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May 24, 2010
Was He a Law Enforcer, a Firefighter, or Both?
Several Alabama firefighters spent many hours in training, including graduating from the police academy as well as state and national fire investigation academies, to become fire investigators. At least eight succeeded, among them one whose shift assignments made him wonder whether he was being paid as much overtime as he deserved.

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What happened. “Clyde,” a lieutenant and a fire investigator in Montgomery, worked a 24-hour shift followed by 48 hours off. Like all city fire investigators, he was responsible for researching the origins of fires that involved loss of life, appeared to be arson or other crimes, or set off multiple fire alarms. While acknowledging that he performed a dual role—investigators were required to fight fires when necessary, to participate in periodic drills, and to keep their firefighting equipment in their duty vehicles—he considered himself primarily a law enforcement officer.

Why would he care? As in turns out, the Fair Labor Standards Act (FLSA) makes an important distinction between the two jobs: Law enforcement employees are entitled to time and a half for hours worked in excess of 86 in a 2-week period, while overtime for firefighters doesn’t begin until they’ve worked 106 hours in 2 weeks. Having always been paid as a firefighter, Clyde sued, on behalf of himself and the seven of his colleagues who were also fire investigators, for unpaid overtime.

The group went to federal district court, where a judge interpreted a 1999 amendment to FLSA to mean that fire investigators are firefighters, so he dismissed their case. They appealed to the 11th Circuit, which covers Alabama, Florida, and Georgia.

What the court said. Appellate judges reviewed both the 1999 amendment and a 1987 Department of Labor regulation governing employees with “dual assignments,” which defined the activities of a firefighter. The regulation states that whether an employee is a firefighter or a law enforcer depends on how he or she spends most on-the-job time. And, Clyde and his fellow fire investigators unquestionably spend most of their time investigating the causes of fires rather than fighting them. Further, judges said, nothing in the 1999 amendment changes anything in the 1987 regulation—nor vice versa. So the suit was sent back to the lower court for reconsideration. Cremeens et al. v. City of Montgomery, U.S. Court of Appeals for the 11th Circuit, No. 09-15633 (4/5/10).

Point to remember: FLSA and accompanying regulations govern a number of public jobs, such as firefighters and law enforcement officers, differently from most private positions. 

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