Appendix — National League of Cities v. Usery
Supreme Court brief1976
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APPENDIX
Volume II — pages 311-653 | MAR
IN THE yICHerl 2°:
Supreme Court of the Anited States
OCTOBER TERM, 1974
Nos. 74-878
and 74-879
NATIONAL LEAGUE OF CITIES, et al. (in No. 74-878),
and STATE OF CALIFORNIA (in No. 74-879),
Appellants,
HON. PETER J. BRENNAN, SECRETARY
OF LABOR OF THE UNITED STATES,
Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED JANUARY 17, 1975
PROBABLE JURISDICTION NOTED JANUARY 27, 1975
a
Washington, 0.C. e CLB PUBLISHERS e LAW PRINTING CO. @ (202) 393-0625
(i)
Volume II
Page
Index to Exhibits To Depositions of Allen E.
Pritchard, Jr. and Charles A. Byrley ......... E(i)
Defendant’s Exhibits to Depositions of Allen E.
Pritchard, Jr., and Charles A. Byrley,
PE ecudéueseeewtend vs oue 311
Plaintiffs’ Exhibit to Depositions of Allen E.
Pritchard, Jr., and Charles A. Byrley,
Dt cdenunkes Gunes este aenee Owes one cbs cb 588
Joint Exhibit to Depositions of Allen E.
Pritchard, Jr., and Charles A. Byrley,
No. 4(c) (39 Fed. Reg. 44142) .............. 591
Affidavit of Jack I. Karlin, Dec. 27, 1974 (in
support of Defendant’s Motion to Dismiss) ..... 621
Letter, William F. Danielson to Charles S. Rhyne,
cise kates oe ee idle els cead 625
Supplementary Affidavit of Jack I. Karlin,
OS EE eee ee 639
Opinion and Order of District Court below,
dismissing Complaint and denying
Preliminary Injunction, Dec. 31,1974 ........ 643
E(i)
INDEX TO
EXHIBITS TO DEPOSITIONS OF ALLEN E.
PRITCHARD, JR., AND CHARLES A. BYRLEY
Defendant’s Exhibits to Deposition Page
of Allen E. Pritchard, Jr. and
Charles A. Byrley, Nos. 1-36, 38-48
Defendant’s Exhibit No. |:
Letter from Nashville, Tenn., 11-4-74........ 311
Defendant’s Exhibit No. 2:
Letter from Nashville, Tenn., 11-25-74 ....... 312
Defendant’s Exhibit No. 3:
Management Information Service Study, June
1974, [Absent cover letter from Carol
FEES ee a 314
Defendant’s Exhibit No. 4:
Letter from D. Slater, National League
of Cities to W. Landis, Wage and Hour Division,
Department of Labor, 7-5-74 ............. 355
Defendant’s Exhibit No. 5:
Letter from Lompoc, 9-27-74 ............. 429
Defendant’s Exhibit No. 6:
Letter from Cape Girardeau, Mo., of
Noncompliance to W&H ............0005. 440
Defendant’s Exhibit No. 7:
Complaint and Letter to Cape Girardeau,
Mo. from Regional Solicitor W&H .......... 442
Defendant’s Exhibit No. 8:
Newspaper article: Cape Girardeau,
Southeast Missourian, 11-17-74 ............ 447
E(ii)
Defendant’s Exhibit No. 9:
Memoranda from Cape
id ea wee
Defendant’s Exhibit No. 10:
Letter from Salt Lake City, Utah
Ere re
Defendant’s Exhibit No. 11:
Letter from Salt Lake City, Utah
EE ee ee er ee a ee ee
Defendant’s Exhibit No. 12:
Letter from Attorney General of
ee eee
Defendant’s Exhibit No. 13:
Memo from Los Angeles, Cal., 1 1-25-74
Defendant’s Exhibit No. 14:
Letter from Sacramento, Cal., 1 1-22-74
Defendant’s Exhibit No. 15:
Letter from Pasadena, Cal., 12-13-74 .....
Defendant’s Exhibit No. 16:
Affidavit from San Buenaventura, Cal.
Defendant’s Exhibit No. 17:
Affidavit from Newark, Cal. ............
Defendant’s Exhibit No. 18:
Letter from Newark, Cal., 9-20-74 .......
Defendant’s Exhibit No. 19:
Letter from Montebello, Cal., 11-22-74 ....
Defendant’s Exhibit No. 20:
Letter from Montebello, Cal., 10-3-74 .....
Defendant’s Exhibit No. 21:
Letter from Menlo Park, Cal., 104-74 .....
Defendant’s Exhibit No. 22:
Letter from Menlo Park, Cal., 11-21-74 ....
Defendant’s Exhibit No. 23:
Letter from Inglewood, Cal., 10-44-74 ......
E(iii)
Page
Defendant’s Exhibit No. 24:
Letter from Clovis, Cal., 10-9-74 ......... 524
Defendant’s Exhibit No. 25: :
Letter from Coronado, Cal., 104-74 ...... 527
Defendant’s Exhibit No. 26:
Letter from Sumter, S.C., 9-19-74 ........ 530
Defendant’s Exhibit No. 27:
Letter from Lodi, Cal., 9-26-74 .......... 537
Defendant’s Exhibit No. 28:
Letter from Downey, Cal., 10-8-74 ....... 542
Defendant’s Exhibit No. 29:
Letter from Randolph, N.J., 104-74 ...... 546
Defendant’s Exhibit No. 30:
Letter from Phoenix, Ariz., 9-20-74 ...... 549
Defendant’s Exhibit No. 31:
Letter from Tulsa, Okla., 9-17-74 ........ 551
Defendant’s Exhibit No. 32:
Letter from Sunnyvale, Cal., 10-7-74 ..... 554
Defendant’s Exhibit No. 33:
Letter from Corcoran, Cal., 9-25-74 ...... 556
Defendant’s Exhibit No. 34:
Letter from Columbia, S.C., 11-27-74 ..... 560
Defendant’s Exhibit No. 35:
Letter from Richmond, Va., 12-5-74 ...... 562
Defendant’s Exhibit No. 36:
Letter from Reidsville, N.C., 12-2-74 ..... 565
Defendant’s Exhibit No. 38:
Charles Byrley Biographical Sketch ....... 566
Defendant’s Exhibit No. 39:
Letter from Wyoming, 12-20-74 ......... 568
Defendant’s Exhibit No. 40:
Letter from Maryland, 12-20-74 ......... 570
Defendant’s Exhibit No. 41:
Letter from Missouri, 10-28-74 .......... 571
Efiv)
Defendant’s Exhibit No. 42:
Letter from Arkansas, 11-7-74 ..........
Defendant’s Exhibit No. 43:
Letter from Florida, 12-20-74 ...........
Defendant’s Exhibit No. 44:
Letter from Iowa, 12-19-74 .............
Defendant’s Exhibit No. 45:
Letter from Vermont, 12-20-74 .........
Defendant’s Exhibit No. 46:
Letter from Washington, 11-15-74 .......
Defendant’s Exhibit No, 47:
Letter from Utah, 12-23-74 .............
Defendant’s Exhibit No. 48:
Letter from California, 12-23-74 .........
Plaintiffs’ Exhibit to Depositions of
Allen E. Pritchard, Jr., and Charles A.
Byrley
Plaintiffs’ Exhibit No. 1:
Allen E. Pritchard, Jr.,
SS eee
Joint Exhibit to Depositions of Allen
E. Pritchard, Jr., and Charles A. Byrley
Joint Exhibit No. 4(c):
Regulations covering Employees
of Public Agencies Engaged in
Fire Protection or Law Enforcement
Activities
"FS eece@eeePteeeeee =e Ss SS Se eee
311
Defendant's Exhibit No. 1
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY
DEPARTMENT OF LAW
204 COURTHOUSE
NASHVILLE, TENNESSEE 37201
November 4, 1974
Mr. Charles S. Rhyne
General Counsel
National Institute of Municipal Law Officers
839 - 17th Street, N. W.
Washington, D. C. 20006
Dear Mr. Rhyne:
This acknowledges receipt of your letter of October
15.
You asked if the Metropolitan Government would
experience a large increase in costs for Firemen and
Policemen due to the Fair Labor Standards Act. From
the best estimates available, we have concluded that the
annual costs in the early stages of the implementation of
the Fair Labor Standards Act for Policemen and Firemen
would amount to approximately $938,000.00. This
computation is based on no increase in the present
compensation. Obviously, the implementation of the Fair
Labor Standards Act is going to have a serious financial
impact on the Metropolitan Government of Nashville.
If we can be of further service to you, please advise.
Very truly yours,
/s/ Milton H. Sitton
Milton H. Sitton
Director of Law
312
Defendant's Exhibit No. 2
METROPOLITAN GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY
DEPARTMENT OF LAW
204 COURTHOUSE
NASHVILLE, TENNESSEE 37201
November 25, 1974
Mr. Charles S. Rhyne
Rhyne & Rhyne
400 Hill Building
Washington, D.C. 20006
Dear Mr. Rhyne:
This refers to your letter of November 22 in which you
enclosed rough drafts of the proposed complaint and
brief to be filed in the U.S. District Court for the District
of Columbia contesting the extension of the Fair Labor
Standards Acts to governmental functions.
We note that you have shown Metropolitan Nashville,
Tennessee; the correct legal name is The Metropolitan
Government of Nashville and Davidson County,
Tennessee. Please correct on the final complaint.
As you know, the Department of Labor has proposed
definitions and rules for determing hours worked and
what constitutes a work period with respect to employees
of public agencies engaged in fire protection or law
enforcement activities.
We have previously furnished you with an estimate of
the financial impact that the Act will impose upon the
operational costs of our Fire and Police Departments.
313
The proposed Rules, if enacted, would have a further
effect on our Police Department and could affect the cost
of operating our Fire protection. Section 553.8 of the
proposed Rules, as we interpret same, would require the
payment of overtime where a fireman or policeman is
engaged by another public agency of some other state or
political subdivision, or by a private employer and the
work performed by the employee is not completely
disassociated from his employment with the Metropolitan
Government; for example, a policeman who is required to
wear his uniform and performs services which would
deter the commission of a crime; i.e., security guard at a
bank. We estimate that 40% of our policemen work in
positions requiring police authority. These police officers
average at least 16 hours a week in this employment. If
the proposed Rules become effective and we have
interpreted the proposal correctly, it is possible that the
Metropolitan Government would have to pay overtime on
16 hours a week. We estimate that this would cost us in
round figures $19,000.00 per week, or a total of
approximately $1,000,000.00 per year. This would
seriously place a burden on the property taxpayers and
might require the curtailment of some needed services.
Mr. Rick Bacigalupo asked for the above information.
This, of course, is predicated on the approval of the
proposed Rules.
Sincerely,
/s/ Edward W. McCabe
Edward W. McCabe
Deputy Director of Law
314
Defendant’s Exhibit No. 3
cv" Management
Association
Information
Service
SPECIAL
REPORT
JUNE 1974
The fair labor standards act:
effects on fire overtime costs
& staffing
Effective January 1, 1975, the federal
Fair Labor Standards Act will apply to
fire department and police department
overtime practices. Many cities now are
preparing budgets for the fiscal year
July 1, 1974, through June 30, 1975. Also,
many cities now are in the process of
negotiating with representatives of fire-
fighter or police groups. The new federal
law may have very significant effects on
both the budgeting plans of cities and
negotiations of city management with
police and fire groups.
Copyright 1974 by the International City
Management Association.
i
315
This special MIS report discusses problems
and possible solutions in planning for the
January 1, 1975, changes required by the
Fair Labor Standards Act.
GOVERNMENT ADDED TO FLSA COVERAGE
Congress enacted a compromise version of
the Fair Labor Standards Act placing
federal, state, and local governments
under the act on March 28, 1974. The
President signed the bill on April 8,
1974, and it became effective May 1, 1974.
Some changes in the new law will affect
cities on January 1, 1975, and in subse-
quent years when the overtime provisions
for fire and police take effect.
The Fair Labor Standards Act provides that
the U.S. Secretary of Labor will issue a
new regulation that will identify the
policies and practices of the Department
of Labor in regulating minimum wage and
overtime provisions of the act for police
and fire departments. It is not likely
that the regulation will be issued by the
Secretary until later in the summer of
1974 and almost certainly after July l,
1974. As almost all cities that use a
July 1 fiscal year must have completed
budget preparations and negotiations with
organized employee groups by that date,
and as cities will not be able to know
exactly what the Department of Labor
regulations will be prior to July 1, this
report is issued to help local govern-
ment administrators plan in an uncertain
area for the coming year. Local officials
are specifically cautioned that the infor-
316
mation in this report may subsequently
turn out to be inconsistent with the
regulations to be issued later this year.
When the Department of Labor regulation is
issued, managers should obtain copies
immediately and review local policy in
comparison with the final regulation to
make any additional policy changes
necessary.
FIRE SUPPRESSION OVERTIME PRACTICES
AND THE FLSA LAW
Effective January 1, 1975, fire overtime
hours are mandated by federal law when-
ever hours on duty exceed an average of
60 hours per week, or 240 hours in 28
days, or any proportionate ratio of hours
to days between 7 days and 28 days. Many
cities in the United States presently
have fire duty schedules averaging more
than 60 hours per week. Any city will be
free to continue to schedule firefighters
for hours longer than an average of 60
per week. However, each such city will be
required to pay overtime at time-and-one-
half for hours worked over the 60 hours
per week average.
A major unknown is whether, in calculating
overtime hours, the Department of Labor
will grant an exemption for sleeping and/
or eating time for part of the hours
spent in a fire duty period. Previous
practice by the department has permitted
an exemption of up to eight hours for
sleeping time and additional hours for
bona fide meal times which, if applied
RI ORT AWN ee er er eT SAI Sam
317
in the fire service, could have the
possible effect of exempting up to ll
hours out of a 24-hour duty period for
the purpose of determining hours to be
included in overtime calculations. A
ruling by the Secretary of Labor re-
garding hours for which the minimum wage
must be paid, issued in May 1974, re-
quires that policemen and firefighters
who are required to be on duty for 24
hours or less will use the Wage and Hour
Division rule set forth in 29 C.F.R.
785.21. (This is the rule which previ-
ously applied to duty time of less than
24 hours.) Thus, for firemen with tours
of duty of 24 hours or less, no time may
be deducted for meals or sleeping. If
this rule is extended and made permanent
for calculations of overtime for firemen,
it then would not be possible to exempt
any sleeping or eating hours from over-
time calculations. This report is
written assuming the possibility that all
scheduled hours will be counted for pur-
poses of calculating overtime. Should
the Secretary of Labor's regulations per-
mit some exemptions for fire hours used
for eating and/or sleeping, cities will
have greater options in budgeting and
negotiating with employee groups.
1975 REQUIREMENTS FOR FIRE OVERTIME
Effective January 1, 1975, overtime pay-
ment will be required for work over 60
hours average per week, or 240 hours in
28 days, or any proportionate ratio. For
cities that use a 24-hour fire duty
period, a "10-14" fire duty period, or a
318
"9-15" fire duty period, there are only
two possible fire duty schedules between
7 and 28 days that are equivelent to an
average of exactly 60 hours per week. In
the examples listed, "X" equals a contin-
uous 24-hour fire duty period. Most often
a 24-hour fire duty period will begin at
8:00 a.m. and continue until 8:90 a.m.
the following morning. An "0" indicates
24-hours off duty:
Tive 24-Hour Fire Duty Periods in 14 Days
(60-Hour Average Fire Duty Week):
Ten 24-Hour Fire Duty Periods in 28 Days
(60-Hour Average Fire Duty Week):
These schedules would not necessarily be
the exact ones that would be placed into
effect by any given city. For example,
on the five 24-hour-periods-in-14 cycle,
it is not necessary to have five consec-
utive days off. On the ten 24-hour-
periods-in-28 cycle, it is not necessary
to have nine consecutive days off. How-
ever, normal scheduling of 24-hour fire
duty periods provides for a 24-hour
period off duty immediately following a
24-hour on-duty shift.
rane ane .
