Three recently retired Gloversville, New York firefighters have filed a lawsuit in the U.S. District Court for the Northern District of New York claiming the City of Gloversville violated the FLSA. Recent Gloversville Fire Department retirees, James Anderson, Robert Davis, and David Rackmyre allege the city failed to properly administer its FLSA compensatory (comp) time program which resulted in the three being shorted pay upon their retirement. Comp time is a special provision of the FLSA and Department of Labor regulations that allow some fire departments avoid paying overtime to firefighters provided certain conditions are satisfied.
One of these conditions, requires comp time to be accrued at a rate of one and one-half hours of paid time-off for every hour of overtime a firefighter is owed. For example, fire department Alpha and its firefighters have an agreement to provide comp time in lieu of paying FLSA mandated overtime. Firefighter Jones works for Alpha fire and is entitled to 24 hours of overtime this work period. However, firefighter Jones is actually entitled to 36 hours of comp time. The 24 hours of overtime is converted to equal 36 hours of comp time.
Here, the plaintiffs are claiming the city fails to provide comp time at a rate of time and one-half. According to the plaintiffs’ complaint the city provides “compensatory time at straight time rather than at one and one-half times the hours worked in excess of 53 hours per work period as required under §7 of the Act [FLSA].”
The plaintiffs also allege the city capped the maximum number of accrued comp time hours firefighters could cash out at retirement to 100 hours. In and of itself, this is a permissible practice. The FLSA limits the maximum number of comp time hours firefighters, and other emergency service workers, can accrue and cash-out at retirement to 480 hours. Despite this limitation, employers and employees can agree to lower this maximum number if they so desire without violating the FLSA. However, this agreement cannot allow the employer to simply wipe-away or take-away excess hours from a firefighters FLSA comp time accrual.
For example, fire department Alpha provides comp time in lieu of FLSA overtime for its firefighters. The department and firefighters have agreed that a maximum of 100 hours of comp time is to be paid out when a firefighter retires. Firefighter Jones is planning to retire next month; however, Jones has accrued in excess of 100 hours of comp time. At this point, the fire department has two options:
- Provide firefighter Jones time-off prior to his retirement to get down to the 100-hour maximum pay-out upon retirement.
- Pay firefighter Jones all comp time hours accrued at time of retirement, even if more than the 100-hour maximum.
To do anything less would violate the FLSA. Lowering the maximum number of comp time hours a firefighter can accrue does not allow the employer to avoid the obligation of either paying overtime or providing the employee with paid time off in lieu of that overtime.
Finally, the complaint does not make any allegations related to the firefighters’ regular rate of pay. This would likely infer the firefighters believe the city was properly calculating their regular rate of pay. As regular FirefighterOvertime.org readers are aware, regular rate violations are fairly commonplace in the fire service today. Proper calculation of the regular rate is critical for two reasons.
First, all FLSA overtime must be paid at a rate that is not-less than time and one-half of the employee’s regular rate. Failure to include all compensation—or what the FLSA refers to as remuneration—in the regular rate will likely result in a firefighter’s overtime rate being short-changed.
Second, and possibly a less well-known reason why the regular rate calculation is critical for firefighters surprisingly relates to comp time. Upon retirement all accrued FLSA comp time must be paid to the firefighter at the higher of either his or her last regular rate of pay, or the average regular rate over the previous three years. Therefore, calculating the correct regular rate is also important for fire departments that utilize FLSA comp time in lieu of paying FLSA overtime.
Here is a copy of the complaint.