Fire Departments that utilize the FLSA’s §207(k) partial overtime exemption for cross-trained firefighter/EMTs should carefully review their policies and procedures following a recent court decision. The decision, which was handed down by U.S. District Court Judge Ada Brown, invalidated the Dallas/Fort Worth International Airport’s Fire Department’s (DFWFD) use of the §207(k) exemption for cross-trained firefighter/EMTs assigned to the department’s EMS division.
This ruling follows a 2018 FLSA lawsuit filed by a former DFWFD firefighter/EMT Douglas Patterson. Patterson alleged DFWFD improperly classified cross-trained firefighter/EMTs as employees engaged in fire protection activities (i.e. §207(k) firefighters). That lawsuit, initially filed by Patterson alone, quickly developed into a class action suit including several other current and former employees from the department’s EMS Division. For more on Patterson’s complaint including initial analysis from FirefighterOvertime.org, click here.
Here are some relevant excerpts from Judge Brown’s the ruling:
- Accordingly, to fall within the definition, [§207(k) firefighter] an employee must: (1) be trained in fire suppression; (2) have the legal authority to engage in fire suppression; (3) have the responsibility to engage in fire suppression; (4) be employed by a fire department of a municipality, county, fire district, or state; and (5) be engaged either (i) in the prevention, control, and extinguishment of fires, or (ii) in the response to emergency situations where life, property, or the environment is at risk.
- Plaintiffs do not dispute, and indeed have testified, that their employment as Firefighters in the EMS division required them to respond to emergency situations where life was at risk.
- Plaintiffs also clearly were trained in fire suppression.
- To obtain and keep their jobs as Firefighters, they were required to hold TCFP certifications in structure protection and aircraft rescue firefighting. Plaintiffs also were required to, and did, undergo additional training beyond the minimum certification standards.
- Having graduated from fire academy and received their certifications, plaintiffs were trained in fire suppression for purposes of section 203(y).
- Plaintiffs also were employed by a fire department of a municipality, county, fire district, or State.
- At issue, then, remains whether plaintiffs had the legal authority and responsibility to engage in fire suppression. Except for two plaintiffs who each participated in a live fire training exercise, plaintiffs did not, and were not asked to, perform any fire suppression activities while working in the EMS division during the three years prior to this suit’s filing.
- Instead, plaintiffs provided medical services and were assigned to a Mobile Intensive Care Unit (MICU) or Trauma Unit 611, which was used for mass casualty incidents and carried medical and trauma supplies
- The MICUs and Trauma Unit 611 did not carry equipment associated with fire rescue or fire suppression. Plaintiffs were issued bunker gear, which consisted of fire-resistant personal protective equipment including a firefighting coat, pants, gloves, boots, a helmet, a hood, and a custom-fit mask designed to be connected to a Self-Contained Breathing Apparatus (SCBA). Plaintiffs had their bunker gear with them when assigned to a shift, but there is no evidence they were required to wear it. SCBAs were not kept in MICUs or Trauma Unit 611, but were available on fire vehicles and in the Airport’s Fire Training and Research Center. In a typical air rescue firefighting response, extra SCBAs were available for any Firefighter dispatched to the scene.
- Plaintiffs do not dispute that they were dispatched to fire scenes on occasion, but they were not required to respond to all fire alarms and fire scenes represented a small number of the incidents to which they were called upon to respond. Further, they were never dispatched to an incident to engage in fire suppression or, once on scene, expected to engage in fire suppression.
- Plaintiff Richard Bird testified that Battalion Chief Jim Hartman advised that Bird was not responsible for any fire suppression. Plaintiff Ashley Posey also testified she was told she was not allowed to engage in fire suppression. Instead, Posey was told she was “on the ambulance” only while she worked in the EMS division and was not even allowed to “help like up hose or anything”.
- A DPS Job Description identifies the principal duties and responsibilities for DPS Firefighters. It lists 22 non-exclusive duties and responsibilities, among which was performing general fire/rescue work “including but not limited to emergency medical scenes, fire incidents, environmental and hazardous material incidents, technical rescue incidents, search and rescue operations and other fire service related emergency requests”. According to the Job Description, DPS Firefighters may perform any or all of the duties “[d]epending on Fire Services area of assignment as determined by departmental requirements, and at the discretion of the department…”. The Job Description also notes that Firefighters “[m]ay work around fire, liquid fuels and hazardous chemicals”.
- A separate DPS Standard Operating Procedure (SOP) addresses the policies, procedures, and responsibilities of the EMS division, which was “established to provide profession emergency medical services to patrons, employees and tenants of the airport”. The policies, procedures, and responsibilities relate to providing and reporting on medical services, including, among other things, maintaining treatment and rehabilitation areas and transporting patients in the event of structure fires, hazardous materials incidents, and aircraft alerts. The SOP, however, does not contain any procedures or responsibility related to fire suppression activities. Consistent with the SOP, the mission of the EMS division was to “provide exceptional prehospital medical care in both routine aviation and mass casualty environments by applying superior technical skills, compassion, and professionalism”.
