Yeah, but do I get overtime after 40 hours?

There are some FLSA issues, which are peculiar to EMTs and paramedics, and especially those who work for public-sector employers. Some government employers compensate their EMS employees under the special "§7(k)" work period rules, which more typically can apply to firefighters (and police officers). In these situations, EMS employees are not paid overtime until they meet a "threshold" larger than the normal 40-hour work week. This is sometimes legally permissible, and sometimes not. The subject has been addressed in several court decisions and has provoked a recent (December, 1999) amendment to the FLSA statute.

The §7(k) pay rules can apply to "employees engaged in fire protection activities." These are now defined in the statute (§203[y]) as follows: `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 medical situations where life, property, or the environment is at risk.

Thus, to qualify for §7(k) pay as a fire protection employee under this statutory definition, an EMS employee must (a) work for a (government) fire department, (b) be trained in fire suppression, (c) have the legal authority to fight fires, (d) have the responsibility to fight fires, (e) and either actually engage in fire suppression work or non-fire related emergency responses.

How this new statute will be interpreted by the courts is as yet unknown. For example, the statute does not specify what "trained in fire suppression" means. Nor does the statute specify what is meant by "responsibility to engage in fire suppression." However, it is likely that "real" fire fighters will be qualified for 7(k) scheduling and pay as employees in fire protection even if their normal jobs are to provide medical services and not fire suppression. It is also fair to predict that "single function" EMS workers (who are not trained in fire suppression) and who work for fire departments, may not be scheduled or paid as fire protection employees under §7(k).

Also unresolved is whether §7(k) can ever be applied to government EMS employees who do not work for fire departments. The new statute limits application of the "fire protection" standards of §7(k) to employees of fire departments. However, §7(k) may also apply to "employees engaged in law enforcement activities." Several courts have historically implied or ruled that activities such as responding to vehicle accidents when there is no danger of fire is a "law enforcement" activity, and the courts have therefore implied that some government EMS employees might qualify under the "law enforcement" section of §7(k) depending on what kind of calls they actually and typically responded to.

The effect of this new statute on work performed before it became a law is also as yet undetermined. Before this statute was passed, the courts had evaluated whether EMS workers were qualified for 7(k) treatment on a case by case basis. The various decisions had not agreed on a consistent test. In most cases the courts had held that paramedics who were not also fire fighters were 40 hour per week employees, but the courts had not agreed about whether firefighters whose jobs were medical were qualified as "employees in fire protection" under §7(k). The new statute probably does not modify these decisions with regard to non-firefighter EMS employees, however it is unknown at this point whether the new statute will apply "retrospectively" to work performed by firefighter EMS employees before the effective date of the new definitional section of the law.