William Perry, a firefighter and dispatcher for the East Greenwich Fire Department, has filed an FLSA suit against his employer, the Town of East Greenwich, Rhode Island. The suit which was filed on March 23, 2018, in federal court alleges the town willfully violated the FLSA over the past three years. Perry is seeking back wages, liquidated damages, and attorney’s fees.
Perry filed the suit on behalf of himself and other similarly situated current and retired East Greenwich firefighters. The complaint alleges FLSA violations related to hours worked and the regular rate.
First, Perry claims he and other firefighters were not paid overtime for all hours worked over the statutory maximum for each work period. The FLSA requires firefighters be paid at least time and one-half of the regular rate for all hours worked over 53 every 7 days, or 212 every 28 days.
The union contract between the Town of East Greenwich and the East Greenwich Firefighters Union, Local 3328 contains a provision related to “collateral duties.” These collateral duties range from dispatching, training, communications, fire prevention, EMS coordinator, and Haz-mat officer. The contract requires collateral duties be paid at the firefighter’s regular hourly rate (i.e. straight time). However, according to the complaint the town fails to combine the hours firefighters perform collateral duties in conjunction with scheduled work shifts. For more on part-time collateral duties and the FLSA click here.
There can be very limited circumstances where hours worked at two different jobs for the same employer are not combined for FLSA overtime purposes. These provisions can be found in the FLSA at 29 U.S.C. §207(p)(2):
- If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.
Here, the town will most likely need to prove two critical points in order to defeat Perry’s claim related to hours worked:
- The collateral duties are performed on an occasional or sporadic basis. The Department of Labor (DOL) has defined occasional or sporadic to mean “infrequent, irregular, or occurring in scattered instances.” See 29 CFR 553.30(b)(1); and
- The collateral duties are different from any regular firefighting duties the firefighters perform. Unfortunately for the town, this could present a significant challenge. DOL regulations contain the following provision: Public safety employees taking on any kind of security or safety function within the same local government are never considered to be employed in a different capacity. See 29 CFR 553.30(c)(3).
Finally, the complaint also alleges the town failed to include longevity pay in Perry’s regular rate of pay. The regular rate must include “all remuneration for employment paid to, or on behalf of, the employee.” Generally speaking, longevity payments must be included in a firefighter’s regular rate. For more on longevity pay and firefighters click here.
This suit will certainly be a hot topic at the upcoming Fair Labor Standards Act (FLSA) for Fire Departments seminar being held in Providence on May May 30, – June 1, 2018. Please consider joining us. Click here for more information.
Here is a copy of Perry’s complaint.