Excerpts from James Small’s Emails: The other question to ask with this proposal is whether it is going to provide a reliable and sustainable workforce to staff the ambulance. Paying a nominal wage is probably not sustainable and risks having rapidly escalating costs to make it sustainable. Consider if the wage needs to go from $7.25/hr to double or triple that in a short time? [Emphasis Added]
“The discussion you are having really needs to consider if it would make sense to join the regionalization discussions in your region. There are literally no other communities seriously considering starting their own ambulances right now.”
PLEASE NOTE: I am posting these emails between Faye Buchberger and James Small as a Public Service to the residents of Kronenwetter. James Small’s earlier presentation to the Village Board can be viewed in the video linked in the References.
Email Reply from James Small to Faye Buchberger
From: JAMES A SMALL <s—–@wisc.edu>
Sent: Thursday, September 19, 2024 7:35:39 PM
To: Faye Buchberger <b————@hotmail.com>
Subject: Re: Kronenwetter Ambulance Service
Hi Faye,
I do not have contact information for the rest of the committee members so if you could forward this please feel free to do so.
If I am understanding correctly, the question you’re asking is basically whether a person being on call in the station is “working” or if they are “on call.” It is permissible for “on call” people to be paid below minimum wage. In the scenario you provided, if the person is required to be at the station or so close that it hinders them to do other things then they are working and subject to state and federal wage rules. If they are in the station they are working and required to be paid at least minimum wage. This proposal has a lot of potential to lead to workforce development complaint down the line.
The other question to ask with this proposal is whether it is going to provide a reliable and sustainable workforce to staff the ambulance. Paying a nominal wage is probably not sustainable and risks having rapidly escalating costs to make it sustainable. Consider if the wage needs to go from $7.25/hr to double or triple that in a short time?
Keep in mind there are a variety of labor rule exceptions that apply to people working as firefighters that do not apply to people only doing EMS. Overtime rules are completely different between a Firefighter/EMT and an EMT.
This is a link from the league of Wisconsin municipalities that provides some guidance. https://www.lwm-info.org/faq.aspx?TID=65
This is the section in that link that I would draw your attention to:7. Must employees be compensated for on-call time (time where the employee is not actually working but must be ready to respond if needed)?
It depends. The Fair Labor Standards Act (FLSA) requires employers to compensate workers for on-call time when the time is spent “predominantly for the employer’s benefit.” Theune v. City of Sheboygan, 67 Wis. 2d 33, 40, 226 N.W.2d 396 (1975). There are no hard and fast rules. Whether on-call time qualifies for compensation is a fact-specific question that varies by case. Skidmore v. Swift, 323 U.S. 134, 136 (1944). An employee who is required to remain on call on the employer’s premises or so close thereto that they cannot use the time effectively for their own purposes is working while “on call.”
An employee who is not required to remain on the employer’s premises but is merely required to leave word at their home or with company officials regarding where they may be reached is generally not working while on call. 29 CFR § 785.17. However, the Department of Labor notes that “additional constraints on the employee’s freedom could require this time to be compensated.” Department of Labor, Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA).
In determining whether the time is spent predominantly for the employer’s or the employee’s benefit, the key is how restricted the employee’s activities are. No single factor determines the outcome. Instead, the courts look to a variety of factors in determining whether the on-call time is spent predominantly for the employer’s benefit. Some of these factors are: (1) terms of the employment agreement, if any; (2) physical restrictions placed on an employee while on call; (3) maximum period of time allowed by the employer between the time the employee was called and the time he or she reports back to work (response time); (4) percentage of calls expected to be returned by the on-call employee; (5) frequency of actual calls during on-call periods; (6) actual uses of the on-call time by the employee; and (7) disciplinary action, if any taken by the employer against employees who fail to answer calls. Fair Labor Standards Handbook for States, Local Governments and Schools, ¶ 430 (B.L.R).
