Firefighter Overtime Discussing Fair Labor Standards Act (FLSA) for Firefighters, First Responders as well as Human Resource & Finance Professional
A Virginia emergency medical technician (EMT) has filed a federal lawsuit alleging his employer, Craig County, Virginia failed to pay he and other EMTs properly, in violation of the FLSA. Timothy Mason Kimble, an EMT for the county since 2016, makes two basic allegations on behalf of himself and other “similarly situated” individuals [other EMTs that have yet to join the lawsuit] against the county. First, the county improperly classified Kimble and other EMTs as §207(k) firefighters. Second, the county failed to pay EMTs for all hours worked, including the time worked between “arriving and departing shifts.”
207(k) Firefighter Claims
Kimble alleges the county improperly classified he and other EMTs as §207(k) firefighters for overtime purposes. Whether an employee can be properly classified as an employee engaged in fire protection activities, or a §207(k) firefighter, depends on the specific facts and circumstances of each situation. Just because an EMT in one jurisdiction is properly classified a §207(k) firefighter does not mean all EMTs are §207(k) firefighters. For more on §207(k) firefighter/EMTs click here.
The financial incentive for an employer to treat EMTs as §207(k) firefighters is significant. Civilian EMTs are entitled to FLSA overtime after working 40 hours every 7 days. Section 207(k) firefighter/EMTs are only eligible for FLSA overtime after working 212 hours in a 28-day work period, or 53 hours every 7 days.
To be properly classified as an employee engaged in fire protection activities, or a §207(k) firefighter, the employee must be:
- Employed by a public fire department;
- Trained in fire suppression;
- Have the legal authority and responsibility to engage in fire suppression; and
- Be engaged in the prevention, control, and extinguishment of fires or response to emergency situations.
All four of the above requirements must be satisfied to meet the definition. Here, according to Kimble’s complaint, he and other Craig County EMTs do not meet the above definition and therefore are entitled to overtime for all hours worked over 40 every 7 days.
Compensation for Pre and Post Shift Activities
The second part of Kimble’s complaint alleges the county failed to pay all EMTs for all hours worked. Specifically, the time EMTs were required to report to work early and stay beyond the regular shift in order to receive and relay important work-related information. Here are some relevant portions of Kimble’s complaint:
Defendant has no clock in/out mechanism available to Plaintiffs. This means that time for certain work activities is not built in to the schedule and goes unpaid. Such time includes the “hand off” meeting between arriving and departing shifts. During this meeting, the departing EMTs discuss the condition of the ambulance, any issues that need to be addressed by the incoming EMTs, any equipment left at the hospital, whether supplies need to be replenished, and other pertinent issues. Defendant does not compensate for, or even keep track of this additional time though such meetings are for its benefit.
Additionally, Defendant has, to its own financial benefit, failed to implement an accurate timekeeping system and has instead suffered and permitted Plaintiffs to work regular “off- the-clock” hours.
The FLSA generally requires employees be paid for all hours “suffered or permitted” to work. In the event the court finds Kimble and other EMTs engaged in work related activity before and after work shifts, the court will most likely find this time compensable. These types of “off-the-clock” overtime claims are on the rise across all industries, not just the fire service. Employers need to be pro-active in limiting the potential liability from such claims.
A copy of the complaint is available below.
