Prince George’s County, MD Fire Investigators File FLSA Suit

Fourteen fire investigators for the Prince George’s County Fire Department have filed a federal lawsuit in the U.S. District Court for the Southern District of Maryland, alleging the county violated the FLSA. The crux of the investigators’ claim lies with the way the county pays its fire investigators overtime, or more precisely, how many hours a fire investigator must work before receiving FLSA overtime.   

According to the complaint filed by the investigators, Prince George’s County Fire Department pays its fire investigators similar to firefighters (i.e. employees engaged in fire protection activities) under the FLSA’s §207(k) partial overtime exemption. The investigators claim they should be classified law enforcement personnel as opposed to employees engaged in fire protection activities for FLSA overtime purposes. For those not familiar with the difference between the two, the FLSA’s §207(k) partial overtime exemption carves out two very unique exceptions within the Acts standard overtime requirements that only impact law enforcement and fire protection employees, albeit in slightly different ways.

Generally speaking, the FLSA requires non-exempt employees receive overtime for all hours worked over 40 every 7 days. However, there are numerous exceptions to this general rule. Included in these exceptions is the common §207(k) partial overtime exemption for law enforcement and fire protection personnel.

While this partial overtime exemption applies to both law enforcement and fire protection personnel, law enforcement personnel are treated slightly superior (in the realm of potential overtime pay) when compared to their firefighting counterparts. Firefighters are required to work 53-hours per week, or 212 hours every 28-days before being eligible for FLSA overtime. Law enforcement personnel are only required to work 43-hours per week, or 171 hours every 28-days before being eligible for FLSA overtime.

Some municipal public safety employees—like fire investigators—may perform both law enforcement and firefighting activities during their day-to-day activities. From the employer’s standpoint, it is highly advantageous to utilize the firefighter overtime standard for these types of workers whenever possible. However, simply labelling the employees as a firefighter does not entitle the employer to claim the higher firefighter overtime standard.

Department of Labor regulations found at 29 CFR §553.213 entitled Public agency employees engaged in both fire protections and law enforcement activities, provide a rather straightforward roadmap for employers to follow in these situations. Here is the text from that regulation:

(a) Some public agencies have employees who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This dual assignment would not defeat . . . the . . . 7(k) exemption, provided that each of the activities performed meets the appropriate tests set forth in §§ 553.210 and 553.211. . . 

(b) As specified in §553.230, the maximum hours standards under section 7(k) are different for employees engaged in fire protection and for employees engaged in law enforcement. For those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period. 

Here are some relevant portions from the complaint:

Under the U.S. Department of Labor’s regulations applicable to “law enforcement” employees covered under 29 U.S.C. §207(k), (29 C.F.R. §553.230), an employer must pay overtime compensation to such employees at a rate not less than one and one-half times their regular rate of pay for hours of work in excess of 43 hours in a 7-day work period or in excess of 171 hours in a maximum 28-day work period (or in excess of a proportionate number of hours for work periods between 7 and 28 days, such as hours of work in excess of 96 hours in a 14-day work period).

During the times that Plaintiffs have worked in excess of 43 hours per workweek, 86 hours in a 14-day work period, or 171 hours in a 28-day work period, Defendant has failed to provide them with the rights and protections provided under the FLSA, including overtime pay at the rate of one and one-half times their regular rates of pay for all hours worked in excess of the hourly standards set forth under 29 U.S.C. § 207(k) and 29 C.F.R. §553.230.

By failing to pay the Plaintiffs the overtime pay required under the law, Defendant has violated and is continuing to violate the provisions of the FLSA in a manner that is unreasonable, willful, and in bad faith. As a result, at all times material herein, Plaintiffs have been unlawfully deprived of overtime compensation and other relief for the maximum, three-year period allowed under the law.

As a result of Defendant’s willful, unreasonable, and bad faith violations of the FLSA, there have become due and owing to Plaintiffs an amount that has not yet been precisely determined. The employment and work records for Plaintiffs (including time and attendance records) are in the exclusive possession, custody, and control of Defendant and Plaintiffs are unable to state at this time the exact amount owing to them. Defendant is under a duty imposed under the FLSA, 29 U.S.C. § 211(c), and various other statutory and regulatory provisions, to maintain and preserve payroll and other employment records with respect to Plaintiffs from which the amount of Defendant’s liability can be ascertained.

Pursuant to 29 U.S.C. § 216(b), Plaintiffs are entitled to recover liquidated damages in an amount equal to their backpay damages for Defendant’s failure to pay overtime compensation.

Plaintiffs are entitled to recover attorneys’ fees and costs under 29 U.S.C. § 216(b).

We will be keeping a close eye on this one as it develops.

Here is a copy of the complaint.

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