On April 2, 2019 three San Diego firefighters filed suit in the U.S. District Court for the Southern District of California alleging the City of San Diego violated the Fair Labor Standards Act (FLSA). For more on that story from FirefighterOvertime.org click here. However, in the past five weeks alone, another 250 city firefighters have elected to “opt-in” on this original lawsuit and are making similar allegations against the city.
This is very common in FLSA overtime litigation. A complaint is filed in court by one or several employees (or very often a former employee or employees). The original plaintiffs make general statements outlining the alleged violations; however, these plaintiffs also include other “similarly situated” individuals as potential future unnamed plaintiffs in the lawsuit. These unnamed plaintiffs can then opt-in on the lawsuit during the initial stages of litigation. In some instances, the court will even compel the employer to provide the names of current and past employees to the plaintiff’s attorneys so they can be notified about the pending lawsuit. A simple allegation by one or two plaintiffs can quickly evolve into a much larger class-action lawsuit in a very short amount of time.
According to the San-Diego Union Tribune more than 2,500 city employees are currently suing the City of San Diego for alleged violations of the FLSA. The majority of these lawsuits stem from the city’s failure to include cash paid in lieu of employer sponsored medical benefits in city workers’ regular rate of pay. The FLSA requires virtually all the money an employer pays workers included in the regular rate. This even includes money that is paid to a worker in lieu of receiving employer sponsored medical benefits.
Properly calculating a firefighter’s regular rate of pay can be down-right frustrating. Part of this frustration results from the way many firefighters are paid. Most firefighters receive a base hourly rate of pay. In addition to this base hourly rate, firefighters often receive additional money for various reasons. These reasons include longevity, certifications or qualifications (medic pay, advanced degrees, etc.), working out-of-rank, and in some instances declining medical benefits. As a general rule, all of this money must be included in a firefighter’s regular rate of pay. Since all FLSA overtime must be (at least) time and one-half of the employee’s regular rate of pay, failure to include various wage augments in the regular rate will result in short-changing the firefighter’s overtime rate. It is no surprise that regular rate violations continue to be the most common FLSA violation alleged by firefighters today.
Here is more on the story from The San Diego Union-Tribune.