Oklahoma Firefighters Claim Regular Rate Violations in Lawsuit Against City

The City of Chickasha, Oklahoma is facing a lawsuit filed by city firefighters for unpaid overtime. A group of thirty-one, current and former Chickasha firefighters filed the lawsuit in federal court earlier this month. Specifically, the firefighters allege the city failed to include contractually guaranteed longevity payments in their regular rate of pay in violation of the FLSA. As a general rule, longevity payments made to employees cannot be excluded from an employee’s regular rate of pay. Proper calculation of the regular rate is critical since all FLSA overtime is based off of the employee’s regular rate. Failure to include all remuneration in an employee’s regular rate results in shorting that employee’s overtime pay.

 Here are the firefighters’ specific allegations as found in their complaint:

• From November 16, 2017, as well as before and continuing to date, while working as fire fighters and emergency responders in the City of Chickasha’s Fire and EMS Department, plaintiffs have been regularly assigned to work a recurring schedule of 24 hours on duty and 48 hours off duty.
• The City has adopted a 14-day FLSA work period, pursuant to 29 U.S.C. § 207(k), with a corresponding overtime threshold of 106 hours in each work period. Accordingly, under the FLSA, the City must pay plaintiffs one and one-half times their “regular rate” of pay for all work suffered or performed in excess of 106 hours during each 14-day work period. See 29 U.S.C. §§ 207(a), 207(k).
• As a result of the plaintiffs’ recurring schedule, the City regularly suffers or permits plaintiffs to work in excess of the applicable 106-hour overtime threshold in a 14- day work period.
• For example, in a 14-day work period in which plaintiffs work five regularly scheduled 24-hour shifts, defendant has suffered or permitted at least 120 hours of work, including at least 14 hours of overtime work beyond the 106-hour overtime threshold.
• In addition to their base rates of pay, plaintiffs earn certain contractual incentive payments pursuant to the governing collective bargaining agreement (“CBA”).
• One of the contractual incentives under the CBA, called “Longevity Pay,” is paid as a lump sum on the first regularly scheduled payroll in December. It is calculated at $7.00 per month per year of service. Both the amount and payment of Longevity Pay are set by contract, and therefore it is a non-discretionary bonus.
• As a non-discretionary bonus, Longevity Pay must be included in the regular rate of pay when calculating overtime compensation. See 29 C.F.R. § 778.207(b); 29 C.F.R. § 778.211; see also Featsent v. City of Youngstown, 70 F.3d 900, 902-905 (6th Cir. 1995) (nondiscretionary longevity payments pursuant to a collective bargaining agreement and City ordinance must be included in the regular rate); Moreau v. Klevenhagen, 956 F.2d 516, 521 (5th Cir. 1992) (longevity payments that are required by an ordinance and a bargaining agreement may not be excluded from the regular rate), aff’d, 123 L. Ed. 2d 584, 113 S. Ct. 1905 (1993).
• However, for the time period of October 16, 2017, as well as before, and continuing through the present and ongoing, the City has failed and continues to fail to incorporate the Longevity Pay into plaintiffs’ regular rate of pay when calculating their overtime compensation.

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