A group of thirteen Tulsa, Oklahoma firefighters have filed an FLSA lawsuit against the City of Tulsa, the mayor, and the city’s chief operating officer. The thirteen filed the lawsuit on behalf of themselves and other similarly situated employees [i.e., other Tulsa firefighters that will likely join the lawsuit over the next few months] in the U.S. District Court for the Northern District of Oklahoma on February 1, 2022.
The firefighters’ complaint lays out several basic FLSA violations. First, the firefighters allege that the city recently stopped paying any overtime worked during the firefighters scheduled work shifts. Quoting from the complaint:
- Defendants have adopted a 27-day “work period” for the City’s fire protection employees, pursuant to 29 U.S.C. § 207(k). As a result, the applicable overtime threshold for Plaintiffs is 204 hours in each 27-day work period. 29 C.F.R. § 553.230.
- During the relevant time period, Plaintiffs have been assigned to work and did in fact work a regular, repeating schedule of 24-hour shifts—from 8 a.m. to 8 a.m. the following day—followed by 48 hours off. This shift schedule is referred to as a “24/48.”
- In the Tulsa Fire Department, each fire suppression employee, including the Plaintiffs, is given one shift off duty for every 14 regularly scheduled shifts. The off-duty shift is referred to as an “Hours Reduction Shift” or “HRS.”
- As a result of their 24/48 shift schedule and recurring HRS days, Plaintiffs are regularly scheduled to work an alternating pattern of 216 hours in one 27-day work period followed by 192 hours in the next 27-day work period; this schedule repeats. As such, Plaintiffs are regularly scheduled to and do in fact work beyond the 204-hour overtime threshold pursuant to 29 U.S.C. 207(k).
- Plaintiffs are paid a fixed salary every two weeks on their biweekly payday to compensate them for their regularly scheduled hours. Prior to April 2021, Plaintiffs received either “OT FLSA .5” or “OT FLSA 1.5” pay for their regularly scheduled overtime work that exceeded the applicable FLSA threshold.
- However, in or about April 2021, Defendants ceased paying Plaintiffs FLSA overtime for their regularly scheduled overtime work. As a result, Defendants have failed to pay Plaintiffs one and one-half times their regular rate of pay for their regularly scheduled overtime work, as required by the FLSA.
- At all times material herein, Defendants have known and should have known that uncompensated overtime work was being performed by Plaintiffs. For example, Defendants track Plaintiffs’ regularly scheduled shifts, including overtime hours, and any additional overtime shifts that are picked up or worked by the Plaintiffs. Defendants also administer Plaintiffs’ biweekly paychecks and thus knows Plaintiffs have not received FLSA overtime payments for their regularly scheduled overtime work since at least April 2021.
The firefighters’ second allegation relates to the way the city pays the firefighters overtime for unscheduled work hours. The firefighters allege the city fails to pay unscheduled overtime in a timely manner as required by the FLSA. Here is more from the complaint:
- In addition to their regularly scheduled shifts, Plaintiffs also frequently pick up overtime shifts when stations are short on staffing or overtime work is otherwise needed. To be paid for overtime shifts that are not part of their regular shift schedule, Defendants require Plaintiffs to submit a written overtime slip to their supervisors. The overtime request is then passed up to the Assistant Chief level and then transmitted to payroll, where it is supposed to be processed and paid.
- Without explanation or justification, Defendants have frequently failed to issue payment in a timely manner after Plaintiffs submit their overtime slips for payment. At times material from January 28, 2019, and through the present and ongoing, Defendants have unreasonably delayed such overtime payment for periods of weeks or months beyond Plaintiffs’ regularly scheduled biweekly payday. For example, Plaintiff Lamb performed unscheduled overtime work beyond the applicable FLSA threshold on November 28, 2021, and December 11, 2021, in the pay period ending December 11, 2021. Plaintiff Lamb timely submitted an overtime payment request pursuant to Department policy, but payment for such overtime work has been delayed unreasonably by more than 38 days.
- The exact scheduled overtime hours worked by Plaintiffs and the exact workweeks in which Plaintiffs worked over the FLSA statutory maximum number of hours as part of their scheduled work hours can easily be determined by looking at the Plaintiffs’ timekeeping and payroll records, which are in the possession, custody, and control of Defendants.
- Defendants’ actions in refusing to provide Plaintiffs the rights and protections provided under the FLSA are willful in that Defendants knew the City’s pay practices were prohibited by the FLSA or, at the very least, showed a reckless disregard for the FLSA. For example, Defendants knowingly accepted the benefit of Plaintiffs’ regularly scheduled and unscheduled overtime work from at least April 2021 without compensating Plaintiffs at the lawful overtime rate. Moreover, Defendants have failed to ensure that Plaintiffs are timely compensated for unscheduled overtime work for years, even after employees complain about the lack of timely payments.
The FLSA requires employers pay overtime eligible employees for all hours worked each workweek or in the case of firefighters, each work period. It is not uncommon for some employers to believe that scheduled Kelly Days in one work period can count as time off in another work period. That is simply not the case. Each work period stands alone. Employers cannot credit hours taken off in one work period against hours worked in another work period.
The FLSA also requires overtime be paid on the regular payday following the completion of the overtime work. There can be instances, where firefighters must wait until the payday following the end of the adopted work period to receive overtime pay. However, that overtime must be paid as soon as practicable following the end of the work period. Employers cannot put off paying an employee’s overtime beyond these basic limitations.
Do you have questions about Kelly Days, [a.k.a. “hours reduction shifts” in Tulsa] and the impact these scheduled days off have on a firefighter’s hours worked? Do you have questions related to paying firefighters timely at the conclusion of the work period?
If you answered yes to either of these questions, please consider joining us at one of our FLSA for Fire Departments live webinars. The next is only a little more than a week away.
For more on the story from 2NEWS Oklahoma, click here.
Here is a copy of the firefighters’ complaint.