FLSA2006-20 — Dual-function firefighter/paramedics and section 7(k)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

June 1, 2006 FLSA2006-20

Dear
Name*,

This is in response to your letter requesting an opinion regarding whether dual-function
firefighter/paramedics employed by a Fire Department qualify for the partial overtime exemption
under section 7(k) of the Fair Labor Standards Act (FLSA) (copy enclosed). You submitted your
request on behalf of the public sector agencies throughout the country that your entity represents,
including cities and counties that operate integrated fire suppression and emergency response
departments. Based on a review of the information provided, it is our opinion that the dual-function
firefighter/paramedics described in your letter qualify for the partial overtime exemption.

In your example, you state that dual-function firefighter/paramedics are the only type of paramedic
currently hired. There are no new single-function paramedic hires. Dual-function
firefighter/paramedics are hired as firefighters and are required to complete the Fire Academy, a
seventeen-week fire suppression training program. Firefighters chosen to become paramedics
receive additional training in emergency medical services and paramedic certification. Dual-
function firefighter/paramedics are fully trained in fire suppression skills, search and rescue
operations, fire prevention, and public safety. They regularly receive fire suppression training and
present fire prevention awareness programs. Dual-function firefighter/paramedics may be assigned
to fire suppression or paramedic positions on rescue ambulances, and you indicate that in one-third
of the stations they routinely rotate between these positions. Dual-function firefighter/paramedics
assigned to rescue ambulances are issued breathing apparatus, “turnout” gear, and assigned
personal protective equipment that they are required to carry in rescue ambulances at all times.

Dual-function firefighter/paramedics are dispatched to a variety of incidents at which they are
expected to perform fire suppression services and medical services, as needed. Rescue
ambulances are dispatched to all structure fires and reported smoke incidents, even if there is no
express need for advanced life support medical services. To the extent that there are medical
emergencies, dual-function firefighter/paramedics will provide emergency medical services. In
other instances, the dual-function firefighter/paramedics must perform fire suppression activities
when so directed by the Incident Commander. In fact, you state that under certain circumstances, a
dual-function firefighter/paramedic may serve as an Incident Commander in charge of the fire
scene until relieved by a Captain or Battalion Chief. They perform the same fire attack, ventilation,
evacuation, and exposure protection as single-function firefighters and are routinely called upon to
perform fire suppression tasks alongside single-function firefighters.

Section 7(k) of the FLSA provides a partial overtime pay exemption for employees employed by a
public agency in fire protection or law enforcement activities. Under this provision, a public agency
employer may establish a work period of 7 to 28 consecutive days for determining overtime
compensation owed to individuals employed in fire protection or law enforcement activities. The
maximum hour standard for fire protection personnel ranges from 53 hours worked in a 7-day
period to 212 hours worked in a 28-day period. See 29 C.F.R. § 553.230(c) (copy enclosed).

On December 9, 1999, the FLSA was amended to add section 3(y) (copy enclosed), which clarifies
the definition of “fire protection activities” for section 7(k) partial overtime exemption purposes.
1

1
It is the Wage and Hour Division’s view that section 3(y) supersedes the definition of employee engaged in
fire protection activities contained in 29 C.F.R. § 553.210(a) and therefore renders analysis under that
regulatory provision unnecessary in this case.
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

Section 3(y) states:

“Employee in fire protection activities” means an employee, including a firefighter,
paramedic, emergency medical technician, rescue worker, ambulance personnel, or
hazardous materials worker, who —

(1) is trained in fire suppression, has the legal authority and responsibility to engage in
fire suppression, and is employed by a fire department of a municipality, county, fire
district, or State; and

(2) is engaged in the prevention, control, and extinguishment of fires or response to
emergency situations where life, property, or the environment is at risk.

Based on your description of the facts, there is no question that the dual-function
firefighter/paramedics described in your letter are trained in and have the legal authority to engage
in fire suppression. Further, according to your letter, they are employed by a fire department of a
municipality, county, fire district, or state. With respect to the issue whether the dual-function
firefighters/paramedics have the responsibility to engage in fire suppression, it is apparent from the
facts presented that the dual-function firefighter/paramedics clearly have a responsibility to engage
in fire suppression.

Recent guidance provided by the U.S. Court of Appeals for the Ninth Circuit supports the
conclusion that the dual-function firefighter/paramedics you describe have firefighting
responsibilities. In Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005), cert. denied 126
S. Ct. 1344 (2006), the Ninth Circuit stated that in order for dual-function firefighter/paramedics to
have sufficient fire suppression responsibility under section 3(y), they must “have some real
obligation or duty” to engage in fire suppression. Id. at 990. Unlike the dual-function
firefighter/paramedics described in your letter, the dual-function firefighter/paramedics at issue in
Cleveland did not, according to the Court, carry fire suppression breathing equipment in their
paramedic ambulances, were not expected to wear fire protection gear at fire scenes, did not assist
with any fire suppression, and were dispatched only to perform medical services. The court looked
at six factors in determining that the dual-function firefighter/paramedics in Cleveland did not have
“some real obligation or duty” to engage in fire suppression. Using these same factors, it is
apparent that the dual-function firefighter/paramedics described in your letter have sufficient fire
suppression responsibility under section 3(y): 1) they carry firefighting turnout gear and breathing
apparatus; 2) dispatchers assume that at least one dual-function firefighter/paramedic is in each
ambulance dispatched to a call; 3) paramedic ambulances are always dispatched to fire scenes,
and personnel must notify the Incident Commander at the scene whether they are dual-function
firefighter/paramedics or single-function paramedics; 4) dual-function firefighter/paramedics are
always expected to wear fire protective gear at a fire suppression scene (including wearing the
same color helmet as other firefighters so the Incident Commander can quickly assess the fire
suppression resources available); 5) to the extent medical emergencies exist, and to utilize their
paramedic training, they are expected to provide emergency medical services as their primary
responsibility, but also routinely perform fire suppression duties alongside their firefighting
colleagues when not needed for medical care; and 6) they are routinely ordered to perform fire
suppression duties, to attend fire suppression training, and to present fire prevention awareness
programs. The dual-function firefighter/paramedics you describe therefore meet the Ninth Circuit’s
test for “responsibility” to engage in fire prevention, control, and extinguishment. Id.

Finally, section 3(y) also requires that employees be engaged in either fire prevention and
suppression or response to emergencies. The dual-function firefighter/paramedics you describe
appear to engage in both fire prevention, control, and suppression and respond to emergencies
where life, property, or the environment is at risk.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

In this case, the dual-function firefighter/paramedics you describe are employed in fire protection
activities under section 3(y) of the FLSA. They are trained in fire suppression, have the authority
and responsibility to engage in fire suppression, and are engaged in fire suppression or response
to emergencies. Therefore, the dual-function firefighter/paramedics described above qualify for the
partial overtime exemption under section 7(k) of the FLSA because they are employed by a public
agency in fire protection activities.

This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented
that your organization is not a party to pending private litigation concerning the issues addressed
herein. You have also represented that this opinion is not sought in connection with an
investigation or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alfred B. Robinson, Jr.
Acting Administrator

Enclosures:
Sections 3(y) and 7(k) of the FLSA
29 C.F.R. § 553.230

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7)
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