Allegations of Unpaid Overtime and FLSA Regular Rate Violations for some California Firefighters

Twenty-three current and former La Verne, California, firefighters have filed a federal lawsuit against the city for violations of the FLSA. The firefighters make two basic allegations in a six-page complaint filed in the Central District of California. First, the City of La Verne failed to pay some firefighters for all hours worked attending meetings, training, and performing other administrative type functions. Second, the city failed to include all remuneration in the firefighters’ regular rate of pay. Specifically, the firefighters want additional money paid for holidays, which is referred to as “Holiday in Lieu Pay,” included in their regular rate.

Unpaid Hours

Ten of the twenty-three La Verne firefighters named in the suit claim the city failed to pay them for all hours worked. The ten allege they worked a total of almost 1,000 “unpaid” hours over the past three years. The firefighters claim they were not paid for a number of fire department related activities. These activities included: attendance at interviews, training, various other “committee” meetings, as well as apparatus design meetings. The FLSA requires employers pay employees for all hours worked. Employers are often surprised to learn this can include time the employer does not require the employee to work. Even when an employee volunteers to perform additional work, such as participation in work related committee meetings, the employer is most likely required to compensate them for that work. This is a very common problem. It is important fire departments recognize this issue and work pro-actively to manage and minimize any potential liability that could arise from these types of claims.

Holiday in Lieu Pay

The firefighters also allege the city failed to include “Holiday in Lieu Pay” in the firefighters’ regular rate. Properly calculating a firefighter’s regular rate is critical, since all FLSA overtime must be at least time and one-half of the regular rate of pay. According to the complaint, La Verne “shift” firefighters receive 10 hours of pay every month (120 hours of “regular pay per year”) as holiday in lieu pay. Generally speaking, holiday pay is one of the few forms of remuneration that can be properly excluded from an employee’s regular rate. However, there can be limited circumstances where holiday pay must be included in the regular rate. Whether holiday pay must to be included in the regular rate requires a very fact specific inquiry. There is no one-size-fits all approach to holiday pay and the regular rate. It is important to remember, the employer bears the burden of proving all remuneration, including holiday pay does not need to be included in the regular rate.

Whether the firefighters will prevail on any of these claims is unknown. We will have to wait and see how the case develops and how the city responds to these allegations. Here is a copy of the firefighters’ complaint:

La Verne FFs FLSA Complaint 2018

Hours worked and regular rate are two topics that we tackle in much greater detail at all of our upcoming FLSA for fire departments seminars. Please consider joining us.

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