The City of New York is once again facing an FLSA lawsuit filed by FDNY Emergency Medical Services (EMS) workers. In a 15-page complaint filed in the U.S. District Court for the Southern District of New York on September 16, 2021, three named plaintiffs claim the City of New York is systematically underpaying its EMS workers. Specifically, the complaint alleges that the city fails to include longevity pay, various pay differentials, and other bonuses paid to EMS workers in their regular rate of pay. Consequently, EMS workers are being shorted on their overtime rate. As of today, there are only three city workers in the suit, however attorneys representing these workers estimate more than 500 additional plaintiffs could eventually join. Most likely this lawsuit will evolve into a large collective action consisting of hundreds of EMS workers over the course of the next several months or even years.
The basic allegations made in the complaint are fairly common. The FLSA requires virtually all the money received by an employee, something the FLSA and Department of Labor (DOL) regulations refer to as remuneration, included in an employee’s regular rate of pay. Additionally, the FLSA requires that all federally mandated overtime be paid at a rate not less than time and one-half of the employee’s regular rate. Failure to include all remuneration in the regular rate artificially lowers the employee’s overtime rate, which in-turn results in an FLSA regular rate and overtime pay violation. Allegations of improper regular rate calculations continue to be the most common claim made in FLSA lawsuits filed by firefighters and other first responders.
Employers often mistakenly utilize an employees’ base or negotiated pay rate as the basis for computing that employees’ overtime pay. For example, a collective bargaining agreement or city policy may set an EMT’s base pay rate at $25 per hour. However, that EMT may also receive additional pay beyond his or her hourly rate. It is very common for EMTs to receive longevity bonuses, paramedic and other certification stipends, and even shift differential pay. The FLSA requires this additional remuneration (i.e., wage augments) included in the EMT’s regular rate. If the employer based the EMT’s FLSA overtime rate on the base rate of $25 per hour ($37.50 per hour) and not the EMT’s regular rate, the EMT wouldn’t be receiving overtime pay as required by the FLSA. Again, this is a relatively common and surprisingly easy to fix FLSA mistake.
Here is a copy of the latest complaint.
Plus, here are some recent FirefighterOvertime stories related to the the City of New York, FDNY and the FLSA.