THE “80/20” ISSUE: AN UPDATE
BY MARY JANE DITTMAR
The failure of federal labor laws to keep up with changes that have occurred in fire departments and society in recent years has been threatening many fire department budgets and possibly even the overall configuration of the fire service itself. One issue that has contributed significantly to the problem is that of whether firefighters performing emergency medical services (EMS) are exempt under Section 7(k) of the National Fair Labor Standards Act (FLSA). Such an exemption provides that firefighters work 53 hours in seven days up to 212 hours in a 28-day cycle before they are entitled to overtime.
Several federal district courts have ruled against local governments that exempted firefighters whose duties consisted solely/primarily of performing emergency medical services from overtime under the FLSA. These decisions have cost some fire departments millions of dollars in settlements alone.
The FLSA exemption issue was brought to national prominence with West v. Anne Arundel County, Maryland (1990). The case was filed by county firefighters (initially academy trained) who had moved into the EMS sector and performed only EMS functions. They challenged their exemption under the FLSA.
Two similar cases–one involving Baltimore City and the other Baltimore County, in Maryland–were joined together with Anne Arundel and assigned to the same federal judge. The judge agreed with the plaintiffs and awarded them back pay for three years (time and a half for all hours worked in excess of 40 per week), liquidated damages in a like amount, and attorney fees and costs.
The plaintiffs in the City of Baltimore suit were single-role paramedics not sworn or trained as firefighters. They were prohibited from entering structures. The City agreed to cross-train the personnel as firefighters. The plaintiffs in the Baltimore County and Anne Arundel actions were firefighters who moved into EMS and performed only EMS functions. These decisions are under appeal.
In Chicago v. Alex, et al, City of Chicago (IL) Fire Department EMS personnel challenged their exemption under the FLSA on the basis that department paramedics do not actually engage in fire suppression activities even though they had made numerous requests of the city and the union to become cross-trained. On appeal, the U.S. Court of Appeals for the Seventh Circuit ruled that the paramedics did not qualify for the FLSA Section 207(k) exemption. The court stated that the “paramedics were not trained, expected, or allowed to put out fires or rescue fire victims.” Actually, Chicago paramedics were not automatically dispatched to fires–less than one percent of their calls were fire-related. The Supreme Court in December 1994 rejected the City of Chicago`s appeal and let the original ruling stand. The City of Chicago paramedics will be cross-trained; they will constitute 10 percent of each future new firefighting class.
In May (at press time) it was reported that paramedics and EMTs in Manatee County, Florida, filed a lawsuit in district court against the county. The suit contends the county has willfully refused to pay them overtime compensation under the federal FLSA. The county maintains that “paramedics and EMTs fall under the exemption because they often work side-by-side with firefighters when responding to rescue calls, such as vehicle accidents and fires.” (Bradenton Herald, May 16, 1995, pp. 1-2.)
Other FLSA/EMS cases have been filed including those in Anchorage, Alaska; Kansas City, Kansas; and Memphis, Tennessee. These departments also have agreed to cross-train their personnel.
FLSA CRITERIA FOR EXEMPTION
Under the FLSA (Section 7(k), 29 USC 207(k), 29 USC 20l et. seq.), a partial overtime exemption is permitted for fire protection and law enforcement personnel… employed by public agencies on a work-period basis (29 CFR, Section 553.201). The term “an employee….in fire protection activities” refers to any employee
who is employed by an organized fire department or fire protection district;
who has been trained to the extent required by state statute or local ordinance;
who has the legal authority and responsibility to engage in the prevention, control, or extinguishment of a fire of any type; and
who performs activities required for, and directly concerned with, the prevention, control, or extinguishment of fires, including such incidental nonfirefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills, and inspecting homes and schools for fire hazards….
The term also includes rescue and ambulance personnel who form an integral part of the public agency`s fire protection activities (29 CRF, Section 553.210(a). (They must have been trained to rescue and must be regularly dispatched to fires, crime scenes, riots, natural disasters, and other accidents.)
