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<br />S553.1 06( d)
<br />
<br />(d) Individuals do not lose their vol-
<br />unteer status if they are provided rea-
<br />sonable benefits by a pUblic agency for
<br />whom they perform volunteer serv-
<br />ices. Benefits would be considered rea-
<br />sonable, for example, when they in-
<br />volve inclusion of individual volun-
<br />teers in group insurance plans (such as
<br />liability, health, life, dis~bUity, work-
<br />ers' compensation) or pension plans or
<br />"length of service" awards, commonly
<br />or traditionally provided to volunteers
<br />of State and local government agen-
<br />cies, which meet the additional test in
<br />paragraph (n of this section.
<br />(e) Individuals do not lose their-vol.
<br />unteer status if they receive a nominal
<br />fee from a public agency. A nominal
<br />fee is not a substitute for compensa-
<br />tion and must not be tied to productiv-
<br />ity. However, this does not preclUde
<br />the payment of a nominal amount on
<br />a "per call" or similar basis to volun-
<br />teer firefighters. The fOllOWing factors
<br />will be among those examined in de-
<br />termining whether a given amount is
<br />nominal: The distance traveled and
<br />the time and effort expended by the
<br />volunteer; whether the volunteer has
<br />agreed to be available around-the-
<br />clock or only during certain specified
<br />time periods; and whether the volun-
<br />teer provides services as needed or
<br />throughout the year. An individual
<br />who volunteers to provide periodic
<br />services on a year-round basis may re-
<br />ceive a nominal monthly or annual sti-
<br />pend or fee without losing volunteer
<br />status.
<br />(n Whether the furnishing of ex-
<br />penses, benefits, or fees would result
<br />in individuals' losing their status as
<br />volunteers under the FLSA can only
<br />be determined by examining the total
<br />amount of payments made (expenses,
<br />benefits, fees) in the context of the
<br />economic realities of the particular sit-
<br />uation.
<br />
<br />Subpart C-Fire Protedion and Law
<br />Enforcement Employees of Public
<br />Agencies .
<br />
<br />GENERAL PRINCIPLES
<br />
<br />11 553.200 Statutory provisions: section
<br />13(b)(20).
<br />
<br />(a) Section 13(b)(20) of the FLSA
<br />provides a complete overtime pay ex-
<br />emption for "any employee of a public
<br />agency who in any workweek is em-
<br />ployed in fire protection activities or
<br />any employee of a public agency who
<br />in any workweek is employed in law
<br />enforcement activities <including secu-
<br />rity personnel in correctional institu-
<br />tions), if the public agency employs
<br />during the workweek less than 5 em-
<br />ployees in fire protection or law en-
<br />forcement activities, as the case may
<br />be."
<br />(b) In determining whether a public
<br />agency qualifies for the section
<br />13(b)(20) exemption, the fire protec-
<br />tion and law enforcement activities are
<br />considered separately. Thus, if a
<br />public agency employs less than five
<br />employees in fire protection activities,
<br />but five or more employees in law en-
<br />
<br />forcement activities (including securi-
<br />ty personnel in a correctional institu-
<br />tion), it may c1a.im the exemption for
<br />the fire protection employees but not
<br />for the law enforcement employees.
<br />No distinction is made between full-
<br />time and part-time employees, or be-
<br />tween employees on duty and employ-
<br />ees on leave status, and all such cate-
<br />gories must be counted in determining
<br />whether the exemption applies. Indi-
<br />viduals who are not considered "em-
<br />ployees" for purposes of the FLSA by
<br />virtue of section 3(e) of the Act (in-
<br />cluding persons who are "volunteers"
<br />within the meaning of ~ 553.101, and
<br />"elected officials and their appoint-
<br />ees" within the meaning of ~ 553.11)
<br />are not counted in determining wheth-
<br />er the section 13(b)(20) exemption ap-
<br />plies.
<br />(c) The section 13(b)(20) exemption
<br />applies on a workweek basis. It is
<br />therefore possible that employees may
<br />be subject to maximum hours stand-
<br />ard in certain workweeks, but not in
<br />others. In those workweeks in whiCh
<br />the section 13(b)(20) exemption does
<br />not apply, the pUblic agency is entitled
<br />to utilize the section 7(k) exemption
<br />which is explained below in ~ 553.201.
<br />
<br />[52 FR 2032, Jan. 16,1987; 52 FR 2648, Jan.
<br />23, 1987]
<br />
<br />Ii 553.201 Statutory provisions: section
<br />7(k).
