The Cobb County Georgia Fire Department is facing a second lawsuit in as many years for allegedly violating the FLSA. David Simister, a fire captain for Cobb County Fire filed this second suit, on behalf of himself and “other similarly situated individuals,” last week in the U.S. District Court for the Northern District of Georgia. Simister claims the county’s pay practices violate several provisions of both the FLSA and Department of Labor (DOL) regulations.
The primary allegations contained in Simister’s complaint are related to the failure to pay captains overtime when required by the FLSA and failing to properly calculate their regular rate of pay. According to the complaint, Simister and other captains worked additional hours, beyond their assigned 24/48 firefighting schedule, in other county departments. Specifically, Simister claims that he worked additional hours in both the county’s senior services and elections departments. Simister alleges the county failed to pay him and other captains overtime when required by the FLSA and also did not include the wages earned working in different county departments in the captains’ regular rate for that work period.
For example, if a city employee works full-time as a firefighter/EMT and also part-time as a school bus driver (one or two days per week), the hours worked in both capacities must be totaled for FLSA overtime purposes. Additionally, as a general rule, the money earned as a school-bus driver must be included into the firefighters regular rate calculation for the work period. Technically, there are two different ways of calculating an employee’s regular rate when he or she earns two different rates of pay in the same workweek, however that is a discussion best left for another time.
Simister also alleges that when he and other captains “engaged in a protected activity,” or in other words complained about the county’s pay practices, the county retaliated against them by terminating their employment in the other county departments. Employee misclassification and failure to calculate an employee’s regular rate correctly are relatively common FLSA violations, however the inclusion of a retaliation claim could raise the stakes significantly for the county. If proven, FLSA retaliation often drastically increases the potential damages associated with a wage and hour claim to beyond the typical back wages, liquidated damages, and attorneys’ fees.
Simister also references a previously settled FLSA lawsuit with another Cobb County Fire captain in his complaint. In that lawsuit, Jack Sorrells, a recently retired Cobb County Fire Captain alleged he and other captains were improperly classified as overtime exempt “white-collar” employees. Sorrells filed the suit shortly after his retirement in 2018. The county settled Sorrells’ claims for around $7,000 in back wages and damages, however Sorrells’ attorneys received over $29,000 in fees and costs as part of the settlement. Simister alleges the county “forced several fire captains to sign settlement agreements” following Sorrells’ lawsuit. As a general rule, FLSA settlements must be approved by either a court or the DOL in order to be binding on all the parties.
Here is a copy of Simister’s complaint.