Los Angeles County Fire Prevails in COVID Related FLSA Lawsuit

A federal judge has dismissed a lawsuit filed by a lone Los Angeles firefighter, on behalf of himself and “other similarly situated individuals” [a.k.a. other firefighters] for unpaid overtime while attending the county’s fire academy during the COVID-19 pandemic. The lawsuit, which was initially filed in state court only to be moved to federal court in July 2021, contained allegations that both the city and the County of Los Angeles failed to pay recruit firefighters for time spent confined to a hotel during their training academy. The City of Los Angeles was eventually dropped from the lawsuit in late 2022, however the firefighter’s claims against the county remained until earlier this month.

The facts of the case center around the county’s attempt to run a fire academy during the height of the Covid-19 pandemic, quarantines, and governmental restrictions. Los Angeles County Fire planned on starting a recruit training class in late March 2020. However, due to the pandemic and a California “stay-at-home” Executive Order, the county opted to forgo the traditional 81-day training academy. The county offered recruits with prior firefighting experience an option of taking a “compressed” four-week training academy in lieu of the longer traditional academy. Firefighter Bryan Hunt, the plaintiff in the lawsuit, along with several other recruits opted to participate in the new accelerated training program.

The county contracted with a local hotel to provide rooms for the recruit firefighters and the training officers assigned to the fire academy. The firefighters were required to stay at the hotel a total of six nights per week. The firefighter’s schedule at the training academy consisted of six ten-hour days (Monday thru Saturday) followed by one day off. The firefighters were required to stay at the hotel overnights and evenings from Sunday night through Saturday afternoon. The department required the firefighters agree to the following:

• In consideration of being provided paid lodging at [the Hotel] . . . during [the Training Program] by the County of Los Angeles Fire Department (“Department”), I hereby represent, covenant and agree . . . as follows:
• I understand that as a recruit . . . even when I am not working on the training grounds and am at the Hotel, I am still representing the Department and therefore will remain physically and mentally available at all times.
• I understand that my whereabouts must be known at all times and I agree to notify my chain of command accordingly…
• I further understand that I am expected to: . . . use my time at the Hotel wisely (i.e., uniform and equipment maintenance and preparation, study time, and rest), including but not limited to: Vacate common areas by 2200 hours . . . .

The recruit firefighters were paid a total of sixty hours per week for the time spent at the training academy. Forty hours was compensated at straight time and the other twenty hours was compensated at time and one-half. The recruit firefighters were not paid for the overnight and off-duty hours spent at the hotel during the four-weeks attending the academy. About one-year after completing the training academy the lawsuit was filed.

The Honorable Percy Anderson, United States District Court Judge for Central District of California dismissed the firefighter’s lawsuit earlier this month absent a trial or further litigation. Specifically, the judge cited a Department of Labor (DOL) regulation that allows public agency employers exclude certain time spent by police officers and firefighters attending training academies from compensable work hours. This regulation can be found at 29 CFR §553.226(c) and contains the following:

(c) Police officers or employees in fire protection activities, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.

The judge found that while off-duty, although sequestered in a hotel, the firefighters were free to engage in “personal pursuits.” These pursuits included: “resting, studying, watching television, making phone or video calls, bathing, and spending time with other Trainees.” The judge also noted that the majority of off-duty time spent by the recruit firefighters in the hotel was spent sleeping. Additionally, the judge found that the restrictions placed on the firefighters during the academy were the result of the pandemic and the California governor’s “stay-at-home” order. This was a common restriction for all California residents at that time and was not unique to the firefighters in the training academy.

On a side note, past attendees of the FLSA for Fire Departments seminar or live webinar should find the above regulation somewhat familiar. We cover this regulation [and several more] in the Training Time portion of the program. This regulation provides the basis for one of six exceptions to the general rule that all work-related training is compensable.

The judge also dismissed the firefighter’s allegations that the department’s training officers “expected” the recruits to spend their time confined to the hotel studying and therefore the time should be compensable. Here is more on those claims quoting from the ruling:

• Plaintiff points to the language in the Hotel Agreement stating that he was “expected” to “use [his] time at the Hotel wisely (i.e., uniform and equipment maintenance and preparation, study time, and rest)” as evidence that he was not free to use the Hotel Time for “personal pursuits.” Plaintiff claims he was required to study, but testified that no one on the training staff at the Fire Academy instructed him that he had to study.
• The County’s Fire Department Battalion Chief declares that “Captains did not tell the recruits what they had to do once they were at the [H]otel” and “there was no requirement that they use the time in the hotel for studying.”
• Additionally, time spent studying was predominately for Plaintiff’s benefit, not the County’s, and is therefore not compensable under the FLSA. (Finding study time noncompensable where the plaintiff was free to spend time for “personal pursuits” and “chose to spend th[e] time studying”).

Here is a copy of the Judge Anderson’s order.