Firefighter Overtime Discussing Fair Labor Standards Act (FLSA) for Firefighters, First Responders as well as Human Resource & Finance Professional
Cathedral City, California, is the latest city to face allegations of unpaid overtime from one of its firefighters. Corey Goddard, an engineer/paramedic for the Cathedral City Fire Department, filed a federal lawsuit this week alleging his employer [Cathedral City] failed to include all remuneration in his and other firefighters’ regular rate of pay in violation of the FLSA. In the suit, which was filed March 19, in the U.S. District Court for the Central District of California, Goddard alleges the city failed to include holiday pay, educational incentives, acting pay, and bilingual pay in his and other “similarly situated” firefighters’ regular rate of pay.
The FLSA requires virtually all of the money an employer pays an employee included in the regular rate of pay. Proper calculation of the regular rate is critical since all FLSA overtime must be, at a minimum, time and one-half of the employee’s regular rate. Additionally, many public agency employers opt to provide employees FLSA compensatory time (comp time) in lieu of paying FLSA overtime. In the event accrued comp time hours are cashed out—i.e. paid directly to the employee—the FLSA requires this payment be made at the employee’s regular rate. Very often employers mistake the contracted hourly pay rate as the regular rate. This is a common mistake made by many public agency employers. In fact, failing to include all remuneration in the regular rate is the most common grounds for FLSA lawsuits in the fire service today.
According to this complaint, the terms of employment between firefighters and Cathedral City are governed by a Memorandum of Understanding (MOU) between the city and the firefighters’ union. While the MOU contains a base salary for all covered firefighters, it also provides firefighters with additional remuneration above and beyond firefighters’ base hourly wages. This remuneration includes, “compensation in lieu of observing holidays”, educational incentives, acting pay, and bilingual pay. Goddard claims the city is not including this additional remuneration in the regular rate. As is common in any FLSA litigation, whether these payments must be included in the regular rate will depend on the specific facts, however, as a general rule these types of payments/incentives should be included in firefighter’s regular rate of pay.
Here are some relevant portions of the complaint:
Plaintiff is a member of the Cathedral City Professional Firefighters Association (“CCPFA”).
CCPFA is the exclusive bargaining representative of employees in Defendant’s firefighter bargaining unit, which consists of all sworn Firefighters, Firefighter/Paramedics and Fire Engineers of the City of Cathedral City below the rank of Captain.
The terms and conditions of employment of CCPFA members, including but not limited to compensation, are governed by a Memorandum of Understanding (“MOU”) between CCPFA and Defendant.
Pursuant to the MOU, Plaintiff’s total compensation consists of a base salary as well as incentives and other forms of remuneration that compensate him for his regularly scheduled shifts.
For example, Defendant provides Plaintiff monetary compensation in lieu of observing holidays (“Holiday Pay”) pursuant to Section 13.6 “Holidays” of the MOU between CCPFA and Defendant.
The MOU also includes other incentives, including but not limited to, Education Incentives, Acting Pay, and Bilingual Pay.
At all times relevant hereto, Defendant treated these payments to Plaintiff as wages for the purpose of applicable tax withholdings.
At all times relevant hereto, Defendant suffered or permitted Plaintiff to work hours beyond statutory thresholds, thus triggering Defendant’s obligation to pay Plaintiff overtime compensation as required by the FLSA.
Pursuant to 29 U.S.C. section 207(e), the “regular rate” upon which all forms of Plaintiff’s overtime compensation are based must include all remuneration received by Plaintiff, unless explicitly excluded.
At all times relevant hereto, Defendant impermissibly excluded certain remuneration from Plaintiff’s “regular rate” of pay, including but not limited to Holiday Pay, Education Pay, Acting Pay, and Bilingual Pay, thereby resulting in the systematic underpayment of overtime compensation to Plaintiff.
By the same conduct (i.e., the impermissible exclusion of remuneration from the “regular rate”), Defendant failed to pay Plaintiff and other similarly situated individuals for cashed out compensatory time off (“CTO”) at the “regular rate” of pay as required by 29 U.S.C. section 207(o)(3)-(4).
Here is a copy of the complaint.
