Late last week, firefighters in two west coast cities filed separate FLSA lawsuits alleging they were shorted overtime pay by their employers.
The first lawsuit was filed in the U.S. District Court for the District of Arizona, by four Flagstaff firefighters, on September 20, 2018. The complaint makes two basic claims: The City of Flagstaff failed to include non-discretionary “premium payments” in firefighters’ regular rate of pay for FLSA overtime purposes, and the city failed to pay overtime in a timely manner.
According to the firefighters’ complaint, the city provides additional “premium payments” above the base rate of pay for “assignments which bear a heightened level of physical risk above the norm of the job, or which require special skills or additional certification and/or continuing education above and beyond the minimum requirements of the position.” These types of wage augments are very common in the fire service. The firefighters claim these additional wage augments must be included in the regular rate for overtime purposes. Proper calculation of the regular rate is critical since all FLSA overtime must be at least time and one-half of an employee’s regular rate.
Next, the firefighters claim the city does not pay overtime in a timely manner. Surprisingly, the FLSA is silent regarding when employees need to be paid for overtime. However, Department of Labor (DOL) regulations require overtime be paid as soon as “practicable” following the end of the work period. Practically speaking that would be the payday after the amount of overtime can be determined. According to the firefighters’ complaint the city delays payment of some overtime for more than one-year.
The second lawsuit was filed by four firefighters from Belmont, California, on September 21, 2018. These firefighters also make two basic claims regarding the regular rate. They allege the Belmont Fire Protection District fails to include money firefighters receive in lieu of receiving employer sponsored health benefits and holiday pay in their regular rate for FLSA overtime purposes.
The firefighters claim money paid in lieu of employer sponsored medical benefits must be included in the regular rate. This claim is very similar to other claims made across the western region of the United States in recent months regarding the inclusion of this type of compensation in the regular rate. Generally speaking, courts and the DOL have concluded these type payments need to be included in the regular rate.
Finally, according to the firefighters’ complaint, firefighters receive six hours of additional pay every pay period in lieu of receiving any time off for twelve designated holidays per year. Since the firefighters receive the same amount of holiday pay every pay check regardless of whether they actually work the holiday, they believe it should be included in their regular rate. Whether holiday pay must be included in the regular rate requires a highly fact dependent analysis. Seldom are facts and circumstances the same when it comes to holiday pay and the regular rate. We will have to monitor this aspect of the firefighters’ complaint as it progresses through the court system.
Both lawsuits seek three years of back wages, liquidated damages, and attorneys’ fees for the plaintiffs.
Alleged regular rate violations continue to be the most common allegation in FLSA lawsuits in the fire service today. Any regular reader of FirefighterOvertime.org can attest to that fact. However, the types of compensation firefighters are seeking to have included in the regular rate is evolving. For example, a few years ago, complaints over EMT stipends, longevity payments, and other non-discretionary bonuses were the most common type of compensation employees sought to have included in the regular rate. More recently, payments made to firefighters in lieu of medical benefits and holiday pay are emerging as some of the most common regular rate complaints. This is a prime example of how the FLSA, although originally crafted over 80 years ago, continues to evolve.
Do you have questions on the regular rate?
Here are copies of both the complaints.