EMT Covered By FLSA Section 7(k) Exemption

Ernie Gonzalez was a firefighter/emergency medical technician with the City of Deerfield Beach, Florida from 1999 to 2005. All firefighters that the City employs are cross-trained either as paramedics or EMTs. There are no employees who are either solely firefighters, EMTs, or paramedics. As a result of this training, all employees can respond to any call where the City has the duty to respond, and all uniformed members of the City’s Fire Rescue Department are authorized to engage in fire suppression and provide emergency medical services.

After Gonzalez’s employment with the City was terminated, he brought a lawsuit for unpaid overtime under the Fair Labor Standards Act (FLSA). The heart of Gonzalez’s complaint was that he should be treated as a 40-hour employee rather than covered by the Section 7(k) exemption of the FLSA. Under Section 7(k), which is a partial overtime exemption for employees engaged in fire protection and law enforcement activities, employers need not compensate firefighters for overtime until they work more than the rough equivalent of 53 hours in a seven-day work period.

If the Section 7(k) exemption applied to Gonzalez, he was entitled to no overtime. If, to the contrary, Gonzalez was treated as a 40-hour employee, his work schedule would have resulted in him receiving a large amount of overtime.

Gonzalez’s argument focused on a 1999 amendment to the FLSA dealing with the definition of an “employee in fire protection activities” for the purposes of the Section 7(k) exemption. Under the 1999 language, which became Section 203(y) of the FLSA, an employee is engaged in “fire protection activities” if the employee is trained in fire suppression; has the legal authority and responsibility to engage in fire suppression; is employed by a fire department, fire district, or state; and is actually engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.”

Gonzalez’s argument was that while he met most of the requirements in Section 203(y), he did not have the “legal authority and responsibility to engage in fire suppression.” The Court was ultimately unconvinced by Gonzalez.

The Court observed that Gonzalez “was a uniformed member of the Deerfield Beach Fire Rescue, and he was certified as a firefighter by the State of Florida. It is the Fire Rescue Department’s duty to extinguish fires, and it has the legal authority to do so. Therefore, it is indisputable that when Gonzalez’s supervisors order him to fight fires, he has the legal authority to engage in fire suppression.”

Gonzalez also argued that he did not have the “responsibility” to engage in fire suppression that Section 203(y) requires. The Court rejected this argument as well, noting that “all uniformed members of the City’s Fire Rescue Department are authorized to engage in fire suppression and provide emergency medical services. Gonzalez himself has been ordered to engage in fire suppression on more than one occasion. Gonzalez was issued the standard ‘turnout gear’ that all firefighters wear when responding to fires, and he wore this equipment at all times while serving at fire scenes. Therefore, Gonzalez falls within the Section 207(k) exemption.”

Gonzalez v. City of Deerfield Beach, Florida, 2007 WL 601990 (S.D.Fla. 2007).

The article appears in our April 2007 issue.