Over 400 current and former Los Angeles City Fire Department firefighter/medics have filed a federal lawsuit against the city alleging violations of the Fair Labor Standards Act (FLSA). The lawsuit, which was filed in the United States District Court for the Central District of California earlier this summer contains allegations that the city misclassified hundreds of firefighter/medics as employees engaged in fire protection activities [also known as §207k firefighters] in violation of the FLSA.
According to the complaint, the plaintiffs are or were “dual trained” firefighter/paramedics and firefighter/EMTs assigned to both fire engines or ambulances on a “shift-by-shift” basis. The crux the firefighter/medics allegations is the frequency, or more precisely the infrequency in which they were assigned to fire engines as compared to ambulances. Quoting from the complaint:
- Each Plaintiff is or was employed by the Defendant at the Los Angeles Fire Department (“LAFD”) as a rotational dual trained fire fighter/paramedic or dual trained fire fighter/Emergency Medical Technician (“EMT”).
- As rotational fire fighters, Plaintiffs are assigned on a shift-by-shift basis to either a fire engine or ambulance.
- At all times material to this action, each Plaintiff is or was assigned to work shifts on an ambulance.
- At all times material to this action, the majority of Plaintiffs primarily worked on an ambulance and are or were infrequently assigned to work on a fire engine.
- Upon information and belief, at all times material to this action each Plaintiff is or was assigned to platoon duty when assigned to work on an ambulance, whereby he or she is assigned to one of three shifts: A, B, or C. During the course of a nine (9) day period, Plaintiffs are assigned a day on, followed by a day off, followed by a day on, followed by a day off, followed by a day on, followed by four days off. The schedule is repeated every nine (9) days and routinely causes Plaintiffs to work over 40 hours in a workweek.
- At all times material to this action, when assigned to work on an ambulance Plaintiffs do not engage in fire suppression or other fire protection activities as defined by Section 203(y) of the FLSA and 29 C.F.R. § 553.210.
- Defendant applies a 27-day work period under section 207(k) of the FLSA to Plaintiffs when calculating their FLSA overtime pay. 29 U.S.C. § 207(k).
- At all times material to this action, Defendant has failed and refused to provide Plaintiffs with overtime compensation for time worked above 40 hours in a workweek, thereby violating 29 U.S.C. §207(a) of the FLSA.
- Upon information and belief, Defendant and its agents are aware of the requirements of the FLSA and are further aware that the 207(k) exemption does not apply to exempt hours an employee works on an ambulance, during which time the employee has no responsibility to engage in fire suppression.
The stakes here are enormous. A properly classified dual-trained firefighter/medic/EMT is eligible for FLSA overtime after working 204 hours in a 27-day work period. This is a far cry from a non-firefighter medic that must receive overtime for all hours worked over 40 every 7-day workweek. Whether a dual-trained firefighter/medic can be classified as a §207k firefighter depends on whether they meet the definition of an employee engaged in fire protection activities. That definition can be found in section 203(y) of the FLSA:
29 USC §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 LA City firefighter/medics are alleging that when assigned to an ambulance there is no “responsibility to engage in fire suppression” as required by the above definition. There is no bright-line rule on how many hours a dual-trained firefighter/medic must spend on a fire engine or ladder truck of heavy rescue in order to be classified as a §207k firefighter for the work period. In fact, as a general rule, a dual-trained firefighter/medic can be assigned to transport ambulance and still meet the definition of a §207k firefighter. It all depends on the facts involved.
The “responsibility to engage in fire suppression” requirement for firefighter/medics assigned to EMS units has become increasingly difficult for fire departments to manage in recent years. An explosive increase in demand for emergency medical services in conjunction with excessive overtime, employee fatigue, and high levels of turn-over all play a part in this challenge. It is imperative that public agency employers responsible for paying dual-trained firefighter/medics have a solid understanding of the basic overtime requirements of the FLSA.
Do you have questions about firefighter/medics and the §207k partial overtime exemption? Please join us at our upcoming FLSA for Fire Departments Live Webinar being held on September 5, 7, 12, and 14, 2023. Tired of webinars? Please join us in Georgetown, Texas on February 7-9, 2024, for the return of the FLSA for Fire Departments Live and In-Person seminar.
Here is a copy of the LA City Firefighter/medics complaint.