RE Biii de a Pe
Nb PRES TT CLIT LOTR
319
Many other options are possible in arran-
ging five 24-hour fire duty periods in
14 days or ten 24-hour fire duty periods
in 28 days. Two additional examples of
each are shown below.
Five 24-Hour Fire Duty Periods in 14 Days
(60-Hour Average Fire Duty Week):
XOXOXOOOXK O XK O0 QO O
Ten 24-Hour Fire Duty Periods in 28 Days
(60-Hour Average Fire Duty Week):
0000xX 0 xX 0 XX 0 X 0 0 O
Many combinations of on-duty and off-duty
shifts are possible. The city adminis-
trator and fire chief should carefully
structure the fire duty cycle to best
meet the city's particular needs.
AVOIDING UNNECESSARY FIRE OVERTIME
City councils and local administrators
no longer can afford the luxury of dele-
320
gating completely to fire departments
the determination of the fire duty cycle.
Any fire duty cycle less than seven days
or more than 28 days in length will cost
a city unnecessary overtime. For example,
some cities presently have a fire duty
cycle three days in length. This cycle
calls for 24 hours on duty and 48 hours
off duty prior to repeating. Even though
this cycle is equivalent to an average of
56 hours per week, a city that maintains
this particular cycle, beginning January
1, 1975, may be liable to pay unnecessary
overtime every third week, as follows:
Three-Day Fire Duty Cycle
Sun. Mon. Tues. Wed. Thur. Fri. Sat.
O O X O O xX O 48 hrs.
0 | x 0 o |x oo o |4g hrs.
x 0 oO Xx 0 o |X 72 hrs.
In this example, in the first two weeks
an individual firefighter would be on
duty 48 hours each week, but in the third
week he would be on duty for three 24-
hour periods for a total of 72 hours. In
that third week, the city would be liabe
to pay 12 hours of overtime at time-and-
one-half. This kind of unnecessary over-
time can be avoided by adopting a fire
duty cycle at least seven days in length
and not exceeding 28 days in length.
Specific examples of duty schedules that
can be adopted are listed in Table l.
321
THE "10-14"
Fire groups have been able to legislate in
some states the use of the 10-14 type of
fire duty scheduling. The 10-14 basically
is identical to a 24-hour period except
that it is broken into two parts. Typi-
cally, the "day shift" is ten hours in
length and most often begins at 8:00 a.m.
and ends at 6:00 p.m. The day shift
usually will include lunch, and usually
sleeping is not permitted on this shift.
The "night shift" is 14 hours in length,
usually from 6:00 p.m. to 8:00 a.m., and
includes dinner and sleeping time.
Scheduled fire department activities, such
as drills, are uncommon. Firefighters
of course are on call to answer an alarm
at any time throughout the day shift or
night shift.
The 10-14 fire duty schedule requires an
identical number of day shifts as night
shifts. Basically, a 10-hour day shift
and a 14-hour night shift are identical
to a 24-hour fire duty period in terms of
the amount of work-related hours and
standby time. Typically, on either a
24-hour fire duty period or a 10-14, there
is a maximum of eight hours of work-
related activity and a minimum of i6 hours
of standby time.
Examples of a 10-14 schedule that would
average 60 hours per week over a 14-day
or 28-day period are as follows:
D = day shift
(e.g., 8:00 a.m. to 6:00 p.m. -- 10 hours)
€T URE L°st OOOO00000X0X0X
€T UF 9°TS OOOO000XO0XOXOX €T
fT UE EC cv OOOOOOOXO0XO0X
ct Ut 9S OOOOOXOXOXOX cT
TT UF E 8°S# OOOOOOXOXOX TT
OT UFZ 9°EEt OOOO0000X0X
OT UF E 7°OS OOOOOXOXOX OT
6 UFZ €°le OOOOO0OXOX
6 UF € 9S OOOOXOXOX 6
cl g ur Zz 7% O0O0000X0X 8
LUE Z 87 0000 XOX L
@T2AQ Aang eATy ut (sinoy) 420M seTnpeyos Ang aaty @TNpeyos Aang
Ajng uo spotieg Aqjng eity eiTy ut
AInOH-4Z JO “ON aselsay sXeq JO ‘ON
$Z46T WOd SAINGAHOS ALNG Fuld
T ®TQPL
00 a.m. -- 14 hours)
322
00 p.m. to 8
(Text continued
N = night shift
(e.g., 6
O = off duty
9Z UT L €Z°S* ODDDDDDD00000KOXOXOXOKOXOX
9Z UT 8 69°TS QOO0O0O0DO0O00O0OKOXOXOXOXOXOXOX
9Z UT 6 cT’ss O000000000¥ ® “OXOXOXOXOXOXOX 97
$z ut 9 Z£°O" ODDO00DD0000000KOXOY.OXOXOX
SZ Ut Z 70°L9 OO0O0O0O0000000KOXOXOXOXOXOX
$Z Ut 8 9L°ES OOOD00D000KOXOXOXOXOXOXOX $z
9Z UT 9 00°24 O000000000000KOXOXOXOXOX
9Z UT L 00°64 OODODOD000000KOXOXOXOXOXOX
9Z UT 8 00°9S OOOO0ODOOOKOXOXOXOXOXOXOX 97
wy
S €Z ut 9 78°€% OOODO0DDO000000KOXOXOXOXOX
€Z Ut LZ 8T°TS ODOOOOOOOOXOXOXOXOXOXOX
€Z Ut 8 €%°ss OOO0O0000OXOXOXOXOXOXOXOX €Z
ZZ ut 9 18°S* OOO0D0000UOOKOXOXOKOXOX
7Z Ut Z Sees OOO0O00000OKOXOXOXOXOXOX 7Z
Tz ur ¢ 0°0% O00000000000KOXOXOXOX
TZ ut 9 0°8 O000000000KOXOXOXOXOX
TZ ut Z 0°9¢ 00000000 KOXOXOXOXOXOX 1z
@T2AD Ajnq xATy ut
Aqjng uo spotieg
INOH-4Z JO “ON
(sinoy) y42e™
Ajng e1Ty
aseisay
satTnpeyds Aajng eaty
aTNpay xs Agng
ality ut
sAeq jo ‘ON
OZ UT ¢ 0°74 00000000000X0X0X0XO0X
OZ UT 9 7° OS O000000000XOXOXOXOXOX
OZ UT Z g°gs 0000000XOXOXOXOXOXOX 0z
61 UT ¢ 1Z°9 0000000000X0X0X0XOX
61 UT 9 so°es 00000000XOXOXOXOXOX 61
8T UT ¢ 9°94 000000000X0XOXOXOX
8I Ut 9 9S 0000000XOXOXOXOXOX 8T
LT Ut 9 €°6S O000000XOXOXOXOXOX
t LT UE s "64 00000000X0XOX0XOX LT
Lae)
QT UT ¥ ZY 000000000X0XOXOX
91 UTS $*ZS 0000000X0XOXOXOX QT
ST Ut 8° 00000000X0X0X0X
ST ur ¢ 9S 000000X0XOXOX0X ST
yT UT ¢ 09 OCOOOXOXOXOXOX
9T UT 84 0000000X0XOXOX va
aT2AQ Aang asjaty ut
Ajng uo spotieg
ANOH-97Z JO *ON
(sinoy) 429M setTnpayoss Ajng eity
Aqng 21TYy
aselisaay
aTNpayoss A yng
eityZ ut
sAeq jo ‘On
No. of 24-Hour
Periods on Duty
Average
Fire Duty
Week (Hours)
No. of Days
in Fire
in Fire Duty Cycle
Fire Duty Schedules
Duty Schedule
9 in 27
8 in 27
7 in 27
56.00
49.77
XOXOXOXOXOXOXOXOXOOO0O000F 000
XOXOXOXOXOXOXOXOOOO00000C 900
27
43.55
XOXOXOXOXOXOXON0000000000000
10 in 28
60.0
XOXOXOXOXOXOXOXOXOXOOO000000
XOXOXOXOXOXOXOXOXOO0000000000
XOXOXOXOXOXOXOXOO00000000000
XOXOXOXOXOXOXOOO0000000000000
28
9 in 28
8 in 28
7 in 28
326
b dP be
4
:
j
|
Z
327
60-Hour Average Fire Duty Schedule
"10-14" Shifts, 7- Through 28-Day Cycle
In the schedules below, assume that
the schedule begins at 8:00 a.m.
14-Day Fire Duty Cycle (60-Hour Average)
Ee | 3 4 | 5 | 6 | 7
-D N'D NID N'D N DN 'D N'D UN
YG VEG V/ 4 /, G Yi Z |
Py, 0 yy ° yD. ° Vd) ° ‘ Dy nll | 9 i° °
8 9 | 10 11 | 12 13 14
D NID N'D NID NID NID NID BW
0 WW 0 Av 0 (x40 Kio fxio lo lo
BV, 9 AV 0 INZ 0 Va7 0 [Nj 0 |0 Jo!
28-Day Fire Duty Cycle (60-Hour Average)
1 2 | 3 | 4 | 5 | 6 7
D NID NID N:'D N'D WN!D NiD N
7 77 77 | |
Vy o ¢d 07D) 0 Dy 0 7,010,000
at: LLL Lf
8 | 9 | 10 | 1l | 12 | 13 | 14
D N'D NID NID NID NiD NID N
Vis te 2 ae ‘hig ; if
NN , iN Niolnio!olo;\o
dl 417s Rcd “eke Rial 997? lh Bh | | a7 3 |
DN|D.N'D N'D NiD N|D NID N
Yn ho Via eho Ah wm BP
p} 0D) 0 D0 0 )0,0 0 0 0
22 | 23 | 24 25 | 26 27 | 28
DN|D ND NID NjD Ni]D NID x
owio’ fo fwiofxjo|n !
/} P ae ee) Ue . 4 @ | 0 | ll bes
328
DOL SURVEY OF 1975 FIRE DUTY HOURS
The Department of Labor will conduct a
survey in 1976 to ascertain fire duty
hours used by cities during the calendar
year 1975. Local government administra-
tors should insure that adequate records
are kept of fire duty hours, cycles, and
schedules of uniformed fire personnel
during the calendar year 1975. The
law passed by Congress requires the
Secretary of Labor to use the information
gathered on hours actually served on duty
to determine administratively the maxi-
mum number of hours over which fire over-
time will be paid beginning January l,
1978.
Administrators can anticipate substantial
demands by fire groups to lower fire
hours for the calendar year 1975. The
lowe~ the average of fire duty hours is
determined to be in 1975, the lower the
hours over which overtime payment will
be required for firefighters beginning
in :97&. It is possible that beginning
in 1978 the Secretary of Labor could
determine that overtime will be required
over 54 hours per week (as in 1977) or
over a number of hours less than 54 hours
per week. City administrators and city
councils should recognize that reduction
of fire duty hours in 1975 will affect
significantly the number of hours over
which overtime must be paid beginning in
1978. It is theoretically possible that
the Secretary of Labor could determine
that 52, 50, 48, 46, 44, 42 or even 40
329
hours per week--the goal of firefighter
groups--could be established as the num-
ber of fire hours per week over which
overtime must be paid.
1976 REQUIREMENTS FOR FIRE OVERTIME
Effective January 1, 1976, cities will be
required to pay overtime for any hours
over 58 per week, or 232 hours in 28
days. Therefore, to avoid overtime pay-
ments, cities using a 60-hour schedule
will need to revise the schedule.
With the 24-hour fire duty period, the
10-14 period, or the 9-15 period, there
are no fire duty schedules possible that
are equivalent to 58 hours using a cycle
of seven days through 28 days. The next
lowest fire duty schedule possible arith-
matically between seven days and 28 days
is a 56-hour average schedule. The
practical effect of the law enacted by
Congress is to require a 56-hour schedule
starting in 1976 rather than a 58.
A 56-hour fire duty schedule basically
involves being on duty one-third of the
time and being off duty two-thirds of the
time. The basic ratio is simple: one on-
duty hour or one on-duty day out of three.
Therefore, to obtain a permissible sche-
dule, it is necessary to devise a ratio of
fire duty schedules using cycles of duties
divisible by three. Between seven and 28
days, there are seven options of schedules
as follows:
330
56-Hour Fire Duty Schedules
Between 7 Days and 28 Days
Three 24-hour periods in 9:
XOXOX0000
Four 24-hour periods in 12:
XOXOXOXO00000
Five 24-hour periods in 15:
XOXOXOXOXO00000
Six 24-hour periods in 18:
XOXOXOXOXOX0000000
Seven 24-hour periods in 21:
XOXOXOXOXOXOX00000000
Eight 24-hour periods in 24:
XOXOXOXOXOXOXOXOO00000000
Nine 24-hour periods in 27:
XOXOXOXOXOXOXOXOXOO000000000
The lower the number of hours per fire
duty week, the greater the variety of op-
tions in scheduling fire duty periods.
Within each of the schedules shown above,
a great variety of arrangements of on-
duty periods and off-duty periods can be
utilized. For example, a common optional
scheduling of the four 24-hour duty
periods in a 12-day cycle is as follows:
XOXOOXOXOO00,
Cities should avoid a 56-hour average duty
cycle less than seven days in length or
greater than 28 days in length in order to
Pes Rappers
TERY TET a REE Ne
LE ETE PIER TON
331
avoid paying unnecessary overtime. There-
fore, cities should not use a day cycle of
1 in 3 or 2 in 6, such as:
i 2 3
Xx 0 0
O|n
2
0
Ol
2 3
0 xX
<|e
If these schedules are used, 18 hours of
unnecessary overtime every third week may
have to be paid for every firefighter--
equivalent to six hours unnecessary over-
time cost per week per firefighter. This
would result in unnecessary overtime cost
of 10.7 percent of the fire salary budget.
Similarly, the use of a 56-hour schedule
greater than 28 days will result in un-
necessary overtime costs. Such schedules
would be: ten 24-hour fire duty periods
in 30 days, eleven 24-hour fire duty
periods in 33, twelve 24-hour fire duty
periods in 36 days, etc.
1977 FIRE OVERTIME REQUIREMENTS
Effective January 1, 1977, the Fair Labor
Standards Act will require the payment
of overtime for hours in excess of 54
hours per week, or 216 hours in 28 days.
Only one schedule exactly fits this
description. This is a schedule of nine
24-hour fire duty periods in 28 days, or
nine 10-hour day shifts and nine 14-hour
night shifts in 28 days. (Nine 24-hour
fire duty periods equal 216 hours.)
Again, the above examples of 24-hour or
10-14 fire duty schedules for a 54-hour
week may be rearranged in other ways.
Managers and fite chiefs should be aware,
however, that the 9-in-28 fire duty cycle
is the only cycle that will yield an
average duty week of 54 hours. Any other
fire duty cycle will result in payment of
unuecessary overtime or in the use of a
duty schedule that averages less than 54
hours per week.
1978 REQUIREMENTS FOR FIRE OVERTIME
Effective 1, 1978, the Secretary of Labor
is required by law to determine, based on
the Department of Labor's survey to be
made in 1976 of fire hours used in 1975,
whether overtime shall continue to be
paid for hours over 54 hours per week
or whether a lower figure is required.
If the Secretary of Labor determines that
a lower figure is required, city admin-
istrators and fire chiefs should review
carefully the duty schedule that then
would have to be placed into effect.
333
The advent of Fair Labor Standards Act
coverage to ‘ties will require all
persons concerned with fire suppression
duty hours to think ahead not simply for
one year but for the next four years. As
the fire duty schedule hours over which
overtime must be paid are reduced in 1975,
1976, 1977, and potentially in 1978, the
great majority of fire duty schedules in
American cities will have to be revised
to accommodate the annually changing law
and regulations. Even cities that pres-
ently have fire duty schedules signifi-
cantly lower than the 60-hour limit that
will go into effect on January 1, 1975,
may find it necessary to review their
schedules to avoid payment of unnecessary
overtime. This is because many cities
presently have fire duty cycles that
repeat in fewer than seven days or re-
peat in a number of days larger than 28.
