Megan K. Mechak
Mon., October 20, 2025
The U.S. Department of Labor’s Wage and Hour Division has issued Opinion Letter FLSA-2025-04, clarifying that “emergency pay” provided to firefighters and other non-exempt city employees must be included in the regular rate of pay when calculating overtime premiums under the Fair Labor Standards Act (“FLSA”).
Background
The inquiry came from a fire fighter/paramedic employed by a Texas city, which has a written policy granting emergency pay during declared emergency periods. Under this policy, designated employees receive an additional half of their regular hourly rate for each hour worked during such periods. The fire fighter argued that this emergency pay should be included in the regular rate used to calculate overtime, as it does not meet any of the statutory exclusions under section 7(e) of the FLSA.
Legal Analysis
DOL agreed, finding that the emergency pay:
- Is not a discretionary bonus: The payment is predetermined by city policy and not made at the sole discretion of the employer at the end of the work period.
- Does not qualify as an excludable overtime premium: It is not contingent on working excess hours, working on weekends or holidays, or working outside regular schedules.
The opinion emphasized that premiums for hazardous or arduous work—like emergency pay—must be included in the regular rate of pay.
Calculation Guidance
To calculate an employee’s regular rate correctly, employers must:
- Determine total straight-time earnings, including emergency pay and other included premiums.
- Divide by total hours worked to find the regular rate.
- Multiply half the regular rate by overtime hours to find the additional premium owed.
Example
An employee earning $20/hour works 50 hours in a week, 20 of which qualify for emergency pay.
- Straight-time earnings: (50 × $20) + (20 × $10) = $1,200
- Regular rate: $1,200 ÷ 50 = $24/hour
- Overtime premium: 10 overtime hours × $12 = $120
- Total pay: $1,320
Conclusion
This opinion reinforces that emergency pay—when predetermined and tied to specific work conditions—must be included in the regular rate for overtime calculations. If you believe your employer has not complied with the FLSA’s requirements, please contact us.