- In a declaration, DPS Fire Chief Brian McKinney averred that “Firefighters in the EMS division are an integral response of the DFW Fire Services team because they are trained in fire suppression, so that they can function on fire grounds and perform fire suppression tasks if required to do so”. According to McKinney, [i]t is the policy of [DFW] that Firefighters in the EMS division are trained in and legally authorized to perform fire suppression when necessary or called upon to do so by a supervisor” and, “when they respond to fire grounds as part of [DFW’s] emergency response team, they can discharge their responsibility to engage in fire suppression when it is appropriate for them to do so”.
- McKinney’s declaration does not provide any evidence showing when an EMS division Firefighter may have been called upon to perform fire suppression or when it would have been necessary or appropriate for them to do so. Further, McKinney’s declaration is written in present tense. In October 2019, EMS and Fire Services divisions were merged into a “Emergency Operations” division, and there is evidence that changes were made to EMS division Firefighter duties and responsibilities prior to the merger, but after this lawsuit was filed.
- For example, SCBA equipment was placed in MICUs. Plaintiffs become “part of fire” and “started integrating more with the firefighters,” working on engines, becoming more involved in fire training,” and, for the first time, were automatically dispatched to certain fire alarm calls. According to Randall Lee Rhodes, DFW’s Rule 30(b)(6) representative and now-retired DPS Assistant Fire Chief, there were “steps” in place to effectuate the merger prior to 2018. However, several plaintiffs testified that their job duties did not change until after this lawsuit was filed in February 2018. Accordingly, it is unclear if McKinney’s declaration pertains to DFW policy before this suit was filed.
- There also is summary judgment evidence that plaintiffs were not appropriate personnel to respond to, at least, aircraft rescue and firefighting incidents. Specifically, the Airport’s operation was subject to FAA regulations, which include a requirement that aircraft rescue and firefighters receive recurrent live fire drill training every twelve months. Plaintiffs did not receive the training because they were not part of the “frontline units,” consisting of Mass Application Vehicles, Rapid Intervention Vehicles, and structural units, that responded to aircraft emergencies.
- The fact that DFW required plaintiffs to hold firefighting certifications is some indication that they might be expected to engage in fire suppression. However, neither Chief McKinney’s declaration nor any other evidence shows the circumstances, other than the odd training exercise, under which plaintiffs might have been required to engage in fire suppression prior to this lawsuit being filed.
- Instead, they were assigned exclusively to MICUs or Trauma Unit 611, neither of which held any firefighting equipment. They were not dispatched to every fire incident and did not wear their bunker gear when responding to calls.
- Perhaps most importantly, the SOP setting out their procedures and responsibilities made no reference to fire suppression. Nor is there any evidence that plaintiffs would be disciplined for failing to engage in fire suppression. Without more, the Court finds DFW has not met its burden to show, or raised a genuine issue of material fact, that plaintiffs had even a forward-looking obligation or responsibility to engage in fire suppression as EMS division Firefighters before this suit was filed.
- Accordingly, plaintiffs are entitled to summary judgment that they were not employees in fire protection activities and the section 207(k) exemption does not apply.
There is a common misconception in the fire service that if a paramedic is trained as a firefighter, he or she will automatically meet the requirements of the §207(k) partial overtime exemption. As if there is some sort of connection between being trained as a firefighter and having the responsibility to actually engage in firefighting. This case clearly indicates that is not always the case. Each situation is different and deserves its own separate analysis.
Fire departments that utilize the FLSA’s §207(k) partial overtime exemption for cross-trained firefighter/EMTs must examine their policies and procedures to ensure that all of the partial exemption’s requirements are satisfied. Failure to do so could result in FLSA violations and costly overtime claims.
The stakes are extremely high in this type of lawsuit. For starters, improperly classified EMTs will receive back pay (at overtime rates) for all hours worked over 40 every 7 days for the last two or three years. In addition, the FLSA typically requires liquidated damages paid to plaintiffs in these types of claims. Liquidated damages equal the amount of back wages owed. If you are keeping track, that doubles each plaintiff’s back-pay amount. Plus, the fire department will be responsible for paying the plaintiffs’ attorneys’ fees when the case is finally wrapped up. Finally, the fire department will likely be on the hook for significant attorney’s fees related to the defense of the lawsuit.
The litigation in this lawsuit is far from over. This ruling only settles the first question presented in the lawsuit; Whether DFWFD could claim the FLSA’s §207(k) partial overtime exemption for firefighter/medics assigned to the EMS Division. Now, the litigation will continue over the extent of damages that the plaintiffs are entitled and other factual questions over failure of DFWFD to include several wage augments in the firefighter/medics’ regular rate of pay. Those issues are scheduled for trial in early 2021 unless the parties can reach a reasonable court-approved settlement prior to that time. We will keep you posted on this one. Here is a copy of the decision.