posts provide information only and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

Last month we dealt with a threshold question: Does the FLSA apply to the fire service? The answer, of course, was yes. The next questions in the algorithm are: Is the employee “exempt” from overtime pay, or “non-exempt”; and if non-exempt, is the employee engaged in “fire protection activities?”

The exempt/non-exempt issue seems to trip people up. While the definition is straightforward, the determination may not be so simple.   “Exempt” means the employee is exempt from overtime pay; non-exempt means regardless of what other considerations and calculations are at stake, the employee is going to be eligible for an overtime rate after a certain number of hours worked.

The determination will be slightly different for each department, because we have no set rank/authority/policy making structure in place universally. One department’s captain is another department’s deputy chief, so titles clearly are not the determining factor.  The actual primary type of work (Executive/Administrative/frontline operational), along with level of decision and policy making authority matter much more than the title. There are multi-pronged questions to make the determination, based in part on cases  here, here, and here; and statutes here, here, and here.  The Stone-Cold best- practice-bottom-line: Being a supervisor is not enough to exempt you from overtime; likewise, running a few emergency calls every once and awhile is not enough to make you eligible for overtime. When your tones drop, if you are not compelled to immediately drop what you are doing to run a call, because your primary function is administrative or executive (paperwork, politics, and people), you are probably exempt from overtime.  The reverse may also be applied: When the call comes in if you are required to respond, whether to manage the incident or directly provide rescue, medical, or suppression services, you are probably non-exempt. Fair warning: These determinations can get very tricky as you work your way up the chain of command.  Do not hesitate to get your lawyer involved to help; an ounce of prevention in these matters is worth the cost.

If your employee is considered non-exempt, the next question is whether or not the FLSA hours worked exemption for fire fighters (the “7K Exemption”) applies.  If the employee is engaged in “fire protection activities” you can apply the FLSA “hours worked” calculation based on a traditional fire fighter schedule (we will discuss this in a later installment) to the overtime determination; if not, then a forty hour work week calculation should, in most instances, apply.

What is “engaged in fire protection activities”?  Over the course of my career, the “fire protection activities” I have undertaken ranged from fighting actual fires to mopping floors to National Fire Academy courses to rescuing a very unappreciative miniature pinscher from sewer drain. The statute and certain case law does offer the following bit of definition for us to work with:

  1. Is the employee trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or state; AND
  2. Is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

For rank-and-file fire fighters this is generally a simple determination; when we start adding in all the other fire service job classifications (paramedic, investigator, inspector, dispatcher) it begins to get murky. And murkiness is where the lawsuits generally originate.  I’m not going got jump into the deep end of the case law pool but there are plenty of cases only a Google search away. I think the basic component parts should be fairly clear at this point.  Here are a “couple rules of thumb” to apply as a starting point when questions arise outside the norm:

  • Uniform fire inspectors, investigators, or prevention personnel are usually engaged in fire protection activities under the rule. This would exclude these personnel from the “overtime after forty” rule. This might change if those employees are non-uniform, civilian, or non-operational.
  • If your EMS personnel are a separate division of your department, don’t carry firefighting gear, aren’t trained in firefighting, or aren’t allowed to engage in firefighting, they are not engaged in fire protection activities and you will be required to pay them overtime wages for hours worked over forty hours.
  • Dispatchers are not listed in FLSA as being engaged in fire protection activities, and the courts have so far supported this as well, making dispatchers subject to overtime after 40 hours.

PLEASE NOTE: These cases, especially involving EMS, can be a VERY close call…if all the working conditions/job descriptions/requirements don’t obviously sync up or point in a specific direction, its time to call in the lawyers. (Trust me, we’re here to help.)

Next time:  The Fire Fighter Schedule and hours worked for overtime calculations. 

Something long-suspected is now systematically and scientifically being proven beyond any reasonable doubt:  Fire Fighters develop cancers at a higher rate than the general population, and the exposures to cancer causing agents come not just in higher numbers, but different types of agents than previously suspected.  The article below links to a study funded by FEMA documenting the heightened exposures of fire fighters. (For some Kansas City flair, Dr, Sara Jahnke of Center for Fire, Rescue and EMS Health Research in Kansas City is a co-author, two KC Metro departments were included in this study)

https://today.oregonstate.edu/news/firefighters-exposed-more-potentially-harmful-chemicals-previously-thought

This is worth a read to anyone in the profession, whether an old-timer (like me) or a rookie who wants to better understand how best to protect themself from an unseen but ever present danger.

