NY EMT Sues Village For Overtime Pay

A New York EMT is suing his employer for violations of both the Fair Labor Standards Act (FLSA) and New York wage and hour laws. Ronald Tappen, an EMT for the Lindenhurst Fire Department filed the lawsuit in the U.S. District Court for the Eastern District of New York on January 22. Tappen alleges the town failed to pay him overtime as required under both federal and state law. Tappen makes three basic claims in the twelve-page complaint. First, the town improperly deducted meal time from hours worked in violation of both the FLSA and state law; second, the town failed to pay overtime for all hours worked each workweek; and third, the town issued Tappen inaccurate pay stubs in violation of New York law.

Here are some relevant portions from the complaint:

• At all times relevant to this action, Plaintiff was employed as an EMT for the benefit of and at the direction of Defendant at the Lindenhurst Fire Department.
• From about January 22, 2013 until about mid-2016, Plaintiff worked five days per week, Monday through Friday from or about 6:00 a.m. until or about 2:30 p.m.
• During this time, Plaintiff did not receive and did not take any uninterrupted meal breaks during his shifts.
• During this time, Plaintiff worked forty-two and one-half (42.5) hours per week.
• During this time, despite not receiving any uninterrupted meal breaks during his shifts, Defendants deducted thirty (30) minutes from each shift that Plaintiff worked and only paid him for forty (40) hours.
• During this time, Defendant did not pay Plaintiff overtime compensation at a rate of one and one-half times his regular rate of pay for two and one-half (2.5) hours of work per week.
• From about mid-2016 until about May 2017, Plaintiff worked four days per week, Monday through Thursday from or about 6:00 a.m. until or about 4:30 p.m.
• During this time, Plaintiff did not receive and did not take any uninterrupted meal breaks during his shifts.
• During this time, Plaintiff worked forty-two (42) hours per week.
• During this time, despite not receiving any uninterrupted meal breaks during his shifts, Defendants deducted thirty (30) minutes from each shift that Plaintiff worked and only paid him for forty (40) hours.
• During this time, Defendant did not pay Plaintiff overtime compensation at a rate of one and one-half times his regular rate of pay for two (2) hours of work per week.
• From about May 2017 until on or about January 6, 2019, Plaintiff worked a rotating, bi-weekly schedule of four days on (Monday, Tuesday, Wednesday, and Thursday) and three days off (Friday, Saturday, and Sunday) during the first week, and three days on (Tuesday, Wednesday, and Thursday) and four days off (Monday, Friday, Saturday, and Sunday) during the second week.
• During this time, Plaintiff worked from or about 6:00 a.m. until or about 6:00 p.m. each day that he worked.
• During this time, Plaintiff did not receive and did not take any uninterrupted meal breaks during his shifts.
• During this time, Plaintiff worked forty-eight (48) hours during his 4-day weeks and thirty-six (36) hours during his 3-day weeks.
• During this time, despite not receiving any uninterrupted meal breaks during his shifts, Defendants deducted thirty (30) minutes from each shift that Plaintiff worked.
• During this time, Defendant added the number of hours Plaintiff worked during the 2-week period, subtracted thirty (30) minutes per shift, and paid Plaintiff for eighty and one-half (80.5) hours for the bi-weekly period, including one-half (0.5) hour of overtime pay.
• During this time, Defendant did not pay Plaintiff overtime compensation at a rate of one and one-half times his regular rate of pay for eight (8) hours of work for the first week of each bi-weekly pay period.
• During this time, Defendant did not pay Plaintiff his regular rate of pay for one and one-half (1.5) hours of work for the second week of each bi-weekly pay period.
• On or about October 25, 2018, Plaintiff served a Notice of Claim on Defendant, which was received on October 30, 2018.
• During the relevant period of Plaintiff’s employment, Defendant failed to provide Plaintiff with accurate earnings statements, paystubs, cash receipts, or any other type of accurate wage statement along with his weekly paycheck, as required by NYLL § 195(3), because the paystubs he received did not reflect the accurate number of hours that Plaintiff worked each week.
• Defendant was aware that Plaintiff was not receiving uninterrupted meal breaks each shift but continued to deduct thirty (30) minutes from each shift and failed to pay him the full amount of wages to which he was entitled for this work time under the law.

The FLSA allows employers to deduct “bona fide” meal periods of at least 30 minutes from an employee’s hours worked provided the employee is “completely relieved” during the meal period. Courts are split on exactly what it means to be “completely relieved.” Historically courts look to the responsibilities that an employee is required to maintain during the meal period as relevant whether it can be deducted from hours worked for overtime purposes.

Additionally, as a general rule, the FLSA does not allow employers to average the hours worked by employees from one workweek to the next. For example, a civilian EMT that works 50 hours in one workweek is entitled to 10 hours of overtime for that workweek. This overtime is required even if he or she only worked 30 hours the week before. This is a somewhat common FLSA violation for civilian fire department employees, like dispatchers, EMTs, and other non-firefighting personnel.

Here is a copy Tappen’s complaint:

Tappen v. Lindenhurst FLSA complaint