The question here is whether municipal paramedics must be paid overtime after 40 hours or are subject to higher overtime thresholds applicable to firefighters and other emergency responders under the Fair Labor Standards Act.
While some courts have found paramedics were covered by the traditional 40-hour overtime threshold, others and the U.S. Department of Labor have sided with municipalities, holding that paramedics were subject to the higher overtime thresholds set forth in FLSA Section 207(k), which provides a special overtime pay schedule for emergency responders.
In Lawrence et al. v. City of Philadelphia, more than 200 current and former fire service paramedics sued, claiming that their regular schedule and compensation structure violate the FLSA. They argued they should have been paid at overtime rates for all hours worked over 40 in a workweek, instead of the city’s practice of paying for hours worked beyond their regular schedule, which varies from as little as 34 hours to as much as 48 hours in a traditional Sunday-to-Saturday calendar week.
Philadelphia defended the case on the grounds that through a 1999 amendment to the FLSA, Congress included paramedics such as the plaintiffs in the FLSA’s definition of "fire protection employees," to whom higher overtime thresholds apply under Section 207(k).
Recognizing that the traditional 40-hour-a-week overtime threshold could be a severe financial burden to municipalities providing police, firefighting and other emergency services on a 24-hour-a-day basis, Congress included Section 207(k) in the FLSA. This provided a schedule where higher overtime thresholds apply and are based upon the length of a particular emergency responder’s rotating work period, instead of a traditional Sunday-to-Saturday workweek.
Under FLSA and U.S. Department of Labor regulations setting forth pay schedules, such fire protection employees are not entitled to overtime payments until they have worked at least 61 hours in an eight-day work period. If the Philadelphia plaintiffs qualified for this partial exemption, their claim would fail because they hadn’t worked more than 61 hours in a work period without overtime pay.
While at first glance this issue would appear to be easily resolvable (after all, the statute specifically states that "paramedics" qualify for the higher overtime threshold), it actually requires a fact-intensive inquiry, thanks to the definition of what constitutes a fire protection employee under the FLSA.
Section 203(y) defines fire protection employees to include paramedics who are "trained in fire suppression, [have] the legal authority and responsibility to engage in fire suppression," are employed by a municipal fire department, and respond to emergency situations where life, property or the environment are at risk. Therefore, the issue most often involves whether paramedics have sufficient "training in fire suppression" and "authority and responsibility to engage in fire suppression," as opposed to just being trained in and providing medical services.
The Philadelphia paramedics claimed they did not meet the statutory definition of a fire protection employee because they lacked sufficient training in fire suppression and were not authorized to engage in firefighting. However, in a Memorandum and Order dated September 29, 2006, U.S. District Judge Clifford Scott Green ruled that the paramedics qualified under Section 203(y), finding that, in amending the FLSA in 1999, Congress had specifically determined that paramedics such as the plaintiffs should be covered by the higher overtime thresholds applicable to fire protection employees.
The court first addressed the plaintiffs’ argument that only fully trained firefighters could qualify for partial exemption. While it was clear that firefighters received more in-depth fire suppression training than paramedics did, the court found that paramedics were nevertheless required to attend several weeks of training at the Philadelphia Fire Academy and to satisfactorily complete relevant fire suppression instruction and testing. Noting Pennsylvania law specifically gives the fire commissioner authority to determine the appropriate amount of training for a locality, the court said the training provided was sufficient under state law, concluding that paramedics had been sufficiently trained in fire suppression to qualify for the partial exemption.
Next, the court addressed the plaintiffs’ claim that they lacked any authority or responsibility to engage in fire suppression, pointing to examples in the record where fire service paramedics had been ordered to perform, and had engaged in, various types of firefighting. The fire service paramedics were also issued the same fire-protective uniforms and self-contained breathing apparatus as regular firefighters. In addition, at the beginning of their careers, all fire service paramedics sign an "FSP Code of Conduct," acknowledging their "responsibility to render Fire Suppression." Ruling in favor of the city of Philadelphia, the court held this demonstrated sufficient "authority," and concluded the paramedics qualified for the Section 207(k) partial exemption.
On October 24, 2006, the Philadelphia paramedics appealed this decision to the 3rd Circuit Court of Appeals. A decision on their appeal is not expected until summer of 2007.
Other courts have also weighed in on this issue. Some jurisdictions have looked at the context of "dual-function" paramedics—that is, paramedics who sometimes act as firefighters—with widely varying results. In June 2006, the U.S. Court of Appeals for the 5th Circuit ruled against paramedics in Water Valley, Mississippi, finding that higher overtime thresholds of Section 207(k) applied. The court decided that paramedics there had sufficient training in firefighting, and therefore qualified for the partial exemption. That case is McGavock v. City of Water Valley, 452 F.3d 423 (5th Cir. 2006).
However, several courts have sided with paramedics who asserted FLSA claims. In California, there have been numerous decisions in favor of dual-function paramedics, asserting they should receive overtime after 40 hours in a week. In Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005), the 9th Circuit Court of Appeals affirmed one such decision and held that firefighter-paramedics did not qualify for higher overtime thresholds while they were assigned to ambulances instead of firetrucks. Since ambulances had no firefighting equipment and paramedics were not issued fire-protective gear, such as a self-contained breathing apparatus, they had no real responsibility for fire suppression.
In addition, in September 2006, a Florida U.S. district court held in Diaz v. City of Plantation, Florida, No. 05-60757, that Plantation’s paramedics did not have sufficient authority to engage in fire suppression to qualify under Section 203(y). There was no evidence they had ever been ordered to put out fires, the court said.
The U.S. Department of Labor has also weighed in on the controversy, in favor of municipalities. In two fact-intensive wage and hour opinion letters, dated September 9, 2005, and June 1, 2006, it concluded that dual-functioning paramedics qualified for the higher overtime thresholds of Section 207(k).
These conflicting decisions present significant challenges for municipal fire department administrators, as well as for their human resources and compensation managers. While the Philadelphia lawsuit’s outcome may have a significant impact on pending overtime cases nationwide, there are concrete steps municipalities can pursue in the meantime.
If employers want to take advantage of Section 207(k), for example, they should ensure that paramedics receive at least some minimal fire suppression training, that they are issued fire-protective clothing and equipment, and that they have some responsibility to engage in fire suppression activities even if only on an "as needed" basis. Municipalities should also confirm that their compensation scheme complies with FLSA and/or any applicable state wage and hour laws to avoid the firestorm of potential claims.