Allegations of Underpaid Firefighter Overtime Quickly Turn into Claims of Retaliation for One Alabama City

Firefighters in the City of Gadsden, Alabama recently filed a federal lawsuit alleging the city’s pay practices violate the FLSA. More recently, the same firefighters are now claiming [in an amended complaint filed on August 11, 2022] that the city has unlawfully retaliated against them in violation of both the FLSA and the U.S. Constitution.

This story begins in May 2022 when a group of current and former Gadsden firefighters filed an FLSA lawsuit in the U.S. District Court for the Northern District of Alabama. The firefighters allege the city’s fire department systematically underpays firefighter overtime by failing to properly calculate the firefighters’ regular rate and overtime pay in violation of the FLSA. Here are the specific allegations from the firefighters’ complaint:

• From April 12, 2019, through the present (the “Claims Period”), the Plaintiffs have worked for the Department in various firefighting and emergency services roles, including in jobs entitled Fire Fighters, Drivers, and Fire Commanders.
• During the Claims Period, Plaintiffs have been assigned to work and did in fact work a regular, repeating schedule of 24-hour shifts followed by 48 hours off. This shift schedule is referred to as a “24/48.”
• Plaintiffs are paid weekly on a salaried basis. As such, they receive 1/52 of their annual salary each pay period as base pay each paycheck.
• Plaintiffs also receive a variety of additional remuneration outside of their weekly salary. The precise amounts and types of pay vary depending on the individual Plaintiff’s rank, certifications, and assignments. These premiums include, among others, longevity pay, EMT pay, and “Acting Pay,” which is a premium paid for work performed at a higher rank.
• The City fails to pay overtime at the correct regular rate of pay under the FLSA for all overtime hours worked in two primary ways. First, when Fire Commanders and Drivers work unscheduled overtime as a “Fire Fighter,” the City will only pay them overtime at the rate of the highest paid “Fire Fighter.” Second, when Fire Fighters and Drivers receive “Acting Pay” during their regularly scheduled or overtime hours, the City fails to include that premium in the regular rate of pay when calculating the amount of overtime owed. As such, the City’s “overtime” rate is less than one and one-half times the “regular rate of pay” for each employee, as required by the FLSA.
• In fact, at times, the City pays less than the base rate of pay for overtime work performed by certain Plaintiffs. For example, some Plaintiffs at the rank of “Fire Commander” make $17.66 per hour for each non-overtime hour worked. They are therefore entitled to overtime compensation of at least $26.94 per hour (more if they receive additional remuneration that is required to be included in calculating their regular rate of pay). These Fire Commanders, however, only receive $17.62 per hour (the overtime rate of the highest paid Fire Fighter) when working unscheduled overtime in the job title of “Fire Fighter.”
• Similarly, Plaintiffs at the rank of Driver make $14.00 per hour for each non-overtime hour worked. Drivers are therefore entitled to overtime compensation of at least $21.00 per hour (and possibly more if they receive additional remuneration that is required to be included in calculating their regular rate of pay). They too only receive $17.62 per hour when working unscheduled overtime in the job title “Fire Fighters.”
• Moreover, while the City is quick to underpay Plaintiffs that are working overtime “under rank,” it does not pay a higher rate of overtime for Plaintiffs that are working up a grade. In fact, not only does it fail to pay Plaintiffs working as a “Driver” or “Commander” the overtime rate applicable to that rank, it also fails to include the “Acting Pay” premium in the regular rate of pay when calculating overtime at the Plaintiffs’ normal ranks.
• These overtime violations have led to other derivative regular rate violations. For example, the City fails to include EMT pay in the regular rate for overtime purposes, but instead includes it as a percentage of total income on each paycheck. In failing to pay the correct amount of overtime however, the City has miscalculated the percentage of EMT pay appropriate for each employee, resulting in further damages.

The FLSA requires “all remuneration for employment paid to, or on behalf of, the employee” included in an employee’s regular rate of pay. Failure to include all remuneration in an employee’s regular rate will lead to shorting that employee’s overtime rate. This can prove challenging for professionals responsible for paying firefighters and other first responders. In fact, regular rate violations continue to be the most common [and avoidable] allegation in FLSA lawsuits involving firefighters today.

Employers often mistakenly believe an employee’s hourly rate set in a labor agreement or city policy is automatically the employee’s regular rate for FLSA purposes. However, the FLSA requires the regular rate to be based upon “actual facts” and not simply an agreement of the parties. As a general rule, EMT pay, longevity pay, and extra pay for acting out-of-rank or grade must be included in an employee’s regular rate of pay.   

Now, let’s fast forward to the firefighter’s claims of FLSA retaliation. Quoting from the same complaint:

• Soon after the Original Complaint in this matter was filed, Plaintiff Wolfe received a call from Tracci Cordell, who works in the City of Gadsden’s personnel office. During that phone call, Cordell said to Plaintiff Wolfe words to the effect of that the City had been considering a pay increase for the Fire Fighters, but that because Plaintiffs in this lawsuit had filed the Original Complaint, not only was the City not going to institute that pay increase, but, the City was also going to eliminate the policy of paying double time overtime rate fire fighters received for working overtime on Sundays, and the City was also going to reduce the rate at which Fire Fighters accrued sick leave.
• Cordell directly attributed the City’s decision to withhold a pay increase and the elimination or reduction of other benefits to the Plaintiff fire fighters’ filing of the instant lawsuit.

Employers must exercise extreme caution when managing employees that have exercised their rights under the FLSA. The FLSA contains broad and far-reaching ant-retaliation provisions. Section 215(a)(3) of the FLSA contains the following:

It shall be unlawful… to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter…

Generally, plaintiff’s attorneys love to see evidence of retaliation after filing a wage and hour claim. The FLSA’s anti-retaliation provisions do not require the plaintiff (i.e. the employee) prove the underlying FLSA claim in order to prevail on a retaliation claim. For example, an employee can claim that his or her employer misclassified them as an overtime exempt employee. The employer can prove the employee was properly classified as overtime exempt, yet still be liable to the employee for damages associated with retaliation.

Additionally, most often damages in FLSA litigation is limited to back wages and liquidated damages. Damages for retaliation can include pain and suffering, punitive damages, and even pain and suffering and emotional damages for the employee’s family members under certain conditions. Bottom line, employers do not want to face retaliation claims in addition to wage and hour claims. Employers need to carefully weigh any action taken against any employee or group of employees that have exercised their rights under the FLSA.

The firefighters’ amended complaint also contains allegations that the city improperly disciplined specific firefighters named in this lawsuit due to comments made on social media in violation of the First and Fourteenth Amendment of the U.S. Constitution.

The firefighters are seeking a jury trail, back pay, damages [including punitive damages for several named plaintiffs], and attorneys’ fees.

For more on the story, from WBRC 6, click here.

Here is a copy of the firefighters’ complaint.