WI Paramedic Files Lawsuit for Overtime

A Wisconsin paramedic has filed a lawsuit in the U.S. District Court for the Western District of Wisconsin alleging his employer, the Village of Plover, Wisconsin violated the FLSA. Paramedic Joshua Wendorf alleges the village failed to (1) pay him for all hours worked, (2) pay overtime for hours worked over 40 per week, and (3) properly calculate earned FLSA compensatory time (comp time) in lieu of paying federally mandated overtime.

First, Wendorf alleges the village did not compensate him for the time spent working before and after scheduled shifts. Wendorf’s complaint cites the following examples of uncompensated pre-and-post shift activities:

• Receiving reports or updates from the previous shift;
• Prepping and/or restocking the ambulance(s);
• Performing routine maintenance, cleaning, and/or inspection of the ambulance(s);

Whether Wendorf is entitled to compensation for his pre-and-post shift activities will depend on the facts presented. However, the FLSA requires employers pay employees for all hours suffered or permit[ted] to work. Compensation claims for pre-and-post shift activities are not unusual in the fire/ems world. Typically, these types of claims do not involve significant amounts of back wages. However, when liquidated damages, attorneys’ fees, and other costs associated with litigation are factored into the equation, the overall cost associated with these types of claims can grow and grow. It is imperative for fire departments to develop policies aimed at minimizing liability from off-the-clock wage claims.

Second, Wendorf alleges that he frequently worked more than 40 hours per week without receiving any overtime pay. Public agency fire departments can classify firefighter/medics as “employees engaged in fire protection activities” [aka §207(k) firefighters] to avoid the standard overtime after 40-hour FLSA mandate. However, there is a catch for fire departments that seek to utilize the §207(k) partial overtime exemption. For starters, this special FLSA rule only applies to public agency fire departments. Private fire and non-profit fire departments do not qualify this exemption.

Next, in order for a public agency fire department to claim the §207(k) partial overtime exemption it must establish the firefighter/medic is:

1. Trained in fire suppression;
2. Has the legal authority and responsibility to engage in fire suppression; and
3. Is engaged in the prevention, control, and extinguishment of fires or response to emergency situations.

According to Wendorf’s complaint he was not trained in fire suppression, did not engage in fire protection activities, nor did he have the legal authority or responsibility to engage in fire protection activities. These are critical factors since the FLSA requires that all of these requirements must be met for a fire department to utilize the exemption. If the fire department cannot establish these factors, then these employees would most likely be entitled to overtime for all hours worked over 40 in a week.

Finally, Wendorf claims the village improperly calculated his FLSA comp time. The FLSA allows public agency employers the option of providing employees comp time in lieu of paying FLSA overtime under certain conditions. The FLSA requires that comp time be “provided at a rate of one-and- one-half hours for each overtime hour worked”. For example, if a firefighter or medic is entitled to 10 hours of FLSA overtime, they would be entitled to 15 hours of FLSA comp time. According to Wendorf’s complaint the village did not convert comp time hours to the overtime equivalent as required by the FLSA and Department of Labor regulations.

Wendorf is seeking back pay, liquidated damages, and attorneys’ fees. Here is the copy of the complaint.