Virginia Beach Faces Overtime Lawsuit from EMS Captains

A small group of current and former EMS Captains for the City of Virginia Beach’s Emergency Medical Services Department have filed a federal lawsuit alleging the city’s pay practices violate both the FLSA and Virginia state law. According to the medics’ complaint, which was filed earlier this week in federal court, the city improperly classifies EMS Captains as overtime exempt employees in violation of the FLSA. Additionally, the medics allege the city fails to include hours spent in “paid leave status” as hours worked for overtime purposes in violation of the Virginia Gap Pay Act.

According to the complaint, VA Beach medics work a rotating schedule of 12-hour shifts for three days on-duty, followed by 3 days off-duty. This combination results in medics working between 36 and 48 hours per week depending on their specific shift assignment. The medics claim they receive a set salary each workweek without any overtime. The medics further claim that since they are not cross-trained firefighters or high-level supervisors they should receive FLSA overtime pay after working forty hours in a seven-day workweek.

As a general rule, the FLSA prohibits employers classifying first responders as overtime exempt “white-collar” employees. If an employer wants to classify any firefighter or paramedic as an overtime exempt “white-collar” employee, it must prove that the firefighter or medics “primary duty” is acting as a manager and not a first responder. The Department of Labor (DOL) defines an employee’s primary duty as the “employee’s principle, main, major, or most important duty” they perform. Basically, in order to properly classify a paramedic as an overtime exempt “white-collar” employee, his or her most important job duties must be related to the management of the organization and not working as a paramedic.

Is the supervisor or senior medic assigned to an overnight shift on an EMS rig a manager of the business or a first responder? Similarly, is an EMS supervisor assigned to a fly-car or buggy a high-level manager or a first responder? White-collar overtime exemptions are evaluated on a case-by-case basis. Each situation is slightly different from the next. It is entirely possible for supervisory medics in one city being properly classified as overtime exempt, however supervisory medics in the next community are overtime eligible. We will have to see how this case develops.

Finally, the medics also claim that the city is violating Virginia’s very unique statute that requires public employers count hours spent by firefighter/EMTs in paid leave status towards hours worked for overtime purposes. This is the second lawsuit filed in Virginia in as many months alleging paramedics were shorted overtime required under Virginia Gap Pay Act. For a more in-depth look at this highly unique local statute and more information on that first lawsuit, click here.

Here is a copy of the medics’ complaint.