Sixty-Eight Hours

Search the 2021 to 2025 collective bargaining agreement covering Hawaii's firefighters for the words "Section 7(k)." You will not find them. Search it for "212 hours." Not there either. Search it for "28-day work period," the phrase that appears in almost every published explanation of firefighter overtime in America. Also absent.

None of that means the exemption is not being used. It means the contract does not need to name it.

The agreement defines its own work period, nine consecutive days, and sets overtime above 68 hours within it. Federal law, for a nine-day work period, permits a fire employer to withhold overtime up to 68 hours. The contract and the federal ceiling are the same number.

This article is about that gap of zero. Not about whether the exemption is legal, because it is. Not about whether Hawaii's counties are using it correctly, because on the documents available they are. It is about the fact that 68 was a choice, that the law set a maximum rather than a requirement, and that other places facing the identical choice landed somewhere else.

What the Contract Actually Says

Hawaii's firefighters are Bargaining Unit 11, represented by the Hawaii Fire Fighters Association, IAFF Local 1463. One agreement covers the State and all four counties. Section 20, "Hours of Work," carries the definitions that determine every firefighter's overtime in this state.

Three facts come out of those two sentences, and each one matters later.

First, the scheduled week is 56.0 hours. Seventy-two hours across nine days is exactly eight hours a day, which across a seven-day week is 56. That figure is not an estimate from anybody's recollection. It is arithmetic on the contract's own numbers.

Second, firefighters do earn overtime, and the contract says where it starts. Four hours of every nine-day period, the span from 68 to 72, are paid at time-and-a-half. Across a year that is roughly 162 hours paid at the overtime rate. Any account of Hawaii firefighter compensation that says they receive no overtime at all is wrong, and this publication has corrected its own earlier arithmetic on that point.

Third, everything below 68 is straight time. That is the number this article is about.

What Federal Law Permits

The Fair Labor Standards Act sets overtime at 40 hours a week for most American workers. Section 7(k) of that Act creates a separate rule for public agency firefighters and law enforcement, allowing an employer to use a "work period" of between 7 and 28 days instead of a fixed week.

The best-known version of the exemption is the 28-day maximum, where overtime begins at 212 hours. But the regulation does not stop there. It scales.

The regulation then prints the resulting table, work period by work period. A selection of it, with Hawaii's own work period marked:

Read down that right-hand column. Every row says the same thing. This is the part that surprises people, and it is worth saying plainly.

It is easy to look at "nine days" next to "up to twenty-eight days" and read it as restraint, as though Hawaii declined to take the full exemption. The regulation is built so that it cannot mean that. Choosing a shorter cycle changes the accounting period and nothing else. What would change a firefighter's pay is a threshold set below the ceiling for whatever period is chosen. Hawaii's is set at the ceiling.

The Employer Has to Claim It

There is a common assumption that 7(k) simply applies to firefighters, the way a law of nature applies. It does not. It is an exemption an employer takes, and in a dispute the employer carries the burden of showing it took it properly.

The clearest illustration is a case from Tulsa, Oklahoma, and it is worth attention here because the schedule at issue was structurally the same as Hawaii's.

Fifteen Tulsa firefighters sued the City for additional overtime under the FLSA. The City argued it "has adopted a nine-day work period of hours to accommodate its fire-fighting employees who work shifts of 24 hours on duty followed by 48 hours off duty." A nine-day period, 24 on and 48 off, three platoons. The same architecture Hawaii runs.

The Tenth Circuit affirmed. The firefighters won, and their back pay was calculated at the ordinary 40-hour standard.

Two things follow, and it is important to keep them separate.

The first is a point of law that applies everywhere: 40 hours is the default, and 7(k) is a departure from it that an employer must affirmatively establish. The same opinion states the standard directly: "A public sector employer bears the burden of establishing that it qualifies for a section 207(k) exemption."

