Colorado City Facing FLSA Lawsuit from Fire Department EMTs

The City of Grand Junction, Colorado is facing an FLSA lawsuit from three fire department EMTs. The lawsuit, which was filed late last month in the United States District Court for the District of Colorado contains allegations that the city failed to pay the EMTs overtime after working 40 hours every 7-day workweek. The EMTs allege the city misclassified them as “employees [engaged] in fire protection activities” [also known as §207k firefighters] in violation of the FLSA. Also, according to the EMTs’ complaint, the city reclassified them as non-exempt [non-§207k firefighters] in February 2023. From February 2023 until present, the EMTs claim the city has paid overtime for hours worked in excess of 40 in a 7-day workweek.

The FLSA’s §207k exemption allows public agency fire departments avoid the traditional FLSA overtime requirement (i.e., overtime after working 40 hours in a 7-day workweek) for “employees engaged in fire protection activities.” Generally speaking, cross-trained firefighter/EMTs can be paid under the §207k exemption provided that they meet the requirements established by the FLSA and Department of Labor (DOL) regulations. These requirements can be found in Section 203(y) of the FLSA:

Section 203(y): “Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Here, the three EMTs claim that they do not satisfy many of the criteria necessary to be classified as a §207k firefighter. Here are the EMTs’ allegations from the complaint (emphasis added):

• The Plaintiffs are employed by the City of Grand Junction, Colorado.
• Throughout the time period between June 21, 2020 and February 5, 2023 the City employed the Plaintiffs as Emergency Medical Technicians (“EMT’s”).
• Throughout the relevant time period, the City misclassified the Plaintiffs and other EMT’s as “employee[s] in fire protection activities” eligible for a partial exemption from the overtime requirements of the Fair Labor Standards Act. 29 U.S.C. § 207(k).
• Defendant employed the Plaintiffs as EMTs throughout the time period from June 21, 2020 through February 5, 2023.
• Defendant scheduled, directed and controlled the Plaintiffs’ work.
• Plaintiffs’ primary job duty was to provide emergency medical services.
• Defendant did not require the Plaintiffs to maintain fire certifications.
• Defendant prohibited the Plaintiffs from engaging in fire suppression activity.
• The Plaintiffs never engaged in fire suppression activities.
• Fire suppression was not within the Plaintiffs’ job duties.
• The Plaintiffs did not have a responsibility to engage in fire suppression.
• Though Plaintiffs regularly worked more than 40 hours each workweek, Defendant failed to pay them overtime premiums for all overtime hours worked.
• The Plaintiffs were not in fact employed in “fire protection activities” and were therefore entitled to the overtime protections of the Fair Labor Standards Act.
• Beginning on February 5, 2023, the Defendant City recognized the Plaintiffs as non-exempt employees entitled to overtime premiums for hours worked in excess of 40 in a given workweek and began to pay them accordingly.
• There was no material change in the substance of the Plaintiffs’ work attendant their February 2023 reclassification. Their work duties remained as they had been throughout the June 21, 2020 through February 5, 2023 time period at issue in this case.

The three EMTs are seeking unpaid overtime wages and liquidated damages from June 21, 2020 through February 5, 2023 in addition to their attorney fees. Here is a copy of the complaint.