It becomes necessary, therefore, for
each city to determine exactly what the
present practice is within the fire
department in scheduling and using fire
duty hours.
FIRE DUTY PERIOD
The city administrator should determine
what is currently the exact practice as
to the length of the fire duty period.
Is the fire duty period 24 hours in
length? When does it start and end? On
occasion, city officials and city councils
have been misled by schedules that show
16 hours one day and eight hours on the
succeeding day. While technically cor-
rect in terms of a 24-hour calendar day,
334
such schedules usually involve 24 con-
tinuous fire duty hours from 8:00 a.m.
one day until 8:00 a.m. the succeeding
day.
FIRE DUTY CYCLE
City administrators should determine the
exact fire duty cycles. Determination
should be made to ascertain exactly how
the fire duty schedule operates. A fire
duty cycle can be as short as two days or
as long as the entire calendar year.
Some fire duty cycles may even require two
or three years before repeating. Most do
not exceed a period of 60 days, but many
do. If the fire duty cycle is less than
seven days or greater than 28 days in
length, the cycle should be adjusted to
be between seven days and 28 days in
length in order to avoid the payment of
unnec*ssary overtime. In devising an
appropriate fire duty cycle when using
a 10-14 or 9-15 schedule, there must be
an identical number of day shifts as
night shifts within the cycle.
"PAY BACKS" 3
Managers should determine whether the fire
duty schedule includes "pay-backs."” A
pay-back is an on-duty period which a
firefighter owes the city in addition to
the duty periods in his regular day cycle.
Pay-backs may be scheduled or unscheduled
(e.g., sick leave, relief). When com-
puting the average duty week, the number
of pay-backs for each firefighter must
be included in the total number of duty
periods scheduled per week.
335
As an example, city X has a 60-hour fire
duty week. However, the city is using a
three-platoon schedule. The fire duty
cycle is three 24-hour on-duty periods
out of nine days. In this city, if the
firefighters did not pay back any 24-
hour duty periods in a year, they would
have a 56-hour average duty week. Ona
56-hour schedule, a firefighter will be
scheduled to be on duty about 122 times
per year. On a 60-hour average duty
schedule, he will be scheduled to be on
duty about 130 times a year. If the fire-
fighter in this example is regularly
scheduled to be on duty only 122 times, he
must be scheduled, in addition, to serve
eight more (pay-back) 24-hour periods in
order to serve an average of 60 hours per
week.
Some of the reasons pay-backs are used
include ease of scheduling (a three-
platoon system is easier to schedule than
a two-platoon system with many subsections)
and the fact that pay-backs enable fire
administrators to have greater flexibility
in covering time off, vacation, and sick
leave. If pay-backs are used, it is im-
portant for city administrators to learn
specifically when the on-duty periods
firefighters owe the city actually are
paid back. The new FLSA law probably
will force the elimination of pay-back
scheduling because of potential overtime
liability.
PAID TIME OFF
Fire departments often grant paid time off
to uniformed firefighters for holidays,
336
sick leave, injuries, and other purposes.
Holidays many times are not granted di-
rectly but indirectly through the use of
the fire duty schedule. As there is no
standard practice in the granting of
vacation, sick, or other paid leave, it
is important in auditing fire duty sche-
dule practices for city administrators
to determine exactly in what units vaca-
tion, sick leave, and other paid time off
may be taken. For example, is a day of
vacation considered to be 8 hours, 10
hours, 12 hours, 14 hours, 24 hours, or
what? Similarly, how many hours are
credited to use as a day of sick leave?
City administrators should determine how
many 24-hour fire duty periods or 10-14
hour periods actually are scheduled per
week and, secondly, how many of the duty
periods hit on holidays. This information
is absolutely necessary in planning for
fire duty schedule changes which a city
may need to make in planning for the im-
pact of the FLSA on January 1, 1975, and
succeeding years.
SHIFT TRADES
Firefighters assigned to fire suppression
activity rarely come to work, on the aver-
age, more than three times per week. Fire
duty schedules, because of the infrequency
of periods on duty, permit a practice
which is perhaps unique to the fire ser-
vice--"shift trading." Typically, a fire-
fighter on one platoon will “trade” one
or more duty periods with a firefighter
on another platoon. This practice en-
337
ables individual firefighters occasion-
ally to obtain a longer number of consec-
utive days off than the regular fire duty
schedule otherwise would provide.
A very simplified example of shift trading
is shown in the table at the top of page
10. In the example, assume two consec~
utive 28-day periods. For ease of iden-
tification, assume these to be February l,
to 28, 1975, and March 1 to 28, 1975.
The fire duty period is 24 consecutive
hours. The fire duty cycle is nine days
in length. There are three p-atoons--A,
B, and C. There are three scheduled 24-
hour duty periods in every nine days, as
follows: XOXOXO000. The average fire
duty week is 56 hours--less than the 60-
hour maximum mandated effective January l,
1975.
Assume that firefighter Jones on A platoon
has arranged a shift trade with fire-
fighter Smith on C platoon. On February 7,
the C platoon is scheduled to be on duty,
and therefore firefighter Smith would be
on duty. However, on February 7, fire-
fighter Smith's shift is served by fire-
fighter Jones, and firefighter Smith does
not come to work that day. Instead,
firefighter Smith has six consecutive
days off between the end of the shift at
8:00 a.m., February 3, and the beginning
of the shift at 8:00 a.m., February 9.
This does not count as time off for vaca-
tion.
On March 13, the A shift is scheduled to
be on duty. Therefore, firefighter Jones
is scheduled to be on duty. However, on
March 13, firefighter Smith serves in
firefighter Jones' place and "repays" the
shift trade. Firefighter Jones therefore
Pla-
fighter toon
Fire-
Februa y 1975
8 9 10 ll le
25 26 27 28
20 21 22 23 24
i3 14 15 16 17 18 19
7
6
]
A
Jones
C
Smith
338
TRADE
ch 1974
12345 6 7 8 910 11
2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
A
Jones
C
Smith
24-hour fire duty period
8:00 a.m.
X =
to 8:00 a.m.
339
has six consecutive days off from the end
of the shift at 8:00 a.m., March 13, to
the beginning of the shift at 8:00 a.m.,
March 18. This does not count as time
off for vacation.
In this example, two firefighters have
each worked one 24-hour fire duty period
on another platoon's schedule. They also
have worked in such a way as potentially
to be able to claim overtime under the new
law. Each took time off in one 28-day
"work period" and worked an additional
24-hour duty period in a different work
period of 28 days. This may require the
city as the employer to pay overtime to
each firefighter--even though the shift
trades were for the convenience of the
employees involved and of no benefit to
the employer.
In this example, each firefighter worked
an extra 24 hours on duty in the 28-day
work period. The fire schedule is an
average of 56 hours per week. Therefore,
in 28 days (four weeks) the federal law
would assume an on-duty schedule of 4 x 56
hours or 224 hours worked.
On-duty schedule 224 hours
Shift trade “overtime” 24 hours
248 total hours
worked
340
Total hours worked 248
1975 fire overtime
law -240
8 hours overtime at
1-1/2 equals 12
hours pay due to
firefighter Smith
and to firefighter
Jones.
The Department of Labor regulations to be
issued will contain provisions as to
whether shift trades will penalize em-
ployers who permit them.
SHIFT TRADE RECOMMENDATIONS
Each city should identify its own practice
in permitting shift trades. Some fire
departments have no formal restrictions
concerning this matter; others have strin-
gent regulations. Some departments forbid
shift trades. A city that ignores this
matter may later find that it has incurred
substantial overtime liability once the
new law becomes operative on January l,
1975. Probably shift trades that occur
within a given 28-day work period will not
require payment of unnecessary overtime.
In the example, if firefighter Smith on
C platoon had traded with firefighter
Jones on A platoon within the 28 days in
February (the 28-day work period), each
firefighter would have served the same
number of 24-hour duty periods as he would
have on his regular platoon schedule. The
problem will arise when firefighters trade
shifts over periods of time beyond the
28-day work period.
341
City administrators and fire chiefs may
well be advised to plan to withhold shift
trade privileges for 1975, or to restrict
shift trades within 28-day work periods,
pending the issuance of the Department of
Labor regulation on the subject. If
shift trades are subject to negotiation
with firefighter employee groups, persons
responsible for negotiating for city
management should consider either (1)
stopping the practice of shift trades,
(2) restricting shift trades to require
prior approval of management to avoid
payment of unnecessary overtime, or (3)
leaving an "opener" in the agreement pend-
ing the DOL regulation. being issued.
THE POTENTIAL FIRE OVERTIME "BOOBY TRAP"
In addition to all the problems of fire
service costs and staffing that have been
discussed in this report, there remains
at least one unknown but possibly very
expensive fire overtime problem that may
occur because of the new federal law.
Section 7(a)(1) of the Fair Labor
Standards Act states:
"Except as otherwise provided in this
section, no employer shall employ any of
his employees...for a workweek longer
than forty hours unless such employee
receives compensation for his employment
in excess of the hours above specified
at a rate not less than one and one-
half times the regular rate at which he
is employed."
The newly added Section 7(k) for police
and firemen states:
342
"No public agency shall be deemed to
have violated subsection (a) with re-
spect to the employment of any employee
in fire protection activities...if
(emphasis added) neat
"(1) in a work period of 28 consecu-
tive days the employee receives
for tours of duty which in the
aggregate exceed 240 hours; or
"(2) im the case of such an employee
to whom a work period of at
least 7 but less than 28 days
applies, in his work period the
employee receives for tours of
duty which in the aggregate ex-
ceed a number of hours which
bears the same ratio to the
number of consecutive days in
his work period as 240 hours
bears to 28 deys,
"compensation at a rate not less than
one and one-half times the regular rate
at which he is employed.”
The term "work period” used in the new
Section 7(k) above has a special meaning.
Every employer covered by the act must
declare what is the work period; that is,
the days for record-keeping purposes in
which the number of work hours will be
counted. For almost all employers, the
work period is seven days; the employer
specifies at what point in the week the
work period begins and ends (e.g., 12:01
a.m. Sunday through midnight Saturday;
or 8:00 a.m. Monday through 7:59 a.m.
Monday, etc.).
343
The new Department of Labor regulation
will spell out what is meant by "work
period" for firefighters. Cities may have
many options in declaring what is the work
period because of the provisions of
Section 7(k)(2) above, which enable cities
to use ratios in determining average fire
hours per week. Therefore, a permissible
work period might be 7 days, 8 days, 9
days, 10 days...27 days, 28 days. A
city that fails to declare a work period
potentially is very vulnerable to sub-
stantial "booby trap" unnecessary overtime
costs, particularly a city that fails to
readjust its fire duty cycle schedule to
be between seven days and 28 days.
For example, assume a city now has a 56-
hour average fire duty week. It uses a
24-hour fire duty period. It has three
platoons. The duty cycle is three days.
The duty schedule is 24 hours on-duty and
48 hours off-duty ( X 0 0). Assume that
January 1, 1975, comes and goes and the
city has not changed its schedule or de-
clared a work period for firefighters.
Firefighters continue to work the same
fire duty schedule in the year 1975 as in
1974. After a period of time, the booby
trap explodes: City officials learn that
the city is liable for overtime costs for
time over 40 hours for every third week
that firefighters have worked on the old
schedule.
Where did this booby trap come from? The
trap is the little word "if" in Section 7
(k). Section 7(k) is an exemption from
the 40-hour week and from paying time-and-
344
one-half for hours worked over 40. In
order to obtain the exemption, cities must
comply with the provisions of Section 7
(k). Section 7(k) states that a city must
pay a firefighter at time-and-one-half for
hours worked over 60 hours in a work
period of seven days, 240 hours in a work
period of 28 days, or the same ratio to
the number of consecutive days in his
work period as 240 hours bears to 28 days.
If a city does not pay a firefighter time-
and-one-half for hours worked in excess
of 60 in a seven-day work period, etc.,
the city has not met the test of the
exemption of Section 7(k) and, therefore,
will be held in violation of Section 7(a)
for the given work period. Section 7(a)
requires overtime for work over 40 hours
in seven days at time-and-one-half.
What vould this mean for the city with the
three-day fire duty cycle which has not
declared its work period? Probably, on
receiving a complaint from the fire-
fighters’ union or employee organization,
or from individual firefighters, the
Wage and Hour Division would conduct an
audit of the city's wage and hour records.
The Wage and Hour staff persons would find
that every third week each firefighter was
on duty three 24-hour shifts: XOOXOOX.
Therefore, each firefighter served in
those weeks 72 hours. As the firefighters
were not paid overtime for work over 60
hours in each of these weeks, the city's
exemption does not apply--and the city
will be required to pay time-and-one-half
for hours over 40!
345
72 hours every third week
-40 hour requirement (the booby trap)
32 hours overtime
zs ies
48 hours overtime for each week
As the salary probably would be computed
on a 40-hour basis, this could amount to
more than double pay for every week in
which this situation occurred: This could
amount to more than a 40 percent of pay-
roll cost for back overtime claims filed
for a period of one year. A city with
a $10 million fire salary payroll, for
example, could find itself ordered to pay
back overtime of $4 million. If "liqui-
dated damages" were assessed (double
costs), the bill could be $8 million. And
all for firefighters on a fire duty sche-
dule of less than the maximum required by
law!
The new Department of Labor regulations
will detail how to keep records, how to
determine work period, and, in effect, how
to deactivate the Section 7(a) booby trap.
THE WAGE AND HOUR DIVISION,
DEPARTMENT OF LABOR
The Department of Labor maintains regional
and area offices throughout the United
States. A list of these offices appears
in the appendix.
Staff members of the Wage and Hour Divi-
sion are available to assist city officials
in any way possible to understand and to
346
comply with the law. City officials are
advised to contact Wage and Hour offices
to obtain answers to specific questions
concerning the Fair Labor Standards Act.
It is the apparent intention of the
Department of Labor to treat cities like
any other employer, except where Congress
has provided that special regulations are
needed. Except in the new coverage
provided in Section 7(k) for police and
fire personnel, it is expected that almost
all other provisions of the act will apply
to cities as they have in the past to pri-
vate employers. The Department of Labor
Wage and Hour Division will make available
to cities copies of DOL regulations that
cities will need to observe.
Wage and Hour Division staff members at
the national, regional, and area offices
have been very helpful to city officials
seeking information and assistance. Man-
agers, fire chiefs, and other concerned
with the special provisions of the law
pertaining to fire or police overtime or
other provisions and regulations of the
act should contact the Department of Labor
offices for help.
MIS REPORT TO BE ISSUED
This report is intended to help city
administrators become aware of many of
the problems raised by the new federal
legislation. As the Department of Labor
regulations pertaining to overtime will
not be issued until the summer of 1974,
many answers cannot now be provided to
questions that city administrators and
347
fire chiefs may have. This report is
intended, however, to serve as a guide
in planning for budgeting and negotia-
ting based upon the latest available
information. By January 1975 a revised
and updated MIS report will be issued
on fire duty schedules and staffing for
fire departments considering the impact
of FLSA. By that time, the final Depart-
ment of Labor regulations will have been
issued, and much more specific infor-
mation will be available for publica-
tion. In the meantime, the International
City Management Association will present
to the Department of Labor relevant sta-
tistics on duty hours of firefighters.
This special MIS report has been prepared
to provide local government administrators
with guidelines for avoiding unnecessary
overtime costs for fire service under
provisions of the recently enacted Fair
Labor Standards Act.
The report was prepared by William F.
Danielson, Director of Personnel for the
City of Sacramento, California. Mr.
Danielson formerly served as Director of
Personnel for Berkeley, California. He
has extensive experience in advising local
governments on fire duty schedules and
staffing and has authored an earlier MIS
report on the topic.