In addition, even employees who form an integral part of the fire department`s fire protection activities have claimed nonexemption on the basis of 29 CFR, Section 553.212, which provides in part: Employees engaged in fire protection…activities as described in Section 553.210…may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection…activities. For example, firefighters who work for forest conservation agencies may, during slack times, plant trees and perform other conservation activities unrelated to their firefighting duties. The performance of such nonexempt work will not defeat…the section…[207(k)] exemptions unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection… activities for the purposes of this part [the so-called “80/20” clause].
A May 7, 1993, opinion letter from the U.S. Department of Labor (DOL) ruled that in certain cases nonfire EMS personnel may be entitled to the FLSA exemption where such personnel are an “integral part” of a fire department`s activities. This would be determined on a case-by-case basis by the DOL. This ruling, some suggest, could be favorable to private ambulance companies looking to replace public fire ambulances in partnership situations. “The 80/20 issue may have the potential to tie up hundreds of fire departments in courts overnight if outside providers were to challenge the exempt status of EMS personnel on the basis of this provision,” says Doug Brown, director of the International Association of Fire Chiefs (IAFC) Government Relations Team (GRT).
MOST RECENT DOL CLARIFICATION ON FLSA 80/20
In a letter dated February 2, 1995, sent to Alfred K. Whitehead, general president of the IAFF, and Chief Tom L. Siegfried, president of the IAFC, Maria Echaveste, administrator of the U.S. Department of Labor Employment Standards Administration, Wage and Hour Division, submitted the following clarification of the FLSA 207(k) provision:
“….We have concluded that firefighters who are cross-trained as EMTs qualify for exemption under Section 7(k) as fire protection employees where they are principally engaged as firefighters meeting the four tests outlined in 29 CFR 553.210(a)…and where the EMT functions they perform meet the tests described in 29 CFR 553.215 for ambulance and rescue employees. Under these circumstances, FLSA would consider that ambulance and rescue activities are incidental to the employees` fire protection duties within the meaning of the fourth test in 29 CFR 553.210(a), including any ambulance and rescue activities related to medical emergencies, rather than fires, crime scenes, riots, natural disasters, and accidents.
“In those circumstances, the time engaged in ambulance and rescue activities would be considered to be work performed as an incident to or in conjunction with the employees` fire protection activities within the meaning of 29 CFR 553.212(a), and would not count in the 20 percent limitation on nonexempt work….”
The ruling was heralded by the IAFF. “The U.S. Department of Labor has upheld the IAFF`s long-held position that fire fighters who are cross-trained as EMS personnel should be treated as firefighters for FLSA purposes,” Whitehead says. “This ruling by the DOL should put an end to efforts by private ambulance companies and other opponents of fire-based EMS who have tried to cloud the issue by suggesting to city officials that the so-called `80-20 Rule` would reduce the cost-effectiveness of cross-trained firefighter/paramedics and EMTS,” he added.
“EMS is an integral part of the firefighter`s duties. The fire service began the EMS process,” notes George Burke, IAFF director of communications. “The mission of the fire department lays it at the front line of defense and protection in a myriad of instances. To try to separate the duties of cross-trained firefighters is hard to do,” he adds. He cites as an example rescuing a victim from a burning building/vehicle and treating him. “That`s one of the reasons we asked for this clarification from the DOL,” he explains.
Calling the DOL letter a “positive sign and a step in the right direction,” the IAFC, however, expressed some concern about the language in the DOL clarification, adding that two labor-law attorneys who reviewed the letter found it “not crystal clear in its explanation.” Of particular concern is that the letter does not specifically mention “paramedics” or “first responders” as being exempt–only EMTs are mentioned. Such omissions, the IAFC maintains, could result in more litigation, since “the federal district court system and not the DOL hears FLSA cases and ultimately renders decisions.”
The IAFF, on the other hand, points out that the DOL clarification is an exemption for firefighters cross-trained to all levels of EMT including paramedics when they are employed by an organized fire department or fire protection district, are trained as firefighters, have the legal authority or responsibility to engage in fire suppression, and actually perform fire suppression activities from time to time as part of their duties. “Cross-trained, dual role firefighter/EMTs who meet each of these tests are considered to be firefighters under the exemption, regardless of the time engaged in ambulance and rescue activities as EMTs. In addition, the time spent in such EMS activities is not counted in the 20 percent limitation on duties not related to firefighting under the so-called `80/20 Rule,` ” the IAFF maintains. “There is no FLSA overtime problem when you have cross-trained, dual-role firefighter/EMTs as long as they`re integrated. That was made clear by the DOL ruling,” Burke asserts.
