A group of fourteen paramedics filed a federal lawsuit last week alleging their employer, the City of Portsmouth Virginia, Fire Rescue and Emergency Services Department failed to pay them overtime as required by both the FLSA and Virginia law. According to the complaint, the medics work on a 14-day rotating schedule consisting of three 12-hour work shifts during the first week, followed by four 12-hour work shifts the second week. This combination results in paramedics working either 36 or 48 scheduled hours per week.
The medics make several straight-forward—and somewhat common—allegations regarding possible FLSA violations. First, according to the medics’ complaint, the city fails to pay them overtime for all hours worked over 40 during their 48-hour workweeks. The medics refer to the forty-eight-hour workweek as their “long week.” Additionally, the medics allege the city fails to pay them any overtime if they utilize any paid leave during any workweek, regardless of the actual number of hours worked in that workweek.
As a general rule, the FLSA requires employers pay their employees for all hours worked over 40 in a 7-day workweek. Employers must evaluate each workweek separately and determine overtime eligibility based upon the number of hours actually worked, as opposed to scheduled vs. non-scheduled hours.
Here are some relevant excerpts from the medics’ complaint related to the alleged FLSA violations:
- During the times that Plaintiffs and other similarly situated employees have worked in excess of 40 hours in a workweek, Defendant has failed to provide Plaintiffs and other similarly situated employees overtime pay at the rate of one and one-half times their regular rates of pay for all hours Plaintiffs and other similarly situated employees have worked in excess of the hourly standards set forth under 29 U.S.C. § 207(a).
- Specifically, if Plaintiffs take paid leave and then work additional, unscheduled hours of work within the same workweek, Defendant compensates Plaintiffs with only straight time compensation instead of time-and-a-half overtime compensation for the unscheduled hours, regardless of whether the actual hours worked, exclusive of paid leave, exceed 40 hours in a work week.
- By failing to pay the Plaintiffs and other employees similarly situated the overtime pay required under the law, the Defendant has violated and is continuing to violate the provisions of the FLSA in a manner that is unreasonable, willful, and in bad faith. As a result, at all times material herein, the Plaintiffs have been unlawfully deprived of overtime compensation and other relief for the maximum period allowed under the law.
In addition to the alleged FLSA violations, the medics also argue the city violated the Virginia Gap Pay Act. The State of Virginia has enacted a rather unusual regulation related to overtime pay for fire protection and law enforcement employees. Specifically, the law requires most public agency employers [i.e. fire and police departments] count “paid leave” hours towards overtime eligibility for the work period. Here is the language from this highly unique regulation:
§9.1-701. Overtime compensation rate.
A. Employers shall pay fire protection or law-enforcement employees overtime compensation or leave, as under the Fair Labor Standards Act, 29 U.S.C. § 207 (o), at a rate of not less than one and one-half times the employee’s regular rate of pay for all hours of work between the statutory maximum permitted under 29 U.S.C. § 207 (k) and the hours for which an employee receives his salary, or if paid on an hourly basis, the hours for which the employee receives hourly compensation. A fire protection or law-enforcement employee who is paid on an hourly basis shall have paid leave counted as hours of work in an amount no greater than the numbers of hours counted for other fire protection or law-enforcement employees working the same schedule who are paid on a salaried basis in that jurisdiction.
B. Nothing in this chapter shall be construed to affect the right of any employer to provide overtime compensation to fire protection or law-enforcement employees in an amount that exceeds the amounts required by this section.
C. The provisions of this section pertaining to law-enforcement employees shall only apply to employers of 100 or more law-enforcement employees.
The medics’ complaint offers a good example of how local wage and hour statutes and regulations can also impact an employee’s overtime rights. Employers should have a firm understanding of both the FLSA and local wage and hour laws. Whether the Virginia Gap Pay Act is applicable to single-role fire department medics and EMTs, as well as fire protection or law enforcement personnel [i.e. 207(k) firefighters and police officers] remains to be seen, however, I am sure many public agency employers in Virginia will be anxiously watching this case develop.
Here is a copy of the medics’ complaint.