*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)


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-


*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.”


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.


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!

Watch firehouselegal.com for more updates, news, and info.

Hello and welcome to my little blog about the fire service and the law. I sincerely hope you will find it informative, thought provoking, or at least entertaining. If I can accomplish any of those three goals then I will consider this adventure a success. 

This blog is the product of several different things. First, a recognition on my part that over time representing the fire service, many of the same questions/issue come up time and again.  Second, the non-stop encouragement (See: Badgering; hounding) of my colleague Aaron Lukken, author of The Hague Law Blog, who believed beyond a shadow of a doubt I should be blogging, and making my voice heard. Ultimately however, it was the third reason for starting this blog that tipped the scale and sent me over the edge into the blogosphere.   Continue Reading Welcome to Firehouse Legal!

Question of the day: If there is no business to conduct (which, in rural areas is a distinct possibility) then why have a monthly meeting? Is it not a colossal waste of time and effort? 

The answer to the first question is because it’s the law. The answer to the second question, in typical lawyer fashion, is maybe yes and mostly no. And the second answer probably changes based on District size and workforce.

Fire Protection Districts in the state of Missouri are mandated to hold at least one meeting per month. If you’re curious, the statutory reference is contained in RSMO 321.200.1.  Its right there in the first line and its pretty clear: “…the board shall meet regularly, not less than once each month.” This statute sets the minimum of course, and districts may meet more regularly as they deem necessary in the interests of the District. However, at least one monthly meeting is always required.  Continue Reading If There’s Nothing to Do, Why do we Meet? (Hint: It’s the Law)

Based on my experiences, I believe that even amongst those who have served as fire chiefs or elected board members there are still some fundamental misconceptions or downright falsehoods about fire protection districts.  So, what is a fire district? 

In Missouri at least (although the basic statutory schemes for fire districts are very similar across the United States) a Fire Protection District is a specifically geographically delineated political subdivision created by a vote of its citizens under the laws of the State of Missouri. It serves only a handful of purposes; namely the prevention and/or mitigation of fire.  This service can be expanded into the realm of other closely related functions such as rescue and hazardous materials response, or Emergency Medical Services (RSMO 321.010; 321.225).  Continue Reading The Fire Protection District

In August of 2018 new legislation took effect in Missouri allowing special taxing districts greater control to recoup greater amounts from tax abated projects within district boundaries.  The changes enacted by SB 870 apply to RSMO chapters 99, 100 and 353 projects, subject to certain conditions. Despite the legislation being several years old I continue to speak with Districts that are not aware of the legislation, or don’t know how to protect themselves. 

In order to take advantage of the greater degree of control allowed for these projects fire districts must annually review and set a “reimbursement rate” (expressed as a percentage of the expected revenue from the project should it not be tax abated) for the upcoming year. Timing is important–This must be done prior to the determination of assessed valuation each year. It is also important to note there is no retroactivity provision (no mulligans!) so an approved reimbursement rate cannot be applied to previously approved projects within a District. The get-out-of-jail-free card for previously approved projects is amendments—any Chapter 99, 100, or 353 project amended after the passage of a reimbursement rate resolution would then be subject to the adopted reimbursement rate.  Once the reimbursement rate is set all jurisdictions with the power to approve a tax abated project within the District must be notified.  Continue Reading Reimbursement rate resolutions and Missouri Fire Districts-protect yourself from the TIF

Over the last few weeks I have answered multiple calls from agencies unsure how to best approach worker’s compensation coverage for firefighters, medics, EMT’s, and police during the Coronavirus crisis. Given the proliferation of the virus and its ability to spread quickly through minimal contact, employers and employees alike wondered how proof of a workplace exposure could ever be proven or disproven in the new normal these emergency workers now inhabit. Fortunately, a portion of that unknown area has been addressed and some of the guesswork removed. 

Acting pursuant to powers under the Governor’s Executive Orders 20-02 and 20-04, the Missouri Department of Labor and Industrial Relations, Division of Worker’s Compensation, has enacted Emergency Rule 8 CSR 50-5.005. This rule creates a presumption that any First Responder (as defined by RSMO 287.243) who has contracted or is quarantined for Covid-19 is presumed to have contracted the disease at work. Under the Emergency Rule firefighters and EMT’s will be presumed covered by worker’s compensation if any of the following occur:  Continue Reading Missouri Enacts Emergency Rule Providing Presumptive Covid 19 Coverage for First Responders