348
Appendix
WAGE-HOUR AREA DIRECTORS
Atlanta Region
Birmingham, Ala.--Hansel J. Hunter, 1931
Ninth Avenue South, Birmingham 35202
Mobile, Ala.--Charles A. Roberts, P.O.
Box 4396, Mobile 36604
Montgomery, Ala.--Dalton 0. Blake, 421 S.
McDonough Street, Montgomery 36104
Fort Lauderdale, Fla.--Area Director,
Romark Building - Room 215, 3521 West
Broward Boulevard, Fort Lauderdale 33312
Jacksonville, Fla.--Labon F. Chappell, Jr.,
3947 Boulevard Center Drive - Suite 121,
Jacksonville 32207
Miami, Fla.--Area Director, 1150 S.W. lst
Street - Room 202, Miami 33130
Orlando, Fla.--William C. Truman, P.O.
Box 8024A, 22 West Lake Beauty Drive,
Orlando 32806
Tampa, Fla.--Delbert L. Coleman, Mills
Building - Suite 110, 5410 Mariner
Street, Tampa 33609
Atlanta, Ga.--Le Roy Reid, Citizens Trust
Building - Room 1100, 75 Piedmont Avenue,
Atlanta 30303
Columbus, Ga.--Robert E. Lamb, P. 0. Box
1717, Columbus 31902
Savannah, Ga.--William A. Savage, P. 0.
Box 8046, Wright Square Station,
Savannah 31402
Lexington, Ky.--Ernest C. Orr, Fuller
Building - Room 118, 120 W. Second,
Lexington 40507
Louisville, Ky.--Richard D. Robinette,
187-E. Federal Building, 600 Federal
Place, Louisville 40202
349
Charlotte, N.C.--Fred A. Carlock, BSR
Building - Room 401, 316 E. Morehead
Street, Charlotte 28202
Greensboro, N.C.--Raymond G. Cordelli,
P.O. Box 2220, Greensboro 27402
Raleigh, N.C.--Area Director, P.O. Box
27486, Raleigh 27611
Columbia, S.C.--Richard F. Gardner,
Room 105-C, Liberty House, 2001
Assembly Street, Columbia 29201
Jackson, Miss.--Joseph C. Massey, Room 675
Milner Building, 210 South Lamar Street,
Jackson 39201
Knoxville, Tenn.--Lillard Trice, P. 0.
Box 631, Knoxville 37901
Memphis, Tenn.--Area Director, 486 Federal
Office Building, 167 North Main Street,
Memphis 38103
Nashville, Tenn.--Claiborne W. Carden,
1720 West End Building - Room 610, 1720
West End Avenue, Nashville 37203
Boston Region
Hartford, Conn.--John J. Reardon, 305 Post
Office Building, 135 High Street,
Hartford 06101
Portland, Maine--Philip Schilling, P. 0.
Box 211, Portland 04112
Boston, Mass.--William L. Smith, 38
Chauncy Street - Room 912, Boston 02111
Springfield, Mass.--James F. Coakley,
Room 340 - Federal Building, %36 Dwight
Street, Springfield 01103
Providence, R.I.--John S. Dawber, 210-212
John E. Fogarty Federal Building, 24
Weybosset Street, Providence 02903
350
Chicago Region
Chicago, Il1l.--Herbert A. Goldstein, 4030
North Milwaukee Avenue, Chicago 60641
Chicago, Ill. - South--Daniel P. New,
2222 West 95th Street, Chicago 60643
Springfield, I1l1.--Henry Neuhaus, Federal
Building - Room 25, 600 E. Monroe Street,
Springfield 64701
Indianapolis, Ind.--Kenneth J. Graue, Ohio
and Pennsylvania Streets, Room 409,
Federal Building, Indianapolis 46204
South Bend, Ind.--Area Director, 103 West
Wayne Street, Commerce Building - Room
406, South Bend 46601
Detroit, Mich. - East--Arthur H. Buchman,
16641 East Warren Avenue, Detroit 48224
Detroit, Mich. - West--Frank C. Modetz,
14740 Plymouth Road, Detroit 48227
Grand Rapids, Mich.--Gordon L. Claucherty,
Room 134, Federal Building and U.S.
Courthouse, 110 Michigan Street, N.W.,
Grand Rapids 49502
Minneapolis, Minn.--Phillip Granquist, 110
South 4th Street, Room 396 - Federal
Building, Minneapolis 55401
Cincinnati, Ohio--Glen A. Fierst, 550 Main
Street, Federal Office Building - Room
1010, Cincinnati 45202
Cleveland, Ohio--Robert F. Pietrykowski,
1240 E. 9th Street - Room 817, Federal
Office Building, Cleveland 44199
Columbus, Ohio-~-Karl A. Jemison, 700 Bryden
Road, 213 Bryson Building, Columbus 43215
Madison, Wis.--Jerome H. Estock, 303 Price
Flace, Room 114, Lincoln Building,
Madison 53705
Milwaukee, Wis.--Edmund Shedd, 741 N.
Milwaukee Street, 535 Grain Exchange
Building, Milwaukee 53202
351
Dallas Region
Little Rock, Ark.--Bill D. Guse, Room 3527
Federal Office Building, 700 West
Capitol Avenue, Little Rock 72201
Baton Rouge, La.--Donald E. Zimpfer, Room
216-B, Hoover Building, 8312 Florida
Boulevard, Baton Rouge 70806
New Orleans, La.--Thomas B. Killeen, Room
632, Federal Building, 600 South Street,
New Orleans 70130
Albuquerque, N.M.--Willie G. Thurman,
P.O. Box 1869, Albuquerque 87103
Oklahoma City, Okla.--Shirley C. Thorne,
Room 210, Post Office Building, 3rd
and Robinson Streets, Oklahoma City
73102
Tulsa, Okla.--Bill M. Hamilton, Room 3014,
Federal Building, 333 West Fourth Street,
Tulsa 74103
Dallas, Tex.--Edgar M. Wiemar, Room 1A3,
Federal Building, 1100 Commerce Street,
Dallas 75202
El Paso, Tex.--William C. Calvit, Suite
1103, Mills Building, 303 North Oregon
Street, El Paso 79901
Fort Worth, Tex.--L. C. Chandler, 819
Taylor Street - Room 7Al12, Fort Worth
76102
Harlingen, Tex.--Alfred A. Ramsey, P.O.
Box 1147, Harlingen 78550
Houston, Tex. - East--Karle G. Berg, 2320
LaBranch, Room 2103, Houston 77004
Houston, Tex. - West--William H. Lemons,
Jr., 2320 LaBranch Street - Room 2101,
Houston 77004
San Antonio, Tex.--Harry B. Nunn, Jr.,
403 Kallison Building, 434 South Main
Avenue, Sen Antonio 78204
Waco, Tex.--Ben W. Ferrell, 621 Citizen's
Tower, Fifth and Franklin Streets,
Waco 76/701
352
Denver Region
Denver, Colo.--Wilbur J. Olson, 228 U.S.
Custom House, 721-19th Street, Denver
80202
Salt Lake City, Utah--Area Director, 3207
Federal Building,125 South State Street,
Salt Lake City 84138
Kansas City Region
Des Moines, Iowa--Paul A. Lynn, 638
Federal Building, 210 Walnut Street,
Des Moines 50309
Wichita, Kans.--Walter ©. Gick, 411 Beacon
Building, 114 South Main, Wichita 67202
Kansas City, Kans.--Rex L. Wayman, 241
U.S. Courthouse, 811 Grand Avenue,
Kansas City 64106
St. Louis, Mo.--Jack R. Younce, 210 North
12th Boulevard - Room 563, St. Louis
63101
Omaha, Nebraska--Floyd L. Wilson, 2118
Federal Building, 215 North 17th Street,
Omaha 68102
New York Region
Newark, N.J.--Area Director, 870 Broad
Street - Room 836, Newark 07102
Paterson, N.J.--Leonard R. Jacoby, 133
Ellison Street, Paterson 07505
Trenton, N.J.--Area Director, 143 East
State Street, Trenton 08608
Albany, N.Y.--Julius R. Chenu, 41 State
Street, Albany 12207
Brooklyn, N.Y.--Joseph Shaffer, 271 Cadman
Plaza East - Room 631, Brooklyn 11201
Bronx, N.Y.--Abraham Klainbard, 881 Gerard
Avenue - Room 4, Bronx 10452
353
Buffalo, N.Y.-- Edward J. McNamara, 617
Federal Building, 111 West Huron Street,
Buffalo 14202
Hempstead Long Island, N.Y.--Joseph F.
Gorga, Street Floor, 159 North Franklin
Street, Hempstead 11550
New York, N.Y.--Area Director, 26 Federal
Plaza - Room 2946, New York 10007
Hato Rey, Puerto Rico--Pedro Montes-
Herdandez, Pan Am Building - Suite 310
255 Ponce de Leon Avenue, Hato Rey 00917
Mayaguez, Puerto Rico--Eddie Bonar-Antonetti,
Americo Marin Building, 105 East Mendez
Vigo Street, Mayaguez 00708
Philadelphia
Region
Baltimore, Md.--Hillard Curland, 1022
Federal Office Building, 31 Hopkins
Plaza, Charles Center, Baltimore 21201
‘Hyattsville, Md.--Area Director, Suite 904
Presidential Building, 6525 Belcrest
Road, Hyattsville 20782
Harrisburg, Pa.--David Feinberg, Federal
Building - Room 74, 228 Walnut Street,
Box 1005, Harrisburg 17108
McKeesport, Pa.--Area Director, 224 Fifth
Avenue, Room 205, McKeesport 15132
Philadelphia, Pa.--Theodore M. Rogers,
600 Arch Street - Room 4244, Philadelphia
19106
Pittsburgh, Pa.--Area Director, 702 Federal
Building, 1000 Liberty Avenue, Pittsburgh
15222
Wilkes-Barre, Pa.--Jack R. Elliott, 602
Wyoming Valley, Veterans Building,
19 North Main Street, Wilkes-Barre 18701
354
Richmond, Va.-~-Robert F. Ferguson, Jr.,
7000 Federal Building, 400 North 8th
Street, Richmond 23240
Roanoke, Va.--David E. Pickard, 609-13
Peoples Federal Building, 101 S.
Jefferson Street, Roanoke 24011
Charleston, W.Va.--Eldon F. Spurlock, 22
Capitol Street, Charleston 25301
San Francisco Region
Phoenix, Ariz.--John Breen, Park Plaza
Building, 1306 North lst Street,
Phoenix 85004
Hollywood, Calif.--Robert C. Sturgis,
Room 504, 6777 Hollywood Boulevard,
Hollywood 90028
Los Angeles, Calif.--Carl M. Oelrich, 7717
Federal Building, 300 North Los Angeles
Street, Los Angeles 90012
Sacramento, Calif.--John F. Cooper, 8410
Federal Building and L.S. Courthouse,
650 Capitol Mall, Sacramento 95814
San Francisco, Calif.--Patricia H. Mills,
409 Phelan Building, 760 Market Street,
San Francisco 94102
Whittier, Calif.--Theodore Revak, Main
Floor, 7238 South Painter Avenue,
P. O. Box 81, Whittier 90602
Honolulu, Hawaii--Thomas N. Moriki, 1833
Kalakaua Avenue - Room 614, Honolulu
96815
Seattle Region
Portland, Oreg.--Donald W. Henry,
528 Pittock Block, 921 S.W. Washington
Street, Portland 97205
Seattle, Wash.--Eugene T. Kord, Room 1821
Smith Tower, 506 Second Avenue,
Seattle 98104
355
Defendant's Exhibit No. 4
NATIONAL LEAGUE OF CITIES
UNITED STATES CONFERENCE OF MAYORS
July 5, 1974
Warren D. Landis, Administrator
Wage and Hour Division
Department of Labor
711 14th Street, N.W.
Room 1107
Washington, D.C. 20210
Dear Warren:
Attached, as promised, are the results of the survey of
cities over 10,000 population relative to “tours of duty”
and fire department “work cycles.”
It is our hope that you will find the information
useful, relevant and helpful to you and your staff in the
development of regulations for public safety employees.
if you have any questions, or if we can be of further
assistance, please call.
Sincerely,
/s/ Don
Donald A. Slater
Director
Office of Federal Relations
356
CONTENTS
Summary Statement.
Sample Questionnaire
Table |
Table 2
Table 3
Table 3A
Table 3B
Table 3C
Table 3D
Table 3E
Table 3F
Table 4
Table 4A
Table 4B
Table 4C
Table 4D
Table 4E
Table 5
Table 6
Table 7
Cities Over 10,000 Population Responding
to Survey Questionnaire.
Cities Over 10,000 Having Full Time Paid
Uniformed Firefighters.
Tours of Duty for Firefighters.
Cities Having 24-Hour Continuous Duty
Shifts.
Cities Having 10/14 Duty Shifts.
Cities Having 9/15 Duty Shifts.
Cities Having 11/13 Duty Shifts.
Cities Having 8-Hour Workday.
Cities Having Other Duty Shifts.
Length of Firefighter’s Duty Cycle (in days).
Length of Firefighter's Duty Cycle: Less
than 7 days.
Length of Firefighter's Duty Cycle: 7 thru
28 days.
Length of Firefighter's Duty Cycle: 29 or
more days.
Length of Firefighter's Duty Cycie: Less
than 7 and more than 28 days.
Cumulative Percentage of Length of
Firefighter Duty Cycle.
Cumulative Percentage of Average Hours Per
Week Firefighters are on Duty.
States which have Laws’ Regulating
Firefighter Duty Cycles (Sample State
Statutes Attached)
Alphabetical Listing of Individual City Fire
Department Tours of Duty, Length of Cycle
and Average Week.
357
Attached for your information are the results of the
ICMA survey discussed by Chief Mitchell in his testimony
on behalf of the National League of Cities, U.S.
Conference of Mayors, International City Management
Association, National Governors Conference and National
Association of Counties before the Department of Labor
on the development of regulations for implementation of
the Fair Labor Standards Act Amendments of 1974
relating to public safety personnel.
All cities in the United States over 10,000 population
were surveyed to determine fire “tours of duty” and fire
department “work cycle” practices.
A key finding in the survey is that 80% of American
municipal fire departments use a “tour of duty” which is
24 hours in length. Only 18% use a “‘split-shift” such as
10/14 (10 hour day shift; 14 hour night shift), 9/15 (9
hour day shift; 15 hour night shift), or the 11/13 (11
hour day shift; 13 hour night shift). Two percent of
municipal fire departments use eight hour work shifts or
other shift arrangements.
The prevailing practice among fire departments in the
United States (except in a few states such as New Jersey
and Pennsylvania) is to use the 24 hour duty period for
firefighters assigned to fire suppression.
The Department of Labor decision as to whether to
exempt or not exempt time spent in eating and sleeping |
thus has great importance in over a thousand American
cities. The decision will affect fire department operations,
costs of fire service and levels of fire service in a great
many cities. The Department of Labor May 14 interim
ruling, which requires that for firefighters with tours of
duty of 24 hours or less no time may be deducted for
meals or sleeping, reverses the historic practice of
exempting meal and sleeping time for just this one group
358
of employees. Eating and sleeping time has been
deducted for industrial firefighters assigned to a 24 hour
tour of duty, as well as other employees in both the
private and public sector assigned to 24 hour tours of
duty. Equity requires that the ruling promulgated in the
interim regulation be reversed and that the traditional
and longstanding Wage and Hour ruling on 24 hour tours
of duty be continued across the board to all employees
who work such shifts.
Another key finding of the survey is that a majority of
municipal fire departments have “‘work cycles” which are
less than 7 days in length or greater than 28 days in
length. Forty-one percent of municipal fire departments
have “work cycles” which are two, three, four, five or six
days in length. Nine and one-half percent of municipal
fire departments report cycles ranging from 29 days toa
year in length. These findings contradict testimony in the
June 3 hearing that very few cities have “work cycles” in
excess of 28 days. A further finding is that over one-third
of fire department use a 24 hour on/48 hour off duty
cycle. This averages 56 hours per week; the cycle is three
days in length. Detailed information concerning the great
variety of lengths of duty cycles is reported in the
attached survey.