ADDITIONAL FIRE SERVICE INITIATIVES
The IAFC believes that the FLSA should be “modernized” to reflect the duties performed by the fire and emergency services in 1995. The IAFC`s Government Relations Team has researched and developed a revised definition for “firefighter” (see box on page 48) and has solicited comments on the original draft from a diverse group of fire and emergency service leaders.
An updated federal definition of firefighter, the IAFC says, would serve as a benchmark to modify the FLSA 7(k) provision and expand the overtime exemption to cover all the duties a firefighter now performs or may perform in the future. The new definition of firefighter includes the term “managed health care,” in recognition of the expansion of fire/EMS into this emerging medical field. The inclusion, says the IAFC, will enable fire/EMS to compete with private EMS for nonemergency, managed health-care services.
According to Brown, Phase 1 of the IAFC`s “redefinition” campaign–directed at having federal legislation and regulations reflect the true nature of a firefighter`s duties–will include using the volunteer Firefighter and Rescue Squad Worker Protection Act (H.R. 94) as a vehicle. H.R. 94 was reintroduced in the 104th Congress by Rep. Herbert Bateman (R-VA) and Sen. John Warner (R-VA). The IAFC Volunteer Section, under the direction of Chiefs William Goldfeder of Loudoun County (VA) Fire & Rescue Services and Tom Owens, of Frederick County (VA) Fire & Rescue, with the assistance of the National Volunteer Fire Council, has been working with legislators to modify and clarify specific points and language–including the definition of firefighter–of H.R. 94. (H.R. 94 would amend the FLSA to make it possible for paid firefighters or rescue squad members to volunteer on their off-duty time, without coercion, for the same fire organization that regularly employs them.)
In addition, Rep. Cass Ballenger (R-NC) is expected to introduce an FLSA Reform Act after a series of hearings on FLSA reform now in progress within the House Committee on Economic and Educational Opportunities has been concluded. One hearing was held the beginning of April; other hearings have been scheduled–two for early June and one for July.
Phase 2, Brown explains, will include updating the Federal Standard Occupational Code, which lists definitions of jobs.
The final phase will update the definition of firefighter in the private sector–in career handbooks, college catalogs, and dictionaries, for example.
Several sessions at the IAFC`s Fire-Rescue International conference, which will be held in Louisville, Kentucky, from September 9-13, will be devoted to FLSA/EMS issues. n
IAFC`S PROPOSED DEFINITION
OF “FIREFIGHTER”
Following is the wording of a draft of the proposed new definition of a firefighter prepared by the International Association of Fire Chiefs Government Relations Team.
“A firefighter is a trained individual who promptly responds to mitigate a wide range and variety of emergency and non-emergency situations where life, property or the environment are at risk. A firefighter`s assignments vary based on geographic, climatic and demographic conditions or other factors, including training, experience and ability. Firefighters include career and volunteer personnel.
“A firefighter`s duties include fire suppression (including structural, wildland, transportation or all other types of fires); fire prevention (including code enforcement, inspections, investigation and public education); and also include, but are not limited to, emergency medical services (including basic and advanced life support and ambulance transport services); managed health care services; hazardous materials response and preparedness; technical rescues (such as extrication, water, high angle or confined space); urban search and rescue (involving compromised structural rescues); disaster management and preparedness; community service activities; public safety calls (including animal rescues, lockouts, and standbys); response to civil disturbances and terrorism incidents; non-emergency functions (such training, pre-planning, communications, maintenance, research and development, and physical conditioning); and other related emergency and non-emergency duties as may be assigned or required.” n
MARY JANE DITTMAR is associate editor of Fire Engineering. Previously, she was editor of a health/nutrition trade magazine, a teacher, and a medical advertising writer/copyeditor. She has a bachelor`s degree in English and a master`s degree in communication arts.
