A recently retired battalion chief from the Roswell, Georgia Fire Department has filed a federal lawsuit against the City of Roswell alleging the city’s pay practices violate both the FLSA and state laws. Retired Battalion Chief Edwin Vickery filed the lawsuit on July 28, 2022, in the U.S. District Court for the Northern District of Georgia. Here is a breakdown of Vickery’s FLSA and state law claims.
According to the complaint, Vickery alleges that the city misclassified him and other battalion chiefs as overtime exempt employees. Quoting from the complaint:
- Plaintiff was employed by the City of Roswell Fire Department from on or about September 10, 2007 through April 13, 2022.
- During his 14+ year career, Plaintiff held the positions, at various times, of Fire Captain and Battalion Chief.
- From on or about September 20, 2010 until his retirement on or about April 13, 2022, Plaintiff was employed by Defendant as a Battalion Chief in the Fire Department.
- The City of Roswell Fire Department employs approximately 225 sworn firefighters of various ranks and operates 7 (seven) fire stations.
- The City of Roswell Fire Department employs three (3) Battalion Chiefs, with one (1) Battalion Chief on duty at any given time.
- As a Battalion Chief, Plaintiff was stationed at and was assigned to a fire station.
- As a Battalion Chief, Plaintiff worked a shift of twenty-four (24) hours, followed by forty-eight (48) hours of being off-duty, which is the same work schedule as all other firefighters.
- As a Battalion Chief, Plaintiff was not paid any overtime pay for hours worked in excess of 212 hours in any given twenty-eight (28) day work period.
- As a Battalion Chief, Plaintiff’s primary duty was to fight fires, rescue fire and accident victims and minimize property damage from accidents and fires.
- Defendant has adopted the Roswell Fire Department Policy and Procedure Manual which set forth, among other things, the types of calls that Plaintiff, as a Battalion Chief, would be required to respond.
- Section 202 of the Roswell Fire Department Policy and Procedure Manual is entitled “Apparatus Response” and requires Plaintiff, as a Battalion Chief, to respond to the following types of emergency calls: all structural fires, all smoke calls where smoke is visible inside a structure, all inside gas leaks calls, all hazardous materials calls, all bomb threat calls and all water and rope rescue calls.
- In addition to the calls described in the above-paragraph, Plaintiff, as a Battalion Chief, would respond to any call in which more than one engine was sent and to all mass casualty and gunshot wound calls.
- While Plaintiff would direct the work of other firefighters and rescue personnel at the scene of the calls on which he responded, Plaintiff also performed the work of fire extinguishment and rescue of accident victims.
- Defendant classified Plaintiff and the other Battalion Chiefs as wholly exempt from the FLSA’s overtime requirements and has not paid Plaintiff for hours worked in excess of 212 hours in any given twenty-eight (28) day work period since he became a Battalion Chief.
- Plaintiff also regularly performed work while not on shift and for which Defendant did not maintain accurate time records. Such work included but was not limited to attending a monthly Battalion Chiefs’ meeting which lasted approximately three (3) hours on average.
- Other regular work performed by Plaintiff on days he was not scheduled to work and for which Defendant did not maintain accurate time records included attending meetings, answering phone calls, receiving and sending text messages, reading emails, serving on “on-call’ capacity, completing evaluations and reports, responding to emergencies, scheduling and other tasks.
- Had Defendant not classified Plaintiff as exempt from the overtime pay requirements of the FLSA, Plaintiff would have been paid overtime pay which would be reflected on Plaintiff’s W-2 forms for 2019, 2020, 2021 and 2022.
- The amount of pension Plaintiff is to receive is based in part on the highest 36 month’s pay over a seven (7) year period.
Whether any high-ranking fire department officer [shift commanders, battalion chiefs, deputy chiefs, etc.] can be properly classified as an overtime exempt executive employee depends on the specific facts involved. It is possible to have a battalion chief in one community properly classified as overtime exempt, while the battalion chief in a neighboring jurisdiction is entitled to FLSA overtime.
Breach of Contract Claims
In addition to making claims related to the FLSA, Vickery also raises a breach of contract claim related to employee benefits that he alleges he should have received at the time of his retirement. Quoting further from the complaint:
- During the Plaintiff’s employment with Defendant, Defendant had a PTO policy under which both exempt and non-exempt firefighters would accrue Paid time Off (“PTO”) each pay period.
- Pursuant to the PTO policy, employees are to be paid out all their accrued PTO upon separation from employment.
- Plaintiff accrued PTO under the PTO Policy.
- The PTO Policy was drafted by Defendant.
- Plaintiff played no role whatsoever in drafting the PTO Policy and had no input into the content or wording of the PTO Policy.
- Defendant has refused to pay Plaintiff for all the PTO he accrued upon his separation from employment and has only paid him a portion of his accrued PTO.
- Defendant had a policy of compensating employees for holidays regardless of whether the employee worked the holiday.
- Fire Chief Pennino unilaterally eliminated Holiday pay for Battalion Chiefs on or about January 13, 2022 including eliminating all accrued Holiday pay/leave time. Accrual of this type of leave had been awarded since on or about September 10, 2010.
- Plaintiff was earning approximately $47.22 per hour at the time of his separation from employment.
- Plaintiff is owed payment for all accrued PTO and accrued Holiday pay at the rate of $47.22 per hour.
- In reliance upon the express written terms of the Compensatory Time Policy, Plaintiff saved his accrued PTO and Holiday leave rather than use it, in an effort to maximize his payout upon his retirement.
- Plaintiff would have used and would not have saved his accrued PTO and Holiday leave had he known Defendant would refuse to pay him for these hours.
- Plaintiff has substantially complied with all obligations imposed upon him by his employment contract with Defendant by working sufficient hours to accrue PTO and Holiday leave as of the date of his separation from employment.
- Defendant has breached its contract with Plaintiff by failing to pay him all of his accrued PTO hours and accrued Holiday leave upon his separation from employment.
Vickery’s allegations relative to the payment of accrued PTO does not fall under the FLSA. The FLSA does not require employers provide employees with any paid time off. However, state law may require an employer compensate an employee for accrued paid leave at the time of separation.
We will be keeping a close eye on this case as it makes its way through the legal system. In fact, this is one of several lawsuits that we are following related to high-ranking fire officers and their entitlement to FLSA overtime. Here is more on those lawsuits from FirefighterOvertime:
Do you have questions about fire officers and overtime? If yes, please consider attending our next Advanced FLSA webinar series entitled: Executive Exemption: Fire Officers and Overtime. In this live webinar we take a “deep dive” into why some fire officers can be properly classified as overtime exempt “white-collar” employees, while others are entitled to federally mandated overtime. Our next offering is October 5, 2022, at 1 pm EST. Click here, for more information.
Here is a copy of the complaint.