To accomodate to the new requirements imposed by
Section 7 (k) of the Act, municipalities must have the
discretion to determine the length of the “work period”
at any point between 7 days and 28 days.
Notwithstanding statements presented at the hearings, we
submit that nowhere in the legislation or legislative intent
can be found any support for the contention that the
“work cycle” be the shortest number of days within the
7 to 28 day period within which the fire duty schedule is
established without repeating itself.
359
While the question was not asked in the survey, many
cities reported the use of “paybacks”’ and “Kelly days.”
The use of “paybacks” and “Kelly days” has the effect of
lengthening the work cycle — often to as much as a year.
A brief definition of these terms is: A ‘‘payback’’ is a
tour of duty which the firefighter owes the city. It is a
scheduled tour of duty within the calendar year but is
paid back on occasions outside the regular work cycle.
E.g. assume a fire department which as a 60 hour average
fire duty week; the work cycle is 9 days in length. A
fireman is scheduled to be on duty three 24-hour periods
in the cycle as follows: (XOXOXOOO). On this work
cycle a fireman would have a 56-hour average duty week.
However, he is required during the year to “pay back”
eight 24-hour duty periods. Each fire duty period paid
back has the effect of one-half average hour per week.
Therefore, the 8 fire duty periods served raises the
average of the fire duty week over the course of a year to
60 hours. The use of “‘paybacks”’ is very common among
many fire departments because of the several advantages
to both firefighters and fire management in this kind of
scheduling arrangement. The fire department can thus
establish a three platoon system, and at the same time
have the use of payback time for filling in for scheduled
vacations or unscheduled absences such as sick leave
relief.
The “Kelly Day” is the reverse of the payback in fire
department scheduling of tours of duty. In the 1930's,
Chicago firemen were on duty for 24 hours, then off
duty 24 hours (equivalent to an average 84 hour week).
Legend says that Mayor Kelly, then Mayor of Chicago,
reduced Chicago fire hours by providing that every eighth
scheduled 24-hour duty period would be taken off.
360
Thereupon, the Chicago fire duty cycle was changed from
2 days in length (XO) to a schedule of 16 days in length
(XOXOXOXOXOXOXO*O). The formerly scheduled
24-hour period not worked was thus nicknamed the
“Kelly Day” in recognition and appreciation of Mayor
Kelly’s action.
During the past thirty-plus years, the term “Kelly
Day” has spread to many other cities and has more
recently acquired a meaning somewhat parallel to that of
“payback’’, except that the fireman will not serve one or
more schedule shifts during the year, rather than to have
to pay them back. For example, again assume that the
fire dep rtment has a 9-day cycle, with 3 scheduled
24-hour periods on duty every 9 days (KOXOXOOOO).
Now assume that each firefighter has 8 “Kelly Days”
throughout the year. This means that instead of being
scheduled to be on duty 121 times per year, a firefighter
would actually be scheduled to be on duty only 113
(121-8) times per year. Thus, instead of an average
56-hour average duty week, in this example the
firefighter would have an average 52-hour week. The
“work cycle’, in this example, would be extended from
9 days to possibly as long as an entire year. The
administrative advantages of the Kelly Day are similar to
the payback. The fire department can retain a basic
platoon arrangement and permit “Kelly Days” off either
on a regular recurring cycle, or perhaps on an irregular
basis at times when the fire department can better afford
to have fewer firefighters on duty.
Many cities surveyed volunteered the information that
their particular departments use a “payback” or a “Kelly
Day’’, on either a regular basis or an irregular basis. Since
*Kelly Day
361
the specific question was not asked on the survey
questionnaire, it is not possible to report exact
information as to how fire departments use one or the
‘ other of these scheduling methods. It is probable that as
many as 20% of the municipal fire departments may use
some variation of “payback” or “Kelly Day” scheduling.
Therefore, the more likely percentage of fire departments
having work cycles of other than between 7 and 28 days,
rather than 50.5% is in excess of 60%.
With the requirement of the law being that the work
period must be between 7 and 28 days, many fire
departments throughout the United States will need to
re-structure the fire duty schedule thus eliminating the
present, and long-prevailing, practice of using “‘paybacks”’
and “Kelly Days.”
Since there was no discussion at the hearing of the
problems of paybacks and Kelly Days, these definitions
and examples are presented to alert the Department of
Labor to yet another complexity in dealing with fire duty
schedules.
After the fire duty schedules had been returned and
were being tabulated and analyzed, another pattern began
to emerge from comments volunteered by respondents.
In a number of states, laws have been enacted which
regulate various aspects of fire hours, such as the length
of the tour of duty, the length of the work cycle, or to
specify the maximum average number of hours per week.
Therefore, a special survey was prepared by the National
League of Cities and sent to each State Municipal League,
asking whether the individual state had legislation
enacted which restricted or affected fire duty hours. Of
36 states which have replied to date, 18 have reported
that there is current legislation in force within the state
which restricts fire hours or scheduling. Many Leagues
362
attached copies of state statutes. As many of these
statutes contain provisions which are contrary to the
provisions of the Amendments to the Fair Labor
Standards Act, copies of these statutes are included as
attachments to this letter.
The regulation to be issued by the Department of
Labor must specifically nullify any existing state statute
which mandates less than a 7 day “‘work cycle”’ or more
than a 28 day “‘work cycle”. Cities must not be caught on
the horns of a dilemma of complying with a state statute
which will in turn cause unnecessary mandatory overtime
We especially would like to call to your attention the
Texas statute, which requires cities to average fire duty
hours over the course of an entire year. The Maine statute
requires the work cycle to be not longer than 12 weeks.
North and South Dakota each restrict the fire duty cycle
to 2 weeks. For certain cities, New Jersey requires a
6-week fire duty cycle. Kentucky limits cities to 24-hours
on-duty, 48-hours off-duty: a three day cycie. Michigan
requires municipal fire departments to use a 24-hour fire
duty period, with at least 24-hours off duty following an
on duty period. On the other hand, New Jersey and
Pennsylvania require a 10/14 system (10 hour day shift 8
a.m. to 6 p.m.; 14 hour night shift 6 p.m. to 8 a.m.).
Montana has a law which appears to limit the
work-related hours of a 24-hour fire duty period to a
maximum of 8 hours, except for fire or emergency
responses. A telephone call to Montana to identify more
specifically the meaning of this statute produced the
information that there are four cities of the first class and
that each such city uses a 24-hour duty period.
Therefore, this law seems to emphasize the difference
between the traditional fire duty period in which up to a
363
third of the 24 hours are spent in active work-related
activities, and at least two thirds of the 24-hour period is
spent in sleeping, eating and other standby activities, but
during which the firefighter is always subject to call to
respond to alarms.
In addition to the supplemental attachment of the
survey of state statutes, the final attachment is a
computer printout of information for almost all cities
participating in the survey. For technical reasons, as
information was introduced into the computer on two
occasions, we are informed that the computer run will
not print individual data for 85 cities. Therefore, the
array of data is not totally complete.
ICMA Survey on Firefighter Schedules
The recently passed Fair Labor Standards Act will have
major implications for local government in the areas of
police and fire. The Department of Labor is in the
process of developing regulations which will determine
how this law will be administered. They will be holding
hearings on these regulations shortly. It is imperative that
they receive local input to guide them.
By filling our the questionnaire below you will be
giving us necessary information to make positive
recommendations. Time is limited. Hearings begin on
June 3. Please fill out the questionnaire and return it in
the enclosed business reply envelope immediately.
1. Does your municipality have a full-time paid
uniformed fire department (excluding departments with
only a paid fire chief and the remainder volunteer)?
YES( ) NO( )
If “NO”, please indicate which of the following is
applicable to your municipality. (Check one)
364
a. Volunteer fire department
_b. Contract for fire service
___c. Fire service provided by a special district
..d. Metropolitan government provides service
e. Public Safety Department
f. County provides service
2. DUTY SHIFT: Please indicate the length of the
duty shift for personnel engaged in actual firefighting or
suppression. (Check one)
a. 24-hour continuous shift (includes sleeping
and eating time)
b. 10/14 shift (10 hour daytime, 14 hour
nighttime shifts, e.g. a typical 10 hour shift
would be 8 am to 6 pm and 14 hour shift; 6
pm to 8 am)
c. 9/15 shift (9 hour daytime, 15 hour
nighttime shifts)
d. 8 hour work day (firefighters are on the job
during the shift, not just on call)
e. Other (Please explain)
cee
3. DUTY CYCLE: Work schedules are computed on
the basis of a duty cycle of a certain number of days on
and off. The cycle is not necessarily a week. For instance,
it might be one day on duty, two days off duty and then
repeating; this would be a three day work cycle. Cycles
may range from 2 days to 28 days or longer.
Please indicate the length of your firefighters’ duty
cycle
(+ of days)
Please indicate the number of days on duty during
cycle -
(+ of days on duty)
365
4. HOURS ON DUTY PER WEEK: When averaged
over the year, how many hours per week (7 days) are
your firefighters on duty? hours.
Name
Position
City -
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Table de ma Table $ eo
CUMULATIVE PERCENTAGE OF LENGTH . CUMULATIVE PERCENTAGE OF AVERAGE HOURS
OP FIREFIGHTER DUTY CYCLE : PER WEEK FIREFIGHTERS ARE ON DUTY ~
Number of Days Cumulative _ Cumulative t > .
in Fire Duty Number of Number of Total Re- Average Fire Cumulative Cumulativet
Cycie Cities Cities porting (1209) Hours on Duty Number of ‘umber of of Total Re-
Week Cities Cities
2 12 12 1 PFs =< 3
3 438 450 37.2 37.3 1 1 0.1
4 17 467 38.6 40 46 @ 3.8
5 1 468 38.7 40.3 1 48 3.8
6 28 496 41.0 42 142 190 18.2
| . ‘ 42.5 s:* 192 15.3
7 44 540 44.7 44 2 194 15.5
8 11 653 54.4 45.8 1 19s 15.6
9 182 840 69.5 46 i 196 15.7
10 21 861 71.2 46.9 1 197 15.7
11 4 865 71.5 47.5 1 198 15.8
12 56 921 76.2 48 39 237 18.9
14 27 948 78.4 49 1 230 19.0
15 14 962 79.6 50 3. 241 19.3
16 11 973 80.5 50.2 2 243 ? 19.4
17 1 974 80.6 $0.3 1 244 > 19.5
18 4 978 80.9 50.4 5 249 ° 19.9
20 a 980 , 81.1 $0.5 1 258 20.0
21 27 1007 83.3 51 i 251 20.1
22 1 . 2008 83.4 $1.3 2 253 20.2
24 13 1021 84.4 52 ? 260 20.8
25 1 1022 84.5 52.2 1 261 20.9
26 1 1023 , 84.6 $2.3 1 262 . , 21.0
27 13 1036 85.7 $2.5 1 263 21.0
28 58 1094 : 53 2 265 21.2
: 20.5 53.3 1 266 21.3
- ! 53.5 1 26? 21.3
27 54 8 275 22,0
32 9 cite + ad 54.6 2 276 22.1
40 2 1137 94.0 $6.3 1 982 78.5
42 10 1147 94.9 57 i 9@3 78.6
45 2 1149 95.0 57.4 1 bate 78.7
= 1 1150 95:1 57.5 1 98s 78.7
= 4 1154 93:5 57.84 1 996 78.8
+4 27 1181 97.7 $8 7 993 79.4
Ht 3 1184 97:9 $8.1 2 993 79.5
> ? 1191 9e's 58.6 3 998 79.8
zs 1 1192 98:6 58.7 1 399 79.8
72 1 2193 - 98:7 58.8 2 1001 80.0
84 8 1201 99.3 s9 3 1004 80.3
98 3 1204 99-6 - 59.5 2 1006 80.3
364 ) 1209 100.0 59.9 1: 1007 80.5
. 60 sO: 1057 84.5
| BEST copy AvMaBe
402 403
Table $ (cont'«. Hy Table 6
Average Fire * Cumulative Cumulative
Hours on Duty Number of Number of ~~ % of Total
per Week Cities Cities (1251) STATES HAVING LAWS REGULATING FIREFIGHTERS’ HOURS
60.1 2 1059 84.7
ans : nny aes Alabama New Hampshire
61. 2 1063 85.0 *Arkansas *New Jerscy
a : eas os Georgia *North Dakota
61.4 1 1067 85.3 Dlinois Ohio
ro : ; °, 1071 as Indiana Oregon
62.5 2 - 1096 86.0 Kentucky *Pennsylvania
63 2 “ 132 ' $9.9 *Maine , *South Dakota
63.3 > | dies 89.8 *Michigan *Texas
63.4 2 1126 90.0 *Montana Wisconsin
63.5 1 1127 90.1
64 4 1131 90.4
64.3 1 1132 90.5 « *Statute attached.
65 nig 1133 90.6
65.3 1 113% 90.6 eee
65.9 1 1135 90.7 °
65 19 1154 92.2
66.2 : ort ces STATES HAVING NO LAWS REGULATING FIREFIGHTERS’ HOURS
66.3 ‘
66.4 1 1157 92.5
67 3 1160 92.7 Arizona ; New Mexico
= . , re red 93.6 California North Carolina
67.5 1 1174 93.8 Coloracio Oklahoma
68 3 1177 94.
38.1 ; 5398 : 94:3 Florida South Covetine
. = 3:3 —— : _—
: nsas
70. . 4 “
70.5 1 as 24 r Minnesota Virginia
185 4.
o1.3 : tr +g Mississippi Washington
72 47 1233 98.6 Missouri ; Wyoming
72.5 1 1234 98.6
72.6 1 1235 9817 -
73 1 1236 98.8
73.1 1 1237 98.9
73.5 1 1238 99.0
78 2 1240 99.1
78.4 2 1242 99.3
78.5 1 1243 : 99.4
84 7 1250 , 99.9
96 1 1251 100.0
404
[Statutes Regulating Firefighters’ Hours—Attached to
Letter from D. Slater, National League of Cities to W.
Landis, Wage and Hour Division, Department of Labor,
7-5-74]
ARKANSAS
19-2102. Appointment of firemen in first class cities
[ Repealed. ]
Repeal.
This section (Act Mar. 21, 1885, No. 67, § 2 (Ist
par.), p. 92; Feb. 27, 1893, No. 42, § 1 (3rd sentence), p.
64; C. & M. Dig., § 7709; Pope’s Dig. § 9878) was
repealed by Acts 1953, No. 554, § 1.
19-2103. Hours of service.—In all cities of the first
class, as shown by the last Federal Census, and all
subsequent censuses, which maintain or may hereafter
maintain an organized paid, or part paid fire department,
no employee of such department shall be compelled to be
on duty more than fourteen [14] consecutive hours,
except when changing from one tour of duty to the
other, or in case of an epidemic among the members of
the department, or a conflagration requiring the service
of more than one-half [%] of the force of the
department. [Acts 1923, No. 135, § 1, p. 115; Pope’s
Dig., § 9852.]
19-2104. Two Platoons — Arrangement of hours —
Maximum hours per week — Exceptions — Epidemics,
conflagrations or emergencies. — The uniformed force of
the fire department shall be divided into two (2)
platoons. The officers and members assigned to which
shall alternate on tours of duty at intervals of not more
than fifteen (15) days.
The head or chief officer of the fire department shall
so arrange the working hours of the employees of such
fire department so that each employee shall work, as near
as practical, an equal number of hours per month; but
not to exceed seventy-two (72) hours per week: provided
that the head or chief officer of such department, may at
his discretion, in case of an epidemic, conflagration, or
405
such emergency, require such employees for a greater
period than herein provided to continue on duty during
such epidemic, conflagration or like emergency. [Acts
1923, No. 135, §2 p. 115; Pope’s Dig., § 9853; Acts
1947, No. 240, § 1, p. 512; 1957, No. 157, § 1, p. 481.]
