Since this month’s issue includes the JEMS Salary Survey, it’s fitting that this month’s column addresses some of the basics about proper EMS pay practices. Although compensation issues are also regulated by state law, the Federal Fair Labor Standards Act (FLSA) establishes important ground rules for all employers. Here are a few FLSA landmines to be aware of.
Overtime: The basic rule is that nonexempt employees (which includes EMS field providers) must be paid overtime at “time and a half” (i.e., 1.5 times) their “regular rate” for hours worked in excess of 40 during a workweek. The employer must have a policy clearly establishing when the workweek begins and ends, and records of hours worked by each employee must be kept. The workweek can begin at any hour on any day. It need only be any seven consecutive periods of 24-hour days; it doesn’t have to coincide with the calendar week, and an employer may have different workweeks for different employees or groups of employees so long as the workweek policy is clearly documented for each.
Regular Rate: The “regular rate” is an area that can trip up employers, particularly if they have employees who perform different jobs within the same organization. Say, for instance, that Sally Smith works as a paramedic at $20 per hour and as a dispatcher at $15 per hour for ABC Ambulance. In a given workweek, if Sally works 20 hours as a paramedic and 20 as a dispatcher, her “regular rate” would be $17.50, because this is the average hourly rate of pay for all of her hours worked.
Exemptions and Exceptions: The FLSA has numerous exemptions and exceptions for overtime calculations. Certain employees (administrative, executive, professional and computer employees) are exempt from having to be paid overtime, but the FLSA is also clear that EMTs, paramedics and others whose primary job is work in the field cannot be exempted from overtime. Also note that overtime can’t be “bargained away”— an eligible employee cannot agree to waive overtime and any such agreement is unenforceable under the law. There are also some exceptions to the 40-hour overtime rule, most notably the Section 7(k) exception, which applies to certain public-sector firefighters (and must be applied very carefully within the strict boundaries of the law).
Sleep Time, Meals & Breaks: The FLSA does, in some circumstances, permit employers to deduct from compensation time spent by employees while sleeping. The sleep time rules permit deductions of up to eight hours for a minimum 24-hour shift where employees have ample sleeping quarters and can get at least five hours of uninterrupted sleep time during designated sleep periods. Meal periods must be paid unless the break is at least 30 minutes and the employee is completely relieved of duty during this time (which, of course, is usually not the case in EMS).
Training Time: Employees must normally be paid for time spent attending mandatory, job-related training and education sessions held during work hours. Employees aren’t required to be paid for attendance at meetings, lectures, training program and similar activities if they are voluntary, held outside normal hours, are not job related, and are performing no other concurrent work at the time.
Volunteers: A particularly thorny issue under the FLSA deals with volunteers. The basic rule is that an employee cannot be permitted or required to volunteer to perform the same or similar job functions as he or she is employed to perform for the same agency. Any such “volunteer” time by an employee may be compensable under the FLSA. While a volunteer can be paid reasonable expenses or honorarium without losing their volunteer status, the rules on volunteers are more complex and volunteer EMS agencies (and especially combined paid/volunteer agencies) should ensure their legal counsel reviews their compliance with the FLSA and any applicable state laws.
EMS agencies need to pay close attention to proper pay practices to ensure compliance with federal and state laws. Engaging the services of a knowledgeable employment law attorney can pay dividends down the road in helping your agency avoid pay practices litigation.
Pro Bono is written by attorneys Doug Wolfberg and Steve Wirth of Page, Wolfberg & Wirth LLC, a national EMS-industry law firm. Visit the firm’s website at www.pwwemslaw.com for more EMS law information.