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MRSC FOCUS › HR Advisor November 2005
 
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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics,and Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*

Paramedics and EMS Personnel: Do They Meet the Fair Labor Standards Act 7(k) Exemption?

November 2005

Denise L. Ashbaugh
Employment/Litigation Attorney
Summit Law Group, PLLC

Among the various complexities for employers of the Fair Labor Standards Act ("FLSA") is the partial exemption from the overtime provisions for certain law enforcement and fire protection employees. 29 U.S.C. § 207(k). This exemption – which is known as the 7(k) exemption – involves an adjustment to the work period for employers with five or more personnel. Id. If the department is smaller than five, there is a complete exemption from the FLSA. 29 U.S.C. § 213(b)20.

The 7(k) exemption creates alternative work periods which may be used by certain personnel within fire protection and law enforcement activities. An employer can choose work periods that vary from the standard length of 7 days up to 28 days. The work periods were primarily introduced to accommodate the long tours of duty used in law enforcement and fire protection and allow a maximum number of hours which can be required in a given work period before overtime is required. For example, for firefighters, the maximum allowable hours before overtime pay is required for a 7-day work period is 53 hours; for a 27-day work period it is 212 hours.

One category of employees that has created questions and differing opinions within the courts as to whether or not the 7(k) exemption applies is paramedics and other EMS personnel within a fire department. This article discusses generally, the current conditions that fire protection employees must meet to qualify for the 7(k) exemption, the current cases addressing paramedics or EMS personnel’s exemption, and what practical steps an employer can take to increase the chance of these individuals meeting the exemption.

A.The 7(k) Exemption For Fire Protection Employees

Only employees engaged in law enforcement or fire protection activities can work under a 7(k) exception. In order to qualify for the 7(k) exemption, fire protection employees must meet the following conditions:

  1. The employee works for an organized fire department or fire protection district;
  2. The employee has been trained to the extent required by state statute and local ordinance;
  3. The employee has the legal authority and the responsibility to engage in the prevention, control or extinguishment of fires; and
  4. The employee performs activities that are required for, and directly concerned with, the prevention, control, or extinguishment of fires.1

29 C.F.R. § 553.210. Unlike law enforcement, firefighters often have significant periods of time when they are not directly engaged in fire protection activities. The 7(k) exemption applies to employees who are trainees or on probationary status. The exemption, however, does not does not apply to firefighters who work for a department other than an organized fire department or fire protection district. Ball v. District of Columbia, 795 F. Supp. 461 (D.D.C. 1992).

B. Status Of Paramedics/EMS Personnel And The 7(k) Exemption

Whether or not paramedics and other EMS personnel within a fire department meet the four conditions of fire protection employees has been one of the most difficult areas concerning 7(k) coverage. Lower courts have reached very different conclusions and the Supreme Court has failed to accept review in order to clarify this area. Under the regulations, ambulance and rescue personnel qualify for the 7(k) exception if their services are substantially related to law enforcement or fire fighting activities. 29 C.F.R. § 553.215(a). In 1999, Congress sought to give public employers guidance in addition to the regulation on the issue by amending the definitions of the statute to include the following definition:

Employees in fire protection activities: means an employee, including a fire fighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazard material worker, who:

  1. is trained in fire suppression;
  2. has the legal authority and responsibility to engage in fire suppression;
  3. is employed by a fire department of a municipality, county, fire district, or state; and
  4. is engaged in the prevention, control, and extinguishment of fires or responds to emergency situations where life, property or the environment is at risk.

29 U.S.C. § 203(y). Thus, under this revised definition, certain requirements are clear. First, a paramedic who is not trained at all in fire suppression will not be eligible for the 7(k) exemption. Second, the paramedic must be employed by a fire department and not a hospital or other form of municipal corporation.

The most difficult issue, however, involves the second factor listed above, whether the paramedic has the "legal authority and responsibility" to engage in fire suppression. On this issue, the courts have reached mixed results concerning the intent of the "legal authority and responsibility" requirement. Most recently, on August 22, 2005, the Ninth Circuit addressed this issue in Cleveland v. City of Los Angeles, 402 F.3d 981 (9th Cir. 2005). In Cleveland, the Ninth Circuit Court of Appeals reviewed whether dual-function paramedics – cross-trained firefighter/paramedics – working for the City of Los Angeles were covered by the new definition for purposes of the 7(k) exemption. The dual-function paramedics were fully trained and certified in both fire suppression skills and advanced life support skills. The City of Los Angeles also employed single-function paramedics who were not trained in fire suppression. The Ninth Circuit rejected the application of the new definition to the dual-function paramedics because there was no evidence that any dual-function paramedic had ever been ordered to perform fire suppression. The Court noted that paramedic ambulances were not designed to provide fire protection and were rarely dispatched to fire scenes. The Court applied a dictionary definition of responsibility ("a duty, obligation or burden") and found it inadequate that dual-function paramedics might theoretically be called on to engage in fire suppression at some point.

This same result was reached earlier this year by a federal district court in Texas. Chavez v. City of Katy, 2005 WL 1657037 (S.D. Tex., July 14, 2005). In that case, the EMS Director for the city testified that paramedics did not have the authority to engage in fire suppression activities. Moreover, paramedics were only sent to fire scenes to treat injured people. Supervisors had told the paramedics that they were only to engage in emergency medical services -- not fire suppression work.

In contrast, the federal district court for the Northern District of California (within the Ninth Circuit) applied the new definition to the firefighter/paramedics in the City and County of San Francisco. Weaver v. City and County of San Francisco, 2004 WL 422626 (N.D. Calif. 2004). Unlike the approach of the Ninth Circuit in the Cleveland case, the district court in California looked at the legislative intent behind the 1999 amendment and concluded that "responsibility" means that an employee has a responsibility to engage in fire suppression if it is part of the job to do so when requested by the employer. Different from the Cleveland case, all employees in Weaver were assigned full fire suppression protective gear.

Washington is within the Ninth Circuit, and Washington employers will need to address the issues identified in the Cleveland case. However, because courts appear to review the facts of each case independently, there are a few steps that an employer can take to increase the chance of such employees meeting the 7(k) exemption.

3. Practical Steps To Increase The Chance Of The 7(k) Exemption Applying

Based on the few cases that have interpreted the 1999 amendment, there are certain practical steps that employers should take to increase the chance of their paramedic and EMS personnel within the fire department meeting the 7(k) exemption.

  • At a minimum it is imperative that all paramedics be completely trained in fire suppression.
  • It is critical that documentation such as job descriptions fully reflect the obligations of firefighter/paramedics to engage in fire suppression.
  • Employer representatives should not make statements that paramedics are precluded from engaging in fire suppression.
  • The more paramedics actually engage in fire suppression or joint training at a minimum with regular firefighters, the better the employer’s case for exemption.

1Incidental non-fire fighting functions such as housekeeping, equipment maintenance, lecturing, attending community fire drills and inspecting homes and schools for fire hazards are included within the definition of "fire protection activities." 29 C.F.R. § 553.210.

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Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More.
Janice Corbin is a partner with Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of human resources experience with the Seattle Police Department and the International Harvester Truck Company and has worked in the law enforcement field for over 22 years. More.

Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More.
Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More.

*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.