Compiler’s Note.
A last paragraph of this section was held
unconstitutional in Mankin v. Dean (1958), 228 Ark.
752, 310 S. W. (2d) 477. Such paragraph read, *‘Provided
that in cities or towns having a commission form of
government with a full paid fire department, no member
of the fire department in such city or town shall be
required to be on regular duty more than an average of
fifty-six (56) hours per week computed annually over the
city’s fiscal year or any unexpired portion thereof;
provided, further, that said members of said fire
departments, excepting administrative and maintenance
personnel, shall perform their duties in twenty-four (24)
hour shifts; and provided further that there shall be no
reduction of salaries or rates of pay of members of said
fire departments because of the number of hours
prescribed in this Act as constituting the average work
week of regular duty.”
Amendments.
The 1947 amendment inserted the provision limiting
the number of hours per week.
The 1957 amendment added a paragraph which was
held unconstitutional. See compiler’s note.
Emergency.
Section 2 of Acts 1947, No. 240, read: “It is found
that firemen have been working an excessive number of
hours each week and that this condition should be
corrected in the interest of public safety. An emergency
is therefore declared to exist and this act shall be in full
force and effect from and after its passage and approval.”
Approved March 18, 1947.
406
CHAPTER 21—FIRE DEPARTMENT
SECTION.
19-2104.1. Cities with population of 15,000 or
more—Equal number in platoons—Maximum hours—No
reduction of salary—Epidemics, conflagrations or
emergencies.
19-2106.1. Reimbursement for use of equipment
beyond corporate limits.
19-2106.2. Liability for damages outside corporate
limits.
19-2104.1. Cities with population of 15,000 or more —
Equal number in Platoons — Maximum hours — No
reduction of salary — Epidemics, conflagrations or
emergencies. — Irrespective of the provisions of Section 2
[§ 19-2104] of Act 135 of 1923, as amended, the
uniformed force of fire departments in cities of the State
of Arkansas having a population of fifteen thousand
(15,000) or more, according to the latest official United
States Census shall be divided into platoons. The
responsible chief officer of the Fire Department in cities
of this State affected by this Act shall assign as near as
practicable, an equal number of employees of said
department to each platoon, so that each employee shall
work, as near as practicable, an equal number of hours
per month, but not to exceed an average of fifty-six (56)
hours per week for each period of three weeks. Provided,
that there shall be no reduction of salaries of employees
of said fire departments because of the number of hours
worked during each week as provided herein. Provided,
further, that the head or chief officer of such department
may, at his discretion, in case of an _ epidemic,
conflagration or like emergency, require such employee
407
to continue on duty for a greater period than herein
provided, during such epidemic, conflagration or like
emergency. [Acts 1969, No. 326, § 1, p. 981; 1973, No.
278, § 1, p.-.]
Compiler’s Note.
This section was also amended in 1973 by Acts 1973,
ch. 151 which act was repealed by Acts 1973, No. 278, §
3.
Amendment.
The 1973 amendment in the second sentence
substituted “an average of fifty-six (56) hours” for “64
hours” and inserted “for each period of three weeks’”’ at
the end of the sentence.
Repealing Clause.
Section 3 of Acts 1969, No. 326 repealed all laws and
parts of laws in conflict therewith.
Section 3 of Acts 1973, No. 278, read: “Act 1951 of
1973 is hereby repealed.”
Separability.
Section 2 of Acts 1969, No. 326, read: “If any
provision of this Act or the application thereof to any
person or circumstance is held invalid, such invalidity
shall not affect other provisions or applications of the
Act which can be given effect without the invalid
provision or application, and to this end the provisions of
this Act are declared to be severable.”
Effective Date.
Section 2 of Acts 1973, No. 278 provided that § | of
the act should become effective on July 1, 1973.
408
Emergency.
Section 4 of Acts 1969, No. 326, read: “It is hereby
found and determined by the General Assembly that the
maximum work week for firemen is prescribed by law as
72 hours per week; that a work week of 72 hours is
unduly long and that firemen cannot give the best service
to the people of this State when required to work 72
hours per week; that the maximum work week of firemen
in certain cities must be reduced in order that such
firemen can provide the best possible fire protection to
the residents of such cities; and that this Act is
immediately necessary to correct this _ situation.
Therefore, an emergency is hereby declared to exist and
this Act being necessary for the immediate preservation
of the public peace, health and safety shall be in full
force and effect from and after its passage and approval.”
Approved March 26, 1969.
Section 4 of Acts 1973, No. 278 read: “The General
Assembly finds that the maximum work week of firemen
in certain cities, which is presently 64 hours per week,
must be reduced in order that such firemen can provide
the best possible fire protection to the residents of such
cities; that Act 151 of 1973 did reduce said maximum
work week to 56 hours per week, but that the immediate
effectiveness of said Act 151 of 1973, caused by the fact
that said Act 151 contained an emergency clause, has
presented the cities to which said Act 151 applies with a
financial problem for which they had not budgeted, and
which they need time to meet. It is necessary, therefore,
that said Act 151 of 1973 be immediately repealed and
replaced by this Act. An emergency is therefore declared
409
to exist, and this Act being necessary for the public
peace, health, and safety, shall be effective immediately
upon its passage and approval.’’ Approved March 9, 1973.
19-2106.1. Reimbursement for use of equipment
beyond corporate limits.—-When the organized fire
department of a city or town combats a fire beyond the
corporate limits of the city or town, a reasonable effort
must be made for ninety (90) days to obtain
compensation or reimbursement for such services from
the property owner involved. However, if the city or
town is unable to obtain payment or reimbursement from
the property owner for such services within the ninety
(90) day period, the county wherein said property is
located may reimburse the municipality for such service
in an amount not to exceed two hundred dollars ($200).
[Acts 1973, No. 114, § 1, p. —.]
19-2106.2. Liability for damages outside corporate
limits.—Neither the municipality nor any municipal
official or fire department official or employee involved
in combatting the fire shall be liable for any damages or
loss that occurs while the fire department is combatting
the fire outside the corporate limits of the city or town.
Provided further however, that the fire fighter [ fighters]
shall have the same coverage as they now have if they are
injured while outside the city limits. [Acts 1973, No.
114, §2, p. —.]
MAINE
Ch. 7, Sec. 663
7. Minimum wage for firemen. Members of municipal
fire fighting departments, other than volunteer or
410
call-departments, who are paid salaries or regular wages,
are deemed to be employees within the meaning of this
section and are covered by this subchapter. Firemen’s
wages may be paid by the municipality based upon the
average number of hours worked during any one work
cycle which is not to exceed 12 weeks in duration.
However, 12 times the hourly rate shall not be paid for
all work done over 48 hours under this subsection (1965,
c. 399, § 1.) (1967, c. 385.)
* * *
MICHIGAN
Act No. 78, Public Acts of 1973 -— Approved by
Governor July 31, 1973
ENROLLED HOUSE BILL NO. 4609
AN ACT to amend section 2 of Act No. 125 of the
Public Acts of 1925, entitled “An act to regulate the
hours of labor of employes in the fire departments of
municipalities, and providing penalties for the violation
thereof,” being section 123.842 of the Compiled Laws of
1970.
The People of the State of Michigan enact:
Section |. Section 2 of Act No. 125 of the Public Acts
of 1925, being section 123.842 of the Compiled Laws of
1970, is amended to read as follows:
Section 2. The provisions of section | shall not apply
(a) To the chief officer or the assistant chief officer in
command of the fire department of a municipality.
411
(b) To employees of a fire department who are
employed subject to call.
(c) To the members or employees of a fire department
when required to remain on duty by the chief officer of
such department, his aides or assistants, in cases of public
necessity arising from great conflagration, riot, flood,
epidemic of pestilence, or disease, necessary absence of
regularly employed men due to military service, or for
disciplinary measures.
(d) To the members of any volunteer fire department.
(e) To any municipality which, by agreement with the
collective bargaining agent representing affected
employees, does not require its employees engaged in fire
fighting or subject to the hazards thereof, to be on duty
more than 40 hours in any consecutive 7-day period.
This act is ordered to take immediate effect.
(40)
Act 125, 1925, p. 166; Eff. Aug. 27.
AN ACT to regulate the hours of labor of employes in
the fire departments of municipalities, and providing
penalties for the violation thereof.
The People of the State of Michigan enact:
123.841 Fire department employees; period of duty;
days off duty; work hours per week.
Sec. 1. It shall be unlawful for any municipality, or
any officer or employee thereof, in municipalities which
maintain or may hereafter maintain an organized paid or
part-paid fire department, to require any person in the
employ of the fire department who is engaged in fire
fighting or subject to the hazards thereof to be on duty in
such employment more than 24 hours, or to be off duty
412
less than 24 consecutive hours out of any 48-hour period.
All persons in the employ of any organized paid or
part-paid fire department who are engaged in fire fighting
or subject to the hazards thereof shall be entitled to an
additional 24 consecutive hours off duty in every 12-day
period, beginning July |, 1966, thereby requiring firemen
to work not more than an average of 63 hours per week,
and effective July 1, 1967, an additional 24 consecutive
hours off duty in every 6-day period, thereby requiring
firemen to work not more than an average of 56 hours
per week.
HISTORY: CL 1929, 2725;—Am. 1937, p. 49, Act 38,
Eff. Oct. 29;-Am. 1941, p. 65, Act 57, Eff. Jan. 10,
1942;—-Am. 1947, p. 632, Oct. 335, Eff. Oct. 11;—CL
1948, 123.841;—Am. 1965, p. 151, Act 115, Eff. Mar.
31, 1966.
123.842 Persons Exempt.
Sec. 2. The provisions of section | shall not apply
(a) To the chief officer or the assistant chief officer in
command of the fire department of a municipality;
(b) To employees of a fire department who are
employed subject to call;
(c) To the members or employees of a fire department
when required to remain on duty by the chief officer of
such department, his aids or assistants, in cases of public
necessity arising from great conflagration, riot, flood,
epidemic of pestilence or disease, necessary absence of
regularly employed men due to military service, or for
disciplinary measures; nor
(d) To the members of any volunteer fire department.
HISTORY: CL 1929, 2726;—Am. 1937, p. 49, Act 38,
Eff. Oct. 29,-Am. 1947, p. 632, Act 335, Eff. Oct.
11,—CL 1948, 123.842.
413
123.843 Penalty for violations
Sec. 3. Any officer or employe or agent of such
municipality who shall require any employe or other
person in any such fire department, save as hereinbefore
excepted in section 2 of this act, to be on duty in such
employment for a longer time than that hereinbefore
provided, or to be off duty for a lesser time than that
hereinbefore provided, shall be guilty of a misdemeanor
and on conviction thereof shall be punished by a fine of
not more than 100 dollars or by imprisonment in the
county jail for not more than 3 months, or by both such
fine and imprisonment.
HISTORY: CL 1929, 2727,—CL 1948, 123.843.
Sec. 4. (This was a repeal section.)
HISTORY: CL 1929,2728;—Rep. 1945, p. 406, Act
267, Imd. Eff. May 25.
MONTANA
11-1931. Hours of work of members of paid fire
departments in cities of first class. The city council, city
commission, or other governing body in cities of the first
class, shall divide all members of the paid fire department
into platoons of three shifts. The members of each shift
shall not be required to work or be on duty more than
eight (8) hours of each consecutive twenty-four hours,
except in the event of a conflagration or other similar
emergency when such members or any of them may be
required to serve so long as the necessity therefor exists.
Each member shall be entitled to at least one (1) day off
duty out of each eight-day period of service without loss
of compensation.
11-1934. Hours of work of members of paid fire
departments in second class cities. The city council, city
414
commission, or other governing body in cities of the
second class, shall divide all members of the paid fire
department into platoons of three shifts. The members of
each shift shall not be required to work or be on duty
more than eight (8) hours of each consecutive
twenty-four hours, except in the event of a conflagration
or other similar emergency when such members or any of
them may be required to serve so long 4s the necessity
therefor exists. Each member shall be entitled to at least
one (1) day off duty out of each eight-day period of
service without loss of compensation.
History: En. Sec. 1, Ch. 136, L. 1939.
Collateral References
Municipal Corporations 194.
62 C.J.S. Municipal Corporations § 600.
NEW JERSEY
40A:14-46 Two-platoon system in_ certain
municipalities having a paid fire department and force.
The governing body of a municipality, having a paid
fire department and force, by resolution, may divide the
members and officers of such department and force into
2 platoons, one platoon serving 24 hours of duty while
the other is off duty for the same period of time.
Source: R.S. 40:47-—38.
40A:14-47 Two-platoon system for fire department in
certain municipalities; establishment; referendum.
In municipalities, except cities of the first class,
wherein a proposal for a 2-platoon system shall have been
adopted the governing body of the municipality, or the
415
board or officer in charge of a paid or part-paid fire
department and force, shall divide the paid members and
officers of the said department and force into 2 platoons,
one designated as a day force, the other as a night force.
Each force, respectively, shall alternate the hours of duty
on every fourth day. The hours of duty of the day force
shall be from 8:00 A.M. to 6:00 P.M. and the night force
from 6:00 P.M. to 8:00 A.M. the following morning,
except that on every fourth day, for the purpose of such
alternation the number of said hours of duty may be
exceeded but one force shall be off duty at all times,
except as otherwise provided by law.
The 2-platoon system shall be inoperative unless and
until a proposal for such a system shall have been
submitted to and adopted by the legal voters of the
municipality at a primary or general election or at an
election held for that purpose. It may be submitted as a
public question, in the manner prescribed by law, by
resolution of the governing body, or by filing with the
governing body of the municipality a petition for such
submission signed by at least 10% of the legal voters of
the municipality in substantially the following form:
“(Insert the name of the municipality and state the
question.)” The ballot shall contain 2 squares to the left
of the question, one with the word “Yes’’, the other with
the word “No”, respectively, to the right thereof. The
ballot shall also contain instructions to voters to vote by
marking a cross (X), or plus sign (+) or check mark ( i+)
in the square according to their choice. If voting
machines are used a vote of “Yes” or “No” shall be
equivalent to such markings, respectively.
The municipal clerk shall forthwith canvass the returns
of the election and shall certify the results thereof to the
416
governing body of the municipality. If a majority of the
legal voters voting on the question shall vote “Yes’’, the
2-platoon system shall become operative and the
governing bedy or the board or officer in charge of said
paid or part-paid fire department and force shall then
proceed to establish such system.
This section shall not be Construed to repeal or modify
in any form any existing law relating to salaries, annual
vacations, sick or disability leave of any of the members
or officers of the paid or part-paid fire department or
force.
Source: R.S. 40:47-39; 40:47-40 amended 1938, c. 276;
40:47-42; 40:47-43; 40:47-44; 40:47-45: 40:47-46:
40:47-47; 40: 174-66; 40:174-67: 40:174-68: 40:17469:
40:174-70; 40:174-71; 40:174-72.
40A:14-48 Two-platoon system for fire department in
cities of the first class: emergency service: compensatory
time off.
In cities of the first class, the governing body, by
resolution, or the board of fire commissioners or officials
in charge of a fire department and force, may divide the
-members and officers of such fire department and force
into 2 platoons, one serving while the other is off duty.
Each platoon, respectively, shall alternate the hours of
duty for the purpose of alternating the day force with the
night force and vice versa, and for the purpose of giving
each platoon 24 hours off duty every 6 days. The hours
of duty of the day force shall be from 8:00 A.M. to 6:00
P.M. and the night force from 6:00 P.M. to 8:00 A.M. the
following morning.
In cases of conflagration or other emergency the
officials in charge of the fire department and force shall
have authority to retain on duty any or all members and
:
2
a
4
417
officers of such department and force during the period
of the emergency, but in any such case and within 12
months thereafter, such members or officers shall be
given a day or proportion thereof off for extra time so
served by them during the emergency. |
Nothing contained herein shall be deemed to repeal or
modify existing laws relating to salaries, annual vacations
or sick or disability leaves of the members or officers of
such department or force.