Stay Safe-

CS

*Firehouse Legal blog posts provide information only, and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

So, let’s start with the threshold question: Does the FLSA apply to fire departments? The answer, as most everyone knows at this point, is yes it does. There are many, many workplace rules and laws that fire departments are not subject to, due to specific exemptions, or the fact that the fire service just don’t fit very neatly into standard definitions. In some instances (depending on the jurisdiction) fire chiefs can disregard certain laws almost entirely so long as we aren’t negligent in our actions. The Fair Labor Standards Act (FLSA) provisions are simply not on the list of things you can ignore. The rules of the fair Labor Standards act specifically apply to fire departments and local government agencies by definition and reference. If you want to take the deep dive, you may reference Section 3 (S)(1)(C) of the Act itself;  also 29CFR Part 553 Sub. A.  Specifically, local government agencies are classified as “employers” and the people who work for them are “employees,” as defined by the FLSA.  In this case, “employer” and “employee” have specific legal meaning and implication, and they are governed by the Act, bringing fire departments and their firefighting employees under the coverage of the FLSA.

Why has the FLSA proven so difficult for us to understand and manage?  The issue comes up time and again in my conversations with the fire service.  Part of the issue is the FLSA addresses a very broad range of topics related to the workplace, but many of which have marginal or no application to the fire service. For example: Classifications of certain employee types–executive v. white collar; rules related to specific industries–teachers, legislative employees, sales, tipped employees, elected officials; and other wage-related issues beyond standard overtime–comp time, minimum wage, etc. This doesn’t even contemplate the potential intersection, conflicts, and layers of applicable state law. When you consider the number of pages dedicated to the statutory law and associated regulations, and then add the ever-growing mountain of case law, I believe this is where the problems tend to originate.

Fire chiefs (and HR personnel) are regularly inundated with information about new wage and hour lawsuits. The problem isn’t the amount of information available to you; it’s what should you do with it. The vast majority of lawsuits related to the FLSA have no application to the fire service. Even cases involving other fire departments may have zero application—none—to your department, if the specific facts and law of that case are distinguishable from your department’s specific circumstances (an issue many HR professionals have a difficult time with). It’s a constant avalanche of information, and you are buried under it with no obvious exit.

I personally believe the starting point is understanding that not every FLSA case will matter to your department, and you shouldn’t dedicate brain bandwidth to very bit of noise you hear. When you are trying to figure out whether the latest FLSA case applies to your department, consider first the portions of the FLSA that matter most to the fire service: Classification of firefighting employees, hours worked for overtime maximums, exempt v. non-exempt issues, application of FLSA to volunteers, and FLSA wage rate; and second, whether the specifics of the case itself are comparable to your situation (Incidentally, these are the topics I will cover in the FLSA Legal Toolkit Series). The question of topic should be fairly easy to discern; the issue of case specifics and application will most likely require some legal assistance, unless the matter is just plainly obvious. If nothing else, this two-step sifting process may help quiet the voices in your head.

Next time: The Firefighting Employee- Exempt v. Non-Exempt, and “Fire Protection Activities.”

CS

Over the last few years I have spent significant time preparing and presenting discussions that have tackled broad scale legal topics within the fire service. I would sometimes spend my entire presentation time speaking on a single topic: Consolidations, the impact of Missouri’s medical marijuana legalization, fire department budget and finance issues, to name a few.  As you might imagine those types of topics are broad and deep, and even when you focus an entire 90-minute presentation on them you can’t really take a deep dive into the many working parts, pitfalls, or specific legal aspects.

In my unique position as a former fire chief and current attorney I am afforded the opportunity to spend time with a lot of folks in the fire service.  What I have found during these interactions is this: There are so many different legal areas that fire chiefs (especially new/aspiring fire chiefs) are expected to have functional knowledge of that it can be overwhelming, or impossible to get up to speed. After speaking with a bundle of fire chiefs, up-and-coming officers, and elected officials over the last few years and soliciting input, I took that information and went back through the conversations and communications I have had with departments and districts I represent or have counseled over the past few years. What I found was a pattern of questions and inquires—a group of “usual suspects”—that kept coming up.  And that is how the Fire Chief’s Legal Toolkit Series was born.

The Legal Toolkit Series will cover a variety of legal “stuff” in bite-size components.  My intent is not to take a single, comprehensive look into any one issue; rather, I’m going to try and give you some nutshell concepts, break bigger things that are important into component parts for easier consumption, and avoid legalese as much as possible. I’m not going to make you an expert; The idea is to help with basic understanding, not just toss a bunch of buzzwords around.  I want you to have the knowledge necessary to survive, stay out of legal trouble, and understanding what your lawyer is telling you when necessary. The more you understand these concepts the better our service and leadership will be.

And ultimately, if I give you some information that provokes a little thought, causes a policy review or two, or helps you build a relationship with your attorney then I will consider it a mission accomplished.

Stay Safe.

CS

Thank you to the Missouri Association of Fire Chief’s for inviting me to present “The Fire Chief’s Legal Toolbox” at your 2022 Annual Conference! I had a great time, the interaction with your members was outstanding–great Q&A!

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