Another Alleged Regular Rate Violation for California Firefighters

Another California fire department is facing allegations it failed to include all remuneration in firefighters’ regular rate of pay. Kevin Burris, a Petaluma firefighter, has filed a federal lawsuit in the Northern District of California against the city alleging violations of the Fair Labor Standards Act (FLSA). Specifically, Burris claims the city failed to include holiday “in-lieu” pay and money given to him and other firefighters for declining city sponsored medical benefits in firefighters’ regular rate of pay in violation of the FLSA.

The FLSA requires virtually all remuneration paid to an employee included in the regular rate. This includes various wage augments, such as longevity, educational incentives, shift differentials, money paid to employees in lieu of medical benefits, and in some circumstances holiday pay. Very often an employee’s base or contract rate is not the regular rate. The regular rate can only be determined after considering all applicable wage augments in addition to the base or contract rate of pay.

Regular rate violations are the leading cause of FLSA lawsuits in the fire service. All FLSA overtime must be at least time and one half of the regular rate. Additionally, many public agency firefighters receive additional compensation when “cashing-out” accrued FLSA compensatory time (comp time). When a firefighter, or any public agency employee receives compensation from accrued comp time, it also must be paid at the employee’s regular rate.

Burris makes two basic claims in his complaint.

First, Burris claims the city failed to provide “compensation provided ‘in-lieu’ of observing holidays” in the regular rate of pay. Holiday in-lieu pay can be common in some public safety collective bargaining agreements. This unique form of holiday pay typically requires the employer pay employees a lump-sum payment in lieu of receiving time off on holidays. Lump sum payments that are not attributable to particular holidays need to be included in the regular rate.

Second, Burris also alleges the city failed to include money provided to firefighters for declining city sponsored medical benefits in the regular rate of pay. Typically, employer contributions for employer sponsored medical benefits can be rightfully excluded from the regular rate. However, that exclusion does not apply to money given to an employee in-lieu of providing medical benefits. That money must be included in the regular rate.

Finally, Burris raises two claims regarding the regular rate. First, the city failed to calculate the regular rate correctly which in turn lowered Burris’s FLSA overtime rate. This is a very common FLSA violation, however Burris also alleges failure to calculate the regular rate correctly resulted in his being shorted money owed when cashing out accrued comp time. There can be occasions when employees are paid for accrued comp time. That comp time is not paid to the employee at the overtime rate, rather it is paid to the employee at his or her regular rate at the time of the cash-out. This complaint serves as an important reminder to public agency employers. Proper calculation of the regular rate is critical.

The regular rate, the various exclusions from the regular rate, and comp time are just a few of the topics covered in-depth at the 3-day FLSA for Fire Departments seminars. The only two scheduled seminars for 2018 are only a few short weeks away. Please consider joining us.

May 8-10, 2018 – Minneapolis, MN

May 30 – June 1, 2018 – Providence, RI

Here is a copy of the complaint.

Burris v. Petaluma