Source: R.S. 40:174-132; 40:174-133; 40:174-134;
40:174-135; 40:174-136; 40:174-137; 40:174-138;
40:174-139; 40:174-140.
40A:14-49 Fifty-six hour week for members and
officers; referendum.
The governing body of any municipality, by ordinance,
may adopt a schedule of hours of actual duty for the
members and officers of a paid or part-paid fire
department and force based upon an average of 56 hours
per week in any 6-week cycle, but in cases of emergency
the officials in charge shall have authority to retain any
uniformed member or officer on duty during the period
of the emergency, and in any such case and within 12
months thereafter such member or officer shall be given
hours off from the average of 56 hours per week in any
6-week cycle to compensate him for the extra hours
served by him during such emergency.
Any such ordinance shall be inoperative unless and
until it shall be submitted to and adopted by the legal
voters of the municipality at a primary or general election
or an election held for such purpose.
Said adoption may be submitted as a public question
in the manner prescribed by law, by resolution of the
governing body or by filing with the governing body a
418
petition for such submission, signed by at least 10% of
the registered voters of the municipality. The question
shall be submitted substantially on the ballot as follows:
Insert the name of the municipality and state the
question. “Shall the ordinance providing that the
uniformed members and officers of its fire department
and force shall be maintained in such manner as to
provide that no member or officer thereof shall be
required to remain on duty in excess of 56 hours per
week in any 6-week cycle except in cases of emergency
be adopted?”
If a majority of the legal voters voting on such
question vote in favor of the adoption, the ordinance on
and after January | following such election shall become
operative.
Source: C, 40:47-47.2 (1948, c. 73, s. | amended 1949,
c. 100, s. 2): C. 40:47-47.3 (1948, c. 73. s. 2 amended
1949, c. 100, s. 3): C. 40:47-47.4 (1948, c. 73, s. 3
amended 1949, c. 100, s.4).
* * *
NORTH DAKOTA
GENERAL PROVISIONS
34-01-08 Maximum hours for cities in this state having
a population of five thousand or more inhabitants shall
work for such city more than eight hours in any one day
or more than fifty-six hours in any one week except in
case of emergency. This section shall not apply to a
public officer who is elected to his said office, nor to
members of the police force, nor to the members and
employees of the fire department, nor to the head of any
department of the city.
419
Source: S.I., 1935, ch. 201, § 1; 1937, ch. 177, § 1;
R.C. 1943, § 34-0108.
Cross-Reference.
Civil Service for city employees, see ch. 40-44.
Collateral References.
Labor Relations 1367, 1379.
48 Am. Jur. 2d, Labor and Labor Relations, § 1863.
51B C.J.S. Labor Relations, § 1197; 56 C.J.S. Master
and Servant, § 17.
34-01-09. Violation of hours of employment for city
employees — Penalty. — Any employee who shall
willfully violate section 34-01-08, and any city officer
and any member of any board, bureau, or commission
having charge of or supervision over the employment of
any such employee who shall require such employee to
violate such section, is guilty of a misdemeanor and shall
be punished by a fine of not less than ten dollars nor
more than one hundred dollars, or by imprisonment in
the county jail for not more than thirty days, or by both
such fine and imprisonment.
Source: S.L. 1935, ch. 201, § 2; 1937, ch. 177, § 2;
R.C, 1943, § 34-0109.
34-01-09.1. Maximum hours of labor. — No employee,
other than the chief of a fire department in any city of
North Dakota with a population of twenty thousand or
more inhabitants, shall be required to work more than
one hundred and forty-four hours in any two-week
period but shall be subject to call while off duty in case
of emergency not to exceed more than one hundred and
forty-four hours in this two-week period. Any person
who shall violate any provision of this section shall be
guilty of a misdemeanor and shall be punished by a fine
420
of not less than twenty-five dollars nor more than one
hundred dollars.
Source: S.L. 1949, ch. 223, §§ 1, 2; R.C. 1943, 1957
Supp., § § 34-01091, 34-01092.
Note.
The provisions of section 34-01-09.2 have been
combined with this section.
Collateral References.
Labor Relations 1351-1420.
48 Am. Jur. 2d, Labor and Labor Relations, §§
1838-1865,
51B C.J.S. Labor Relations, §§ 1186-1209; 56 C.J.S.
Master and Servant, § § 14-17.
Beauty Shops, control of hours of work by statute or
ordinance regulating, 56 ALR 2d 892.
34-01-09.2. Penaity.—Repealed by omission from this
code.
Note.
The provisions of this section have been combined
with section 34-0!1-09.1.
PENNSYLVANIA
THIRD CLASS CITY CODE OF PENN.
53 PURDON’S STATUTES 37103
Section 2103. Platoon System; Hours of Service;
Vacation; Sick Leave.—The director of the department
having charge of the fire bureau in each city shall divide
the officers and members of companies of the uniformed
421
fire force in the employ of such cities, and any other
firemen and drivers regularly employed and paid by the
city, excepting the chief engineer and assistant chiefs, and
those employed subject to call, into two bodies or
platoons to perform service during such hours as the
director shall fix, except as herein otherwise provided.
The hours of day service shall not exceed ten,
commencing at eight o’clock in the morning, the hours of
night service shall not exceed fourteen, commencing at
six o’clock in the afternoon; and the hours of day service
shall not exceed fifty hours in any one calendar week,
and the hours of night service shall not exceed seventy
hours in any one calendar week, unless the hours of day
and night service shall be equalized, in which case neither
the hours of day or night service shall exceed fifty-six in
any one calendar week: Provided, That for the duration
of any war in which the United States is engaged, and six
months thereafter, the hours of service may exceed the
number hereinbefore provided as the maximum number
of hours of service, and in such cases, council shall
provide for the payment of extra compensation for any
hours of service, at the same rate as paid for regular
service in excess of such maximum hours of service. The
employes of such fire forces shall be allowed to have at
least twenty-four consecutive hours of rest in every
calendar week, to have an annual vacation of not less
than fourteen working days, and shall be entitled to
twenty-one days sick leave annually without diminution
of the salary or compensation fixed by ordinance. In
those instances in which sick leave exceeds four days at
any one time, it shall be necessary for the employe to
present evidence satisfactory to the director of the
department showing either injury, hospitalization, or
422
illness attended to by a physician. In cases of riot, serious
conflagration, times of war, public celebrations, or other
such emergency, the chief engineer of the bureau of fire,
or the assistance chief deputy, or chief officer in charge
at any fire shall have the power to assign all the members
of the fire force to continuous duty, or to continue any
member thereof on duty, if necessary. No member of any
of said shifts, bodies or platoons shall be required to
perform continuous day service or continuous night
service for a longer consecutive period than two weeks,
nor be kept on duty continuously longer than ten hours
in the day shifts, bodies or platoons or fourteen hours in
the night shifts, bodies or platoons, excepting as may be
necessary to equalize the hours of duty and service, and
also excepting in cases of emergency, as above provided.
(Amended July 19, 1957, P.L. 1012.)
Section 2104. Fire Marshal; Powers. — Every city may,
by ordinance, provide for the creation of the office of
fire marshal who shall be appointed by the mayor, by and
with the approval and consent of council, biennially. The
fire marshal and his assistants, if council shall provide for
such assistants, shall inspect all constructions or buildings
within the city or upon property owned or controlled by
the city or a municipality authority of the city within the
Commonwealth, whether public, private, or business, and
shall enforce all laws of the Commonwealth and
ordinances of the city relating to such constructions or
*x* *k *
423
SOUTH DAKOTA
CLASSIFICATION AND CONDITIONS
OF EMPLOYMENT 3-6-18
duties of employees, within the time designated, the
classifications, the minimum essentials of efficiency, the
uniform system of efficiency ratings, the equitable salary
scale, the plan for pooling and transferring clerks,
stenographers, clerical assistants, and common and skilled
laborers, and the plan for co-ordination of duties of
employees, submitted by the director of employment
shall thenceforth be in full force and effect. Such
classifications, minimum essentials of efficiency, uniform
system of efficiency ratings, equitable salary scale, plan
for pooling and transferring clerks, stenographers, clerical
assistants, and common and skilled laborers and plan for
co-ordination of duties of employees shall continue in
force and effect until amended or revised by a majority
vote of the board of finance at any regular meeting.
Source: SL 1927, ch 73; SDC 1939, 55.2701 (9).
Cross-Reference. .
Rules and regulations, procedure for adoption, §§
1-26-2 to 1-26-14.
3-6-17. Maximum hours of duty for pubuc employees
— Special provision for city firemen. — No employee of
the state or any of its political subdivisions, nor of any
municipal corporation shall be employed more than eight
hours in any day, nor more than forty-eight hours in any
calendar week except in case of unavoidable emergency,
and except that full-time employees of city fire
departments shall have their own hours of employment
governed by a mutual agreement with respective
424
municipal corporations and shall not exceed one hundred
twelve hours during a fourteen-day period.
Source: SL 1933 (SS), ch 10, § 2; R.C. 1939, §
17.0103; SL 1949, ch 75,—; 1951, ch 93, § 1; 1959, ch
100; 1966 ch 63, § 12.
Cross-References.
Legislative employees, hours of duty, § 2-5-7.
Record of attendance for state employees, § 3-6-11.
Workmen’s Compensation Computation.
Statute which fixes maximum number of hours public
employee may be required to work is not applicable in
computing daily wage under workmen’s compensation
statute. Millage v. Canton Township (1949) 73 SD 26, 38
NW 2d 755.
Opinions of Attorney General.
“Emergency” as applied to circumstances arising at
Yankton state hospital, Report 1949-50, p. 209.
Not unlawful to employ in excess of eight hours,
permitted in emergency cases, Report 1955-56, pp.
278, 318.
Overtime pay permitted when caused by unavoidable
emergency, Report 1943-44, p. 150; 1955-56, p. 299.
Overtime pay permitted when employee works hours
beyond those contemplated at time of employment,
Report 1943-44, p. 215.
3-6-18. Public officers and agricultural workers exempt
from restriction on hours.—Nothing in § 3-6-17 shall be
construed to apply to public officers elected or appointed
as*such forany specific term or part of a term.
425
TEXAS
Art. 1269p CITIES, TOWNS AND VILLAGES Title 28
Art. 1269p. Hours of labor and vacations of firemen and
policemen in certain cities.
Cities over 25,000; hours of labor
Section 1. No member of any fire department or police
department in any city of more than twenty-five
thousand (25,000) inhabitants shall be required to be on
duty more than six (6) days in any one week.
Exception for emergencies
Sec. 2. The preceding subdivision shall not apply to
cases of emergency.
Cities over 30,000; vacations
Sec. 3. Each member of any such departments in any
city of more than thirty thousand (30,000) inhabitants
shall be allowed fifteen (15) days vacation in each year
with pay; provided that the provisions of this Section of
this Act shall not be applied to any member of any such
department in any city of more than thirty thousand
(30,000) inhabitants unless such member shall have been
regularly employed in such department or departments
for a period of at least one (1) year.
Number of vacation days and holidays
Sec. 3a. Firemen and Policemen shall have the same
number of vacation days and the same number of
holidays, or days in lieu thereof, that is granted to other
municipal employees.
Federal Census
Sec. 4. Each preceding Federal Census shall determine
the population.
426
Designation of vacation days and holidays
Sec. 5. The city officials having supervision of the fire
department and police department shall designate the
days of the week upon which each such member shall not
be required to be on duty, and the days upon which each
such member shall be allowed to be on vacation.
Cities over 10,000; hours of labor
Sec. 6. It shall be unlawful for any city having more
than ten thousand (10,000) inhabitants but not more
than sixty thousand (60,000) inhabitants, according to
the last preceding Federal Census, to require or permit
any fireman to work more than seventy-two (72) hours
during any one calendar week. It shall be unlawful for
any city having more than sixty thousand (60,000)
inhabitants but not more than one hundred twenty-five
thousand (125,000) inhabitants, according to the last
preceding Federal Census, to require or permit any
fireman to work more than an average, during a calendar
year, of sixty-three (63) hours per week. It shall be
unlawful for any city having more than one hundred
twenty-five thousand (125,000) inhabitants, according to
the last preceding Federal Census, to require or permit
any fireman to work more than an average, during a
calendar year, of sixty (60) hours per week.
Provided further, that in any city having more than ten
thousand (10,000) inhabitants, according to the last
preceding Federal Census, the number of hours in the
work week of members of the fire department whose
duties do not include fighting fires, including but not
limited to mechanics, clerks, investigators, inspectors, fire
marshals, fire alarm dispatchers and maintenance men,
shall not exceed the number of hours in the normal work
week of the majority of the employees of said city other
than firemen and policemen.
427
Provided further, that in computing the hours in the
work week of firemen subject to the provisions of the
preceding paragraph, there shall be included and counted
any and all hours during which such firemen are required
to remain available for immediate call to duty by
continuously remaining in contact with a fire department
office by telephone or by radio.
Provided, however, that in any such city having more
than ten thousand (10,000) inhabitants, in the event of
an emergency, firemen may be required to work more
than the maximum number of hours herein provided; and
in such event firemen working more than the maximum
hours herein provided shall be compensated for such
overtime at a rate equal to one and one-half times the
compensation paid to such firemen for regular hours.
Cities over 10,000; overtime
Sec. 6A. It shall be unlawful for any city having more
than ten thousand (10,000) inhabitants, according to the
last preceding Federal Census, to require or permit any
policeman to work more hours during any calendar week
than the number of hours in the normal work week of
the majority of the employees of said city other than
firemen and policemen.
Provided, however, that in any such city having more
than ten thousand (10,000) inhabitants, in the event of
an emergency, policemen may be required to work more
than the number of hours in the normal work week of
the majority of other city employees; and in the event
policemen are ordered to work a greater number of hours
than the number of hours in such normal work week of
other city employees, such policemen shall be
428
compensated for any such overtime at a rate equal to one
and one-half times the compensation paid to such
policemen for regular hours.
Effectiveness of Act
Sec. 6B. The governing body of each city which comes
under the provisions of this Act' shall put into effect the
provisions hereof, without referendum or election, on or
before the first day of the next fiscal year of such city
after the effective date of this Act.
Working extra hours
Sec. 7. The provisions of this Act shall not be
construed to prevent firemen and policemen from
working extra hours when exchanging hours of work with
each other with the consent of the department head.
Penalty
Sec. 8. The city official having charge of the fire
department or police department in any such city who
violates any provision of this Act shall be fined not less
than Ten ($10.00) Dollars nor more than One Hundred
($100.00) Dollars, and each day on which said city
official shall cause or permit any Section of this Act to be
violated shall constitute and be a separate offense.
429
Defendant’s Exhibit No. 5
CITY OF LOMPOC CALIFORNIA
CITY HALL
119 WEST WALNUT AVENUE
TELEPHONE REgent 6-1 261
September 27, 1974
Mr. Charles S. Ryhne
National Institute of Municipal
Law Officers
839 17th Street, N.W.
Washington, D.C. 20006
Dear Mr. Ryhne:
I note that you have been retained as Chief Counsel for
the National League of Cities to take on the 1974 Fair
Labor Standards Act as it applies to the states or local
governments.
I have been fighting what I consider to be a lonely
skirmish on this battleground. The attached materials
document my point. To put it bluntly the Department of
Labor, in its approach to compensatory time, is flat
wrong and will not condescend to think about changing
its position but instead cites a case which does not apply
to compensatory time.
So far as I am concerned this City is going to continue
to pay compensatory time and if the Department of
Labor objects we will win the point in court.
You may find that the point I urge is of some
persuasive value in your case. I presume your case will be
430
one of urging states’ rights, and my point indicates what
kind of a right is interfered with: i.e. the right for a
public employee and his employer to decide upon
compensatory time as compensation for labor.
