Firefighters, Retroactive Pay Raises and the FLSA

Today’s FLSA Question: I am a full-time firefighter. I recently left my first firefighting job in a small combination department. I worked there for almost 5 years before moving onto a bigger department. My former colleagues at this small combination department recently settled a long-running contract dispute with the town. As a result of this settlement, the firefighters will be receiving several retroactive pay increases spanning the last 3 years. The town has started cutting retroactive paychecks to current firefighters. However, I was just informed that former employees will not receive any retro pay. Even if they worked for the department during the time period the retroactive pay was intended to cover. This must be an FLSA violation, right? Does the FLSA allow a city to exclude former employees from retroactive pay increases?

Answer: This is a really good question. Unfortunately, the scenario that you describe does not present an FLSA issue. The FLSA does not require former employees or even current employees receive pay raises. The FLSA would be relevant if employees or former employees actually received a retroactive pay raise. The FLSA requires retroactive pay increases included in an employee’s regular rate of pay for the “period of its retroactivity”.

Basically, if a fire department opts to pay firefighters a retro pay raise it must include that increase in the firefighter’s regular rate of pay for the period it was intended to cover. Department of Labor (DOL) regulations found at 29 CFR §778.303 aptly entitled Retroactive pay increases provide detailed instructions on how to accomplish this FLSA requirement. For more on that, click here.

However, there are two critical differences between your example and the above cited regulation. First, you are no longer an employee of that fire department. Second, you were not included in the retroactive pay raises provided to firefighters by your former fire department. In essence there is no additional money to apportion back over the period of retroactivity. Believe it or not, the FLSA would not prohibit an employer from providing pay raises based on gender, race, or even age! Obviously, providing employees raises based on these factors would violate numerous local and federal anti-discrimination laws, however, it would not present an FLSA violation. Similarly, whether you or other former employees receive retroactive pay increases from a former employee is simply outside of the FLSA’s scope.

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