San Diego Firefighters File FLSA Lawsuit

Several current and former San Diego firefighters filed a federal lawsuit last week alleging the City of San Diego violated the FLSA. Eric Kelley, Patrick Hesters, and Eric Dunnick filed the suit on behalf of themselves and other similarly situated individuals in the U.S. District Court for the Southern District of California on April 2, 2019.

The complaint makes two basic claims. First, the City of San Diego failed to include all remuneration in firefighters’ regular rate of pay. Specifically, the city failed to include money paid directly to firefighters in-lieu of employer sponsored medical benefits in their regular rate. Click here, for more information on the regular rate and employer sponsored medical benefits.

Kelley and the other plaintiffs claim the city is shortchanging firefighters on both their FLSA overtime and “cashed out” compensatory time.  The FLSA requires virtually all the money an employee receives from his employer included in the regular rate. Properly calculating the regular rate is critical since all FLSA overtime must be at least time and one-half of the employee’s regular rate. Additionally, the FLSA requires any compensation received by employees for accrued comp time also be paid at the employee’s regular rate. Therefore, according to the complaint, the city is shortchanging firefighters on both their overtime rate and the pay they receive when cashing out accrued comp time. 

Secondly, the complaint also alleges the city is violating the FLSA by implementing a pay system called “Cycle Time.” According to the complaint, Cycle Time is an averaging tool the city utilizes in-lieu of paying firefighters for all hours worked every work period. From the complaint:

Cycle Time

  • Defendant treats Plaintiffs holding the ranks of firefighter: Fire Recruit, Firefighter I, Firefighter II, Firefighter III, Fire Engineer, Fire Engineer-Metro Arson Strike Team (MAST), Fire Captain, Fire Captain-Metro Arson Strike Team (MAST), Fire Battalion Chief, Assistant Fire Marshall, Emergency Medical Technician I, Paramedic I, Paramedic II, Fire Prevention Inspector I, Fire Prevention Inspector II, Fire Prevention Supervisor I, Fire Prevention Supervisor II, Fire Helicopter Pilot and Air Operations Chief (collectively referred to as “Firefighters”) as subject to the partial overtime exemption described in 29 U.S.C. 207(k).
  • Defendant has adopted a 28-day work period under the Section 7(k) Exemption, which requires Defendant to pay overtime to Plaintiffs under the FLSA when they work more than 212 hours in the 28-day work period. In three twenty-eight-day work periods Firefighters work two nine-shift work cycles (216 hours each) and one ten-shift work cycle (240 hours). In order to account for a consistent pay system Defendant uses a concept known as “Cycle Time.” Defendant’s system of Cycle Time involves subtracting eight hours from four consecutive paychecks and adding sixteen hours to two consecutive paychecks. This maintains employees at 112 hours per bi-weekly pay period.
  • Defendant calculates the regular rate for FLSA overtime by dividing all remuneration by 224 hours, the average number of hours worked over three work periods.
  • The Cycle Time system has the effect of Defendant failing to properly count all hours worked by Firefighters in the pay periods in which Defendant has subtracted eight hours from the actual work hours of Firefighters.

The FLSA does not prohibit paying firefighters a salary, which averages wages from week-to-week, however averaging actual hours worked week-to-week is a different matter. As a general rule, neither the FLSA nor Department of Labor (DOL) regulations allow averaging hours worked from one work period to another. Hours worked in each work period must be evaluated separately. Click here, for more information on the FLSA and overtime averaging.

Here is a copy of the complaint.

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