Virginia Battalion Chiefs File Lawsuit Seeking Overtime Pay

Seven Battalion Chiefs from the Chesapeake Fire Department, in Chesapeake, Virginia, have filed a federal lawsuit looking for overtime pay. The Battalion Chiefs claim the city violated both the Fair Labor Standards Act and Virginia Gap Pay Act. The complaint, which was filed on July 24, 2018, in the United States District Court for the Eastern District of Virginia, alleges the city classifies them as overtime-exempt employees.

Kudos to the Battalion Chiefs’ attorney, or attorneys, for drafting an easy to read complaint that summarizes the Chiefs’ allegations. Here are some relevant excerpts:

• Plaintiffs are active Battalion Fire Chiefs employed by Defendant in the CFD.
• Plaintiffs are first responders.
• Plaintiffs are required to respond to all calls for service that satisfy criteria established by Defendant that are received by their unit.
• Plaintiffs have no discretion to refuse to respond to such a call.
• Plaintiffs must respond to calls for service with firefighting gear and equipment.
• Plaintiffs are all certified fire fighters.
• Plaintiffs are required to participate in emergency response training and meet the physical standards requirements of fire fighters.
• Plaintiffs have no authority to administer discipline and do not write policies.
• Plaintiffs do not set budgets, hire or fire employees, set pay, set work schedules or set minimum staffing levels.
• All of Plaintiffs’ duties are undertaken in conjunction with, or directly related to, their firefighting duties.
• Plaintiffs are fire protection employees as that term is defined in Virginia Code §9.1-700.
• Plaintiffs are employees in fire protection activities as that phrase is defined in 29 U.S.C. § 203(y) and described in 29 C.F.R. § 541.3.
• Under the FLSA, Plaintiffs are entitled to overtime compensation for all hours worked in excess of 159 in a 21-day work cycle.
• Under the Virginia Gap Pay Act, Plaintiffs are entitled to overtime compensation for all hours worked in excess of their scheduled hours up to 159 hours in a 21-day work cycle.
• Plaintiffs are regularly scheduled to work 168 hours in every 21-day work cycle, consisting of seven shifts, each of twenty-four hours.
• In addition, Plaintiffs work additional hours prior to and after the scheduled work shift and in performing ancillary duties on “off” days attending staff meetings and assigned committees, instructing, and training.
• Despite the non-exempt nature of Plaintiffs’ duties, Defendant classified them as exempt from the overtime provisions of the FLSA. Defendant did so based on job title and salary, ignoring the actual duties of Plaintiffs’ employment of which it was well aware.
• Defendant had knowledge of the hours Plaintiffs were working through its supervision of Plaintiffs by its Division Chiefs and the Fire Chief.
• Defendant knew that the FLSA was applicable to its employees and did so for the three years preceding the filing of the Complaint. Defendant paid overtime wages to its employees who worked more than 159 hours per work cycle and whom it had not misclassified.
• Defendant knew or showed reckless disregard as to whether it was violating the FLSA in its classification of Plaintiffs. Defendant knew that Fourth Circuit case law required overtime pay for first responders with duties similar to Plaintiffs. Furthermore, Defendant undertook a review of Plaintiffs’ duties but disregarded the factual results and maintained the erroneous classification of Plaintiffs as exempt.

The Battalion Chiefs are seeking back pay and liquidated damages for the past three years, in addition to their attorneys’ fees.

Here is a copy of the complaint.

Emmons v. Chesapeake FD FLSA Complaint