<br />
<br />(a) Section 7(k) of the Act provides a
<br />partial overtime pay exemption for
<br />fire protection and law enforcement
<br />personnel (including security person-
<br />nel in correctional institutions) who
<br />are employed by public agencies on a
<br />work period basis. This section of the
<br />Act formerly permitted public agen-
<br />cies to pay overtime compensation to
<br />such employees in work periods of 28
<br />consecutive days only after 216 hours
<br />of work. As further set forth in
<br />9 553.230 of this part, the 216-hour
<br />standard has been replaced, pursuant
<br />to the study mandated by the statute,
<br />by 212 hours for fire protection em-
<br />ployees and 171 hours for law enforce-
<br />ment employees. In the case of such
<br />employees who have a work period of
<br />at least 7 but less than 28 consecutive
<br />days, overtime compensation is re-
<br />quired when the ratio of the number
<br />of hours worked to the number of
<br />days in the work period exceeds the
<br />ratio of 212 (or 171) hours to 28 days.
<br />(b) As specified in U 553.20 through
<br />553.28 of SUbpart A, workers employed
<br />under section 7(k) may, under certain
<br />conditions, be compensated for over-
<br />time hours worked with compensatory
<br />time off rather than immediate over-
<br />time premium pay.
<br />
<br />II 553.202 Limitations.
<br />The application of sections 13(b)(20J
<br />and 7(k), by their terms, is limited to
<br />pUblic agencies, and does not apply to
<br />any private organization engaged in
<br />furnishing fire protection or law en-
<br />
<br />8
<br />
<br />forcement services. This is so even if
<br />the services are provided under con.
<br />tract with a pUblic agency.
<br />
<br />ExEMPTION REQUIREMENTS
<br />
<br />11553.210 Fire protection activities.
<br />
<br />(a) As used in sections 7(k) and
<br />13(b)(20) of the Act, the term "any
<br />employee. . . in fire protection acti\";-
<br />ties" refers to any employee (1) who is
<br />employed by an organized fire depart-
<br />ment or fire protection distric~: (:?)
<br />who has been trained to the extent re-
<br />Quired by State statute or local ordi-
<br />nance; (3) who has the legal authOrity
<br />and responsib1l1ty to engage in th e
<br />prevention, control or extinguishment
<br />of a fire of any type; and (4) who P'~;-
<br />forms activities which are required
<br />for, and directly concerned witll, th2
<br />prevention, control or extinguish_tUG; t
<br />of fires. including such incidental non-
<br />fire fighting functions as housekeep-
<br />ing, equipment maintenance, k~tur-
<br />ing, attending community fire drilL,
<br />and inspecting homes and schoo;, for
<br />fire hazards. The term would include
<br />all such employees. regardless of thei:-
<br />status as "trainee," ..probationar:;.... or
<br />"permanent," or of their particular
<br />speCialty or job title (e.g., firefighter.
<br />engineer, hose or ladder operator. fire
<br />specialist, fire inspector, lieutenant,
<br />captain, inspector, fire marshal, bat-
<br />talion chief, deputy chief, or ehlen,
<br />and regardless of their assignment to
<br />support activities of the type described
<br />in paragraph (c) of this section,
<br />whether or not such assignment is for
<br />training or familiartzationpurposes, or
<br />for reasons of illness, injury or infirmi-
<br />ty. The term would also include rescue
<br />and ambulance service personnel if
<br />such personnel form an !.ntegral part
<br />of the public agency's fire protection
<br />activities. See ~ 553.215.
<br />(b) The term "any employee in fire
<br />protection activities" also refers to em-
<br />ployees who work for forest conserva-
<br />tion agencies or other public agencies
<br />charged with forest fire fighting re-
<br />sponsibilities, and who direct or
<br />engage in (1) fire spotting or lookout
<br />activities, or (2) fighting fires on the
<br />fire line or from aircraft or (3) operat-
<br />ing tank trucks, bulldozers and trac-
<br />tors for the purpose of Clearing fire
<br />breaks. The term includes all persons
<br />so engaged, regardless of their status
<br />as full time or part time agency em-
<br />ployees or as temporary or casual
<br />workers employed for a particular fire
<br />or for perIods of high fire danger, in-
<br />cluding those who have had no prior
<br />training. It does not include such
<br />agency employees as maintenance and
<br />office personnel who do not fight fires
<br />on a regular basis. It may include such
<br />employees dUring emergency situa:
<br />tions when they are called upon to
<br />spend SUbstantially all <i.e., 80 percent
<br />or more) of their time during the ap-
<br />plicable work periOd in one or more of
<br />the activities described in paragraphs
<br />(b)(1), (2) and (3) of this section. Addi-
<br />tionally, for those persons who actual-
<br />ly engage in those fire protection ac-
<br />tivities, the simultaneous performance
<br />of such related functions as house-
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