(rev. 6/22)
This is information from a 1998 Federal ruling that allowed less than minimum wage for being on call. It cites some of the reasons why it allowed it in this specific case. Keep in mind this is a private employer and not a municipal employer so the rules might apply differently. https://www.vonbriesen.com/legal-news/1957/wisconsin-federal-district-court-upholds-rural-hospitals-emt-on-call-policy#:~:text=The%20%E2%80%9Con%20call%E2%80%9D%20time%20can%20be%20paid%20at%20minimum%20wage,for%20%E2%80%9Con%20call%E2%80%9D%20time.
This is a recent opinion from Society of Human Resource Management. https://www.shrm.org/topics-tools/tools/hr-answers/how-pay-call-nonexempt-employees-time-not-actually-working-call
The League of Municipalities may be able to provide free legal advice to help you consider the practice further.
Please feel free to reach out if you have any questions
James Small
Rural EMS Outreach Program Manager
Wisconsin Office of Rural Health
310 N Midvale Blvd, Suite 301
Madison, WI 53705
608-265-8—
s—–@wisc.edu
Email from Faye Buchberger to James Small
From: Faye Buchberger <b—————-@hotmail.com>
Sent: Thursday, September 19, 2024 7:00 PM
To: JAMES A SMALL <s——-@wisc.edu>
Subject: Kronenwetter Ambulance Service
Mr. Small:
I am sorry to bother you. But I am hoping that you could chime in on a concern I see with this proposal.
I was present when you gave your presentation. Thank you for doing so. It was very informative. We citizens keep pushing for you to do an independent evaluation of the proposal and other options.
At the last meeting, we got the feeling that Theresa was posing something we feel is not proper and probably not legal. She talked about how on-call people would have to be in-house at the fire station in order to assure fast response time. She posed that anyone would be willing to get paid on-call time and have a nice quiet place at the fire station to sleep for 8 hours….
We interpret this as an indication that Theresa thinks she can require on-call people to be physically at the fire station during their on-call shift. We think this is against the law. That anyone required to be physically present at the employer’s location is to be paid as if on-duty. The requirement to be physically located at the fire station makes these people regular employees, getting paid what any other fire personnel on duty would be paid, including benefits.
Theresa is posing $5 an hour for on-call people, including those required to be at the fire station, and $20 an hour for those scheduled fire/ambulance personnel required to be on-site.
I hope I explained the issue we are seeing adequately. Would you be willing to express your ‘opinion’ in writing on this type of situation. Maybe there is a law regarding EMS people that we are unaware of.
I would ask that you provide a copy to me, and a copy to the members of the ambulance sub-committee. If that is too much to ask, I would gladly submit your opinion to them for you.
Thank you again for your time. We citizens appreciate your candor and willingness to help clarify the situation.
Sincerely,
Faye L. Buchberger
Email from James Small to Faye Buchberger
From: JAMES A SMALL <s——@wisc.edu>
Sent: Thursday, September 19, 2024 7:40:39 PM
To: buchbergerfaye@hotmail.com <b———–@hotmail.com>
Subject: Additional information
I wanted to share this document with you. This is a new consolidation of services taking place in Kenosha County. These municipalities historically have not worked together.
The discussion you are having really needs to consider if it would make sense to join the regionalization discussions in your region. There are literally no other communities seriously considering starting their own ambulances right now.
Please note that in this document they are expecting compensation of $100k for paramedics. This is in the rural west end of Kenosha County.
Feel free to share. This is also a public document.
James Small
Rural EMS Outreach Program Manager
Wisconsin Office of Rural Health
310 N Midvale Blvd, Suite 301
Madison, WI 53705
608-265-8—
s—–@wisc.edu
PLEASE NOTE that per Faye’s email she did not represent herself as being a member of the ambulance subcommittee. Perhaps James has not been contacted by any of the ambulance subcommittee members and thus he misunderstood Faye’s email and thought that Faye was a member of the subcommittee.
REFERENCES:
James Small’s presentation to the Village Board