Court Finds for KC Firefighters in FLSA Regular Rate Lawsuit

A United States Magistrate Judge has ruled in the favor of more than 450 Kansas City, Missouri firefighters following their FLSA lawsuit against the city. In a 2019 lawsuit, Kansas City firefighters claimed the city failed to include a wide range of wage augments in their overtime rate of pay. The FLSA requires “all remuneration for employment paid to, or on behalf of, the employee” included in an employee’s regular rate of pay. Failure to include all remuneration in an employee’s regular rate will lead to shorting that employee’s overtime rate.

As a general rule, properly calculating any employee’s regular rate can be challenging. This fact is especially true for firefighters and other first responders. Additionally, when you factor in the excessive amounts of overtime most firefighters and other emergency responders consistently work today, the financial implications from making a simple mistake grow exponentially.

Here, Kansas City firefighters made rather basic claims related to the city’s failure to include various wage augments in their regular rate of pay. Here, is an excerpt from the decision that lists the wage augments the firefighters sought to have included in their regular rate of pay:

• Members with an associate degree “in a field reasonably related to the fire service… shall receive…$25.00 per pay period.”
• Members with a bachelor’s degree “in a field reasonably related to the fire service… shall receive…$50.00 per pay period.”
• Members with a master’s degree “in a field reasonably related to the fire service… shall receive $65.00 per pay period.”
• • Members with a doctoral degree “in a field reasonably related to the fire service …shall receive $75.00 per pay period.”
• Hazardous Materials (“HazMat”) Team members “who achieve and maintain the operational level of training and certification shall receive additional pay of three percent (3%) above what his/her salary would otherwise be.”
• HazMat Team members “who achieve and maintain the technical level of training and certification shall receive additional pay of five percent (5%) above what his/her salary would otherwise be.”
• Aircraft Rescue and Firefighting (“ARFF”) Division members “who achieve and maintain the required ARFF training and certification shall receive additional pay of five percent (5%) above what their salary would otherwise be.”
• “Members assigned to Pumpers 8, 9, [and] 25” and District 102 District Safety Officers (“DSOs”) who “achieve and maintain the required ARFF training and certification shall receive additional pay of three percent (3%) above what their salary would otherwise be.”
• Members “assigned to Pumper 16 shall receive additional pay of five percent (5%) above what their salary would otherwise be, if they have participated in ARFF training.”
• Rescue Division members “shall receive additional pay of five percent (5%) above what their salary would otherwise be.”
• Credentialed members “permanently assigned to a cross trained dual role ALS [advanced life-saving]7 company…shall receive three percent (3%) bonus pay.”
• “Members who have successfully completed a language proficiency assessment of a foreign language or American Sign Language…shall receive $50.00 per pay period.”
• Members serving as field training officers or instructors in specified areas receive additional pay of ten percent (10%) above what their salary would otherwise be.

In the end, the court found that although the city properly calculated the firefighter’s regular rate of pay for scheduled work hours, the city had failed to properly calculate the firefighter’s regular rate for overtime hours worked in addition the firefighter’s regular work schedule. The city argued that the collective bargaining agreement between the city and the firefighter’s union allowed the city to exclude the wage augments from the firefighter’s regular rate for hours worked outside of the firefighter’s normal schedule. The court failed to adopt the city’s argument. Here is more from the decision:

• Because overtime hours must be paid at one and one-half times the regular rate, the Court first must determine whether firefighters were paid the “one times” the regular rate for overtime hours worked. Although 29 U.S.C. § 207(k) requires the City to pay “no[ ] less than one and one- half times the regular rate” for hours worked in excess of 212 hours during a 28-day period, the City does not pay the FLSA regular rate of pay for overtime hours worked. This is because the City does not pay wage augments for any time worked over 99 hours, including overtime hours worked, during a pay period.
• The City argues the firefighters are paid a salary, and the salary is intended to compensate the firefighters for working 49.5 hours per week. According to the City, if a firefighter “chooses to work beyond those 49.5 hours in a week,” the firefighter is paid the base hourly rate. The firefighter is not paid the wage augment because the wage augment “pay is only to be awarded in addition to the salary, not for hours worked beyond what the salary covers.” The City, however, cites no authority for this proposition. See id.
• Instead, the City directs the Court’s attention to the CBA, which indicates the wage augments are not to be regarded as “wages.” This argument is without merit and ignores the precedent this Court must follow. See Barrentine, 450 U.S. at 740 (holding “FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.”). The City’s failure to pay the regular rate (i.e., the “one…times the regular rate”) for hours worked in excess of 212 hours during a 28-day period violates the FLSA. 29 C.F.R. § 778.107 (“The general overtime pay standard in section 7(a) requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.”); 29C.F.R. § 778.108 (stating the “regular rate” includes “all remuneration for employment paid to, or on behalf of, the employee”).
• Because, at a minimum, the City failed to pay the regular rate (i.e., the “one…times the regular rate”) for hours worked in excess of 212 hours during a 28-day period, and thus, violated the FLSA, the Court DENIES the City’s motion for summary judgment on the issue of whether it violated the FLSA and GRANTS Plaintiffs’ motion for partial summary judgment.

This decision serves as a good example of how complicated properly calculating a firefighter’s regular rate can become when factoring in various wage augments. Do you have questions on how to properly calculate a firefighter’s (or other public safety professional’s) regular rate? If yes, please consider joining us for our upcoming Advanced FLSA live webinar entitled Calculating Regular Rate for Firefighters and other First Responders. In this brief (3 to 3.5 hour) live webinar we will take a deep dive into complex wage and hour issues related to properly calculating a firefighter’s regular rate of pay in the 21^st Century.

Advanced FLSA: Calculating Regular Rate for Firefighters and other First Responders – October 20, 2021 – Click here for details.

Here is a copy of the Kansas City Decision.