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DOL Publishes Final Regulations on Some FLSA Provisions

 Today the Department of Labor (DOL) issued regulations on a series of Fair Labor Standards Act (FLSA) issues, some of which apply to fire fighters.  Going back to July 2008, the Bush Administration DOL had issued a "Notice of Proposed Rulemaking" - an NPRM - that sought to unwind some important protections for employees. 

For example, they sought to revise interpretations of overtime rules for employees who sought to use accrued compensatory time.  The proposed rule was to allow an employer to block an employee's choice of when to use comp time.  This is best illustrated by an example.  Say I have some comp time that I want to use to see my daughter's recital next week, on Thursday.   Under the law, an employee like me "shall be permitted to use [the comp time] within a reasonable period after making the request."  That had long been interpreted to mean that, if I asked long enough before the recital so that the employer is reasonably forewarned, the employer cannot refuse my request.

Most importantly, the law had long been interpreted to mean that the employee got to choose when I could take the comp time.  Not so, said the Bush DOL.  They argued that the law didn't allow me to choose when to use it.  So if the employer didn't want me to take time off on Thursday, but instead Friday, it could do so.  Too bad I will miss the recital!

The IAFF forcefully objected to this proposed regulation, in both meetings and submitted, written comments.  Today, the final rule (quoting extensively from our comments and those of other labor organizations) agreed with the objections, and issued a final rule that continues to allow employees to get time off on the date and time of their choosing so long as the request is made within a reasonable period.  Count it as a win.

The Bush DOL also sought to issue regulations on the section 7(k) exemption for employees engaged in "fire protection activities."  This definition determined who would be counted as subject to the 53-hour-per-week (on average) threshold as opposed to the 40-hour-per-week threshold.  The proposed rule did away with the outdated and unworkable "integral part" test of the regulations, but it contained some drafting errors that suggested that employees who engaged in "incidental nonfirefighting functions" could still be exempted.  Our concern was that true paramedics or EMTs - single role employees - and other employees not trained in fire suppression and lacking the authority and responsibility to engage in fire suppression would be counted within the partial exemption.

In response to the comments, including ours, DOL decided not to depart from the statutory interpretation as was proposed in 2008.  The final rule simply quotes the statute.  Count that one as a win, too.

There are many other changes created by the final rule, but they generally apply to other employees (like tipped employees) and not fire fighters or other first responders.

The final rule can be found here.


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