I will be in San Diego 7th and 8th if you wish to
discuss the point further.
Very truly yours,
/s/ Alan Davidson
ALAN DAVIDSON
City Attorney
June 3, 1974
U.S. Department of Labor
Washington, D.C.
ATTENTION: Assistant Secretary Bernard E. Delury
Gentlemen:
We understand that it is the interpretation of the
Department of Labor that under the 1974 Fair Labor
Standards Act that cities may no longer. give
compensatory time to employees who have worked
overtime, but must only pay them money. It was our
interpretation of the law that “comp.” time could still be
given, but that at a rate of time and one-half.
If it is the department’s position that only money can
be paid for overtime, we would appreciate its specifying
the section of the Code or Act upon which such an
interpretation is based.
Very truly yours,
ALAN D. DAVIDSON
City Attorney
431
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
WASHINGTON, D.C. 20210
Mr. Alan D. Davidson
City Attorney
119 West Walnut Ave.
Lompoc, California
Dear Mr. Davidson:
Your letter of June 3, 1974 to Assistant Secretary of
Labor Bernard E. Delury has been referred to this office
for a reply. In your letter you question the Department’s
position regarding compensatory time off under the Fair
Labor Standards Act.
The overtime compensation requirements of the Act
are discussed in the enclosed bulletin, Part 778. Section
778.106 indicates that the payment of both the
minimum wage and overtime compensation due an
employee must ordinarily be made at the regular payday
for the period in which the work was performed. An
employer may not credit an employee with
compensatory time (even at a time and one-half rate) for
overtime earned which is to be taken at some mutually
agreed upon later date subsequent to the end of the pay
period in which the overtime was earned, rather than pay
cash for the overtime as it is earned.
However, it is permissible for the employer employing
one at an hourly rate, or at a fixed salary for a fixed
workweek, to lay off the employee a sufficient number
of hours during some other week or weeks of the same
pay period to offset the amount of overtime worked (i.e.
432
at the time and one-half rate) so that the desired wage or
salary for the pay period covers the total amount of
compensation, including overtime for each week taken
separately. Under this method the employer does not
average hours over a period longer than a week. He
controls the earnings by controlling the number of hours
the employee is permitted to work.
If you need additional information, you may wish to
contact ovr office in Room 504, 6777 Hollywood
Boulevard, Hollywood, California 90028, phone
213-472-3181, Ext. 373. The people in that office will be
happy to help you in any way possible.
Sincerely,
/s/ William Hoffman
William Hoffman, Chief
Division of Minimum Wage
and Hour Standards
Wage and Hour Division
Enclosure
433
Section 778.106 Time of Payment.
There is no requirement in the Act that overtime
compensation be paid weekly. The general rule is that
overtime compensation earned in a particular workweek
must be paid on the regular pay day for the period in
which such workweek ends. When the correct amount of
overtime compensation cannot be determined until some
time after the regular pay period, however, the
requirements of the Act will be satisfied if the employer
pays the excess overtime compensation as soon after the
regular pay period as is practicable. Payment may not be
delayed for a period longer than is reasonably necessary
for the employer to compute and arrange for payment of
the amount due and in no event may payment be delayed
beyond the next pay day after such computation can be
made. Where retoactive wage increases are made,
retroactive overtime compensation is due at the time the
increase is paid, as discussed in §778.303. For a
discussion of overtime payments due because of increases
by way of bonuses, see §778.209.
434
CITY OF LOMPOC
CALIFORNIA
CITY HALL
119 WEST WALNUT AVENUE
TELEPHONE REgent 6-1 261
July 16, 1974
William Hoffman
Chief, Division of Minimum Wage
and Hour Standards
Wage and Hour Division
United States Department of Labor
Washington, D. C. 20210
Thanks to your kind reply, we have received the
United States Department of Labor Interpretive Bulletin
No. 788 which is part of Title 29 of the Code of Federal
Regulations relating to overtime compensation. This
interpretive bulletin interpreted the Fair Labor Standards
Act of 1938. It is still being used to interpret the recently
adopted Fair Labor Standards Act of 1974, which added
public employees to this Act.
Section 778.106 covers the question of when payment
for overtime shall be made and quite properly indicates
that payment in cash shall be made at the earliest payday.
Delays are only allowed when computation cannot
immediately be made. This interpretation is most correct
in relating to cash payments because such delayed
payment can be less than full payment, for several
reasons.
This section has been applied to overtime
compensation which compensation will be in the form of
compensatory time (leave from work) at the rate of one
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435
and one-half times the overtime worked. This means
under strict application of section 778.106, and as
reflected in your letter on the subject, that any time and
one-half compensatory time must be given the same pay
period. Because, however, the practical necessities of
scheduling work and workloads do not fit into a
compensatory scheme designed to discharge the
employers obligation in a one or two-week or even
one-month payroll period, the practical application
means that compensatory time cannot be used.
(Compensatory time is given employees at the time of
slack periods.) Slack periods relate to the demands of the
work, not pay theories and practices. The upshot of the
interpretation is that the giving of compensatory time by
public bodies to their employees is effectively prohibited
under the 1974 Act. A review of the provisions of the
1974 Act do not show an intention of Congress to change
the salutary and often practiced granting of
compensatory time to public employees.
There are _ several considerations relating to
compensatory time which should be seriously considered
by the Secretary of Labor:
1. If the employee (whom we are trying to protect)
prefers compensatory time off to money, and many of
them do, he should not be thwarted in the receiving of
such time by rules promulgated by the Department. Such
an important principle should be clearly and exactly
decided by Congress itself.
2. Many jurisdictions have varying work loads but may
not have the money to pay the time and one-half in cash.
To require the jurisdiction to pay money and not be able
to use slack work periods for this compensation is a
consequence not clearly indicated by Congress.
436
Compensatory time off in public employment is 99
percent of the time granted to an employee at his
request, he tacks it onto weekends and vacations.
Compensation time is of great utility to the employer and
the employee alike and should not be thrown out by
these rules.
3. There is no reason why there could not be a
reasonable limit on the granting of compensatory time.
Section 778.106, or a similar section, could provide that
if compensatory time is to be given it shall be given at the
same rate as is overtime pay but must be given within a
reasonable time, i.e., six months or one year.
4. These rules are backing public jurisdictions into a
guaranteed 40-hour week. Such a principle should only
be adopted by Congress, and clearly so. The reason is this:
if the time and one-half is paid in cash the next pay per-
iod, and then three months later a slack period appears
and the employer gives the employee time off, this time
off will be without pay. (If this time off were credited
against the overtime account, it would be with pay.)
Thus, if the employer who has ups and downs in his work
load-must allow employees time without pay because he
doesn’t have the money to pay them at the time, it is
going to be creating a hardship on the employees. They
will have pay periods where they will get large overtime
pay and pay periods where they will get small pay. This
causes hardship and resultant poor employee relations,
with increased union activity and demand for guaranteed
minimum 40-hour weeks. We _ request that the
Department not back public jurisdictions into such a
corner by the inadvertent application of a section relating
to payment in cash.
This is a request that the Secretary of Labor consider
and enter into an adoption of interpretive rules relating
437
to compensatory time used as compensation under the
Fair Labor Standards Act, and that he (or whoever)
specifically either provide that Section 778.106 does not
apply to non-cash payment or adopt a new section
covering the problems raised by the granting of
compensatory time.
This question is not merely the concern of the
undersigned. From materials I have observed, the
National League of Cities has published this
interpretation and I know from experience it is being
followed by most public jurisdictions. I have determined
this is particularly true in California. The problems
caused by applying this section to compensatory time are
immediate and I ask that you move quickly on this
matter.
Yours truly,
/s/Alan D. Davidson
ALAN D. DAVIDSON
City Attorney
438
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
WASHINGTON, D.C. 20210
Alan D. Davidson, Esq.
City of Lompoc
119 West Walnut Avenue
Lompoc, California 93436
Dear Mr. Davidson:
This is in reply to your letter of July 16, 1974,
regarding the Department’s position with respect to
compensatory time-off under the Fair Labor Standards
Act.
There is not much that we can add to that which we
wrote you on July 9, 1974. By its own terms, the Act
requires that overtime compensation be computed and
paid on the basis of each workweek standing alone. This
is a long established principle which has been in effect
since the law’s inception and which has been upheld by
the courts. See the Supreme Court’s opinion in Walling v.
Harnischfeger Corporation, 325 U.S. 427 (1945). That
decision indicates that overtime payments must be made
within the regular pay period, unless for some reason
delay is required to allow the employer to compute
overtime payments. Where delay is unavoidable, payment
must be made as soon as practicable. Neither the
Administrator of the Wage and Hour Division nor the
Secretary of Labor has specific authority to waive this
requirement.
439
There is no indication that Congress, in enacting the
1974 amendments to the Act, contemplated any change
in the requirement that overtime due under the Act must
be paid in cash upon completion of the pay period and
not in the form of compensatory time-off at some
subsequent date.
Sincerely,
/s/ William Hoffman
William Hoffman, Director
Division of Minimum Wage
and Hour Standards
Wage and Hour Division
440
Defendant’s Exhibit No. 6
CITY OF CAPE GIRARDEAU
CAPE GIRARDEAU, MISSOURI 63701
October 15, 1974
Mr. Jack. R. Younce
Area Director
Wage and Hour Division
Department of Labor
Room 563, 210 North 12th Street
St. Louis, Missouri 63101
Mr. James McDonald
Compliance Officer
Room 142, Federal Office Building
Box 554, 339 Broadway
Cape Girardeau, Missouri 63701
Re: Minimum Wage Law Compliance
Gentlemen:
By this letter | must inform you that the City of Cape
Girardeau, Missouri, will not comply in any fashion with
the Fair Labor Standards Act of 1974 and will make
itself available for no audits or inspections of any kind.
After careful consideration and study, it has been
determined that the Fair Labor Standards Act of 1974 is
and shall be treated as being unconstitutional.
It is our every intention and our desire to obey the
law. We take this action very regretfully and after much
441
soul-searching. However, in view of the nature of local
governments, the tradition and growth of local
governments, and the constitutional basis for local
governments, we can take no other action but to deny
the constitutionality of this Act as it applies to our City.
Please be advised, however, that in the event this Act is
ruled to be constitutional, the City of Cape Girardeau, of
course, will comply with the Fair Labor Standards Act of
1974 and will do so fully and immediately. However, we
expect the test case on the Fair Labor Standards Act of
1974 to be decided in favor of States and Local
Governments and against the Federal Congress, i.e.
unconstitutional.
Again, I want to say that we take this action not in an
effort to beat the law or in an effort to break the law, but
because of our considered and counseled opinion that
this Fair Labor Standards Act of 1974 is, in fact, not the
law because of its unconstitutionality.
We will await communication with you on the matter
and if we can further clarify our position in any way,
please feel free to call or contact me.
Very truly yours,
Thomas M. Utterback
City Attorney
442
Defendant’s Exhibit No. 7
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
911 WALNUT STREET — ROOM 2106
KANSAS CITY, MISSOURI 64106
November 20, 1974
KCL:DM:DRB
Mr. Thomas M., Utterback
City Attorney
City of Cape Girardeau
Cape Girardeau, Missouri 63701
Re: Brennan vy. City of Cape Girardeau, Missouri
Dear Mr. Utterback:
Enclosed is a copy of a complaint which we have sent
for filing in the United States District Court at St. Louis,
Missouri. Formal service will be made upon Mr. Lawley in
due course.
Should you so desire, we would be pleased to discuss
the case with you at an early date.
Sincerely,
T.A. Housh, Jr.
Regional Solicitor
By /s/ Donald McCoy
Donald McCoy
Attorney
Enclosure
443
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
PETER J. BRENNAN, )
SECRETARY OF LABOR, )
UNITED STATES
DEPARTMENT OF LABOR, ) CIVIL ACTION
)
Plaintiff, ) FILE NO.
)
v. )
)
CITY OF CAPE
GIRARDEAU, MISSOURI, )
)
Defendant. )
COMPLAINT
Plaintiff brings this action to enjoin defendant from
violating the provisions of section 15(a)(2) of the Fair
Labor Standards Act of 1938, as amended (29 U.S.C. 201
et seq.), hereinafter called the Act, including the restraint
of any withholding of payment of minimum wages and
overtime compensation found by the Court to be due
employees under the Act.
I
Jurisdiction of this action is conferred upon the Court
by section 17 of the Act.
444
Il
Defendant, the City of Cape Girardeau, Missouri, is a
political subdivision of the State of Missouri located in
the county of Cape Girardeau, Missouri, within the
jurisdiction of this Court.
The activities of defendant, a public agency as defined
by section 3(x) of the Act, were, and are, related and
performed through unified operation or common control
for a common business purpose, and have, since May 1,
1974, constituted an enterprise within the meaning of
section 3(r) of the Act.
IV
At all times since May 1, 1974, said enterprise has had
employees handling, selling, or otherwise working on
goods that have been moved in or produced for
commerce and has been a public agency as defined in
section 3(x) of the Act. Said enterprise, therefore, was
and is an enterprise engaged in commerce or in the
production of goods for commerce as defined in section
3(s)(5) of the Act.
Vv
Defendant has violated and is violating the provisions
of sections 6(b) and 15(a)(2) of the Act by failing to pay
to certain of its employees, for their employment in an
enterprise engaged in commerce or the production of
goods for commerce, wages at rates not less than $1.90
per hour since May 1, 1974.
445
VI
Defendant has violated the provisions of section 7 and
15(a)(2) of the Act by employing certain of its
employees in an enterprise engaged in commerce or in the
production of goods for commerce, for workweeks longer
than 40 hours since May 1, 1974, without compensating
said employees for their employment in excess of 40
hours in such workweeks at rates not less than one and
one-half times the regular rates at which they were
employed.
Vil
As a result of the violations alleged in paragraphs V
and VI hereof, defendant has unlawfully withheld and
continues to withhold unpaid minimum wages and
overtime compensation due certain of its employees.
Vill
Defendant has repeatedly and willfully violated the
aforesaid provisions of the Act. A judgment permanently
enjoining and restraining the violations herein alleged
including the restraint of the continued withholding of
unpaid minimum wages and overtime compensation due
defendant’s employees is specifically authorized by
section 17 of the Act.
WHEREFORE, cause having been shown, plaintiff
prays judgment permanently enjoining and restraining
defendant, its officials, agents, servants, employees, and
those persons in active concert or participation with
defendant who receive actual notice thereof, from
violating the provisions of section | 5(a)(2), including the
restraint of any withholding of payments of unpaid
446
minimum wages and overtime compensation found by
the Court to be due to defendant’s employees, together
with interest thereon from the dates when such amounts
became due, and for such other and further relief as may
be necessary and appropriate, and costs.
William J. Kilberg
Solicitor of Labor
T. A. Housh, Jr.
Regional Solicitor
Room 2106, 911 Walnut Street
Kansas City, Missouri 64106
(816) 374-2281
/s/ Donald McCoy
Donald McCoy
Attorney
United States Department of Labor
and
Donald J. Stohr
United States Attorney
Office of the Attorney
1114 Market Street
St. Louis, Missouri 63101
(314) 6224205
By
Michael W. Reap
Assistant United States Attorney
Attorneys for Plaintiff
447
Defendant’s Exhibit No. 8
CAPE GIRARDEAU SOUTHEAST
MISSOURIAN 11-17-74
AUTONOMY OF LOCAL GOVERNMENT
THREATENED BY LABOR REGULATION
BY MAYOR HOWARD C. TOOKE
On Oct. 15, 1974, the City of Cape Girardeau gave
written notice to the Wage and Hour Division of the
Department of Labor that the city believes the
application of the Fair Labor Standards Act to
minicipalities is unconstitutional. This action was not
taken hastily, nor was it taken without full consideration
of the issues involved and the consequences.
At issue in this matter is whether the citizens of this
country in establishing their government and electing
their representatives a
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