The second is what this case does not establish. It is not evidence that Hawaii's counties are exposed to a similar claim. The same opinion describes a second route to establishing a work period, quoting earlier case law: "a public employer may establish a 7(k) work period even without making a public declaration, as long as its employees actually work a regularly recurring cycle of between 7 and 28 days." Hawaii's nine-day cycle is written into a signed agreement and worked every day of the year. Nothing in the public record suggests it is improperly established, and this article does not suggest it.

Tulsa matters for a narrower reason. It shows that the exemption is a thing an employer reaches for, and that when the reach fails, what remains is 40 hours a week. That is the baseline the law starts from.

A Ceiling Is Not a Floor

If 68 hours is a maximum, the obvious question is whether anyone bargains below it. They do. Two examples, one a local contract and one an entire state.

Burlington, Massachusetts

The Town of Burlington, Massachusetts, which is not the Burlington in Vermont, has an agreement with IAFF Local 2313 that does not frame its firefighters' hours in FLSA terms at all. It sets a schedule and prices overtime off it directly.

A 42-hour average week, and an overtime rate calculated on a 1/42 divisor, meaning the contract's own arithmetic treats 42 hours as the standard week. Federal law would have permitted Burlington to go to roughly 53. It bargained to 42 instead.

Rhode Island

Rhode Island did not leave it to each town. In 2019 the General Assembly wrote the number into state law, binding every city, town, and fire district in the state.

The statute calculates that average over the prior eight weeks, and counts paid leave as hours worked. It phased in per department as each existing contract expired, so it was not universal on the day it passed.

Neither Burlington, Massachusetts, nor Rhode Island abolished the federal exemption. They could not; it is federal law. What they did was decline to use all of it. The FLSA sets a floor under workers, not a cap on what an employer may agree to, so a shorter week and a lower threshold have always been available to any city, any town, and any state that wants them.

And Hawaii Has No State Backstop

Some states put a second layer under their public employees through their own wage and hour law. A reader might reasonably assume Hawaii is one of them. Hawaii's wage and hour law is Chapter 387 of the Revised Statutes, and its overtime section reads much like the federal one.

It does not apply to firefighters. It cannot, because of a single clause in the definitions.

The counties are political subdivisions of the State. They are therefore not "employers" under Chapter 387, and the entire chapter, including its 40-hour overtime rule, has no application to county firefighters. A reading of all fifteen sections of the chapter finds no firefighter or public safety provision anywhere in it, and no state equivalent of a 7(k) work period.

The practical effect is that two things, and only two things, determine a Hawaii firefighter's overtime: federal law, and what is negotiated into the agreement. There is no third layer. The 68-hour figure is not moderated by anything above it.

What the Community Can Take Away

Nothing described here is a violation. The exemption is lawful, the nine-day work period is lawful, and 68 hours is lawful. The point is narrower and, in the long run, more useful than an accusation would be.

A maximum permitted by federal law tends to be read, over time, as the way things are done. It stops sounding like a decision. Burlington, Massachusetts, and Rhode Island are useful precisely because they are ordinary places that treated it as a decision and answered it differently, without asking Congress for anything.

• Hawaii's firefighter agreement never names Section 7(k). It defines a nine-day work period scheduled at 72 hours and sets overtime above 68.
• Sixty-eight hours is the exact maximum 29 C.F.R. 553.230 permits for a nine-day work period. The bargained figure and the federal ceiling are identical.
• A shorter work period does not by itself reduce the gap. The threshold scales in proportion, so every permitted work period works out to about 53 hours a week.
• Under federal law the default is a 40-hour week. Section 7(k) is a departure an employer must establish, and in Spradling v. City of Tulsa a city that failed to establish it paid back overtime at the 40-hour standard.
• Other jurisdictions bargained or legislated below the ceiling. Burlington, Massachusetts sits at a 42-hour average week; Rhode Island wrote 42 hours into state law for every city, town, and fire district.
• Hawaii has no state-law backstop. HRS 387-1 excludes the State and its political subdivisions from the definition of "employer," so the state wage and hour law does not reach county firefighters at all.

The next contract cycle will come, as it always does. The question this article exists to make askable is a simple one, and it is not addressed to firefighters. Sixty-eight was the ceiling. Who decided it should also be the number?