Firefighter Overtime Discussing Fair Labor Standards Act (FLSA) for Firefighters, First Responders as well as Human Resource & Finance Professional
A large group of FDNY emergency medical technicians and paramedics filed a federal lawsuit late last week alleging that the City of New York’s pay practices violate the Fair Labor Standards Act (FLSA). The lawsuit, which contains several claims including uncompensated off-the clock work, regular rate violations, and failure to timely pay overtime compensation was filed in the U.S. District Court for the Southern District of New York on December 15, 2023. This latest lawsuit comes closely on the heels of a similar lawsuit filed several years back by more than 2,500 FDNY medics and EMTs. That lawsuit resulted in a $17.78 million dollar verdict after a jury found the city willfully violated the FLSA.
Quoting from the complaint:
- While working as EMTs and/or Paramedics, Plaintiffs and all others similarly situated regularly work over 40 hours a week. As set forth above, at least every other workweek field EMTs and Paramedics are scheduled for four shifts of 12 hours each (totaling 48 hours). EMTs and Paramedics assigned to eight hours shifts are scheduled for five shifts per week (totaling 40 hours) for most of their work weeks. Similarly, non-field EMTs and Paramedics are scheduled for five shifts of eight and one-half hours each, including an unpaid 30-minute meal period, each week (totaling 40 hours). Defendants have nevertheless suffered or permitted Plaintiffs to perform additional work, as described below, in excess of their scheduled shift hours on a daily basis, all of which is considered overtime work under the FLSA; however, the Plaintiffs are not paid for this work.
- Field EMTs and Paramedics perform a minimum of 20-30 minutes of pre-shift and post-shift work daily without compensation. For example, prior to their scheduled shifts, field EMTs and Paramedics engage in 15-20 minutes of necessary, integral, and indispensable work tasks, including: checking in with their supervisors and discussing with them any information pertinent to their daily assignments; gathering, inspecting and organizing the personally-issued medical equipment they are required to carry to each assignment, including their technician’s bags (for EMTs); stocking technician bags in accordance with FDNY policies, gathering and inspecting their personal protective equipment (PPE) that they are required to have with them at all times while on duty; beginning the Part 800 check of their assigned ambulance, required by the State of New York; restocking the ambulance or other vehicle; and sanitizing the ambulance or other vehicle. Post-shift, field EMTs and Paramedics exchange information and equipment with the oncoming shift, including radiation detection meters, radios and tablets used to record patient data, and Paramedics exchange and log controlled substances with the oncoming shift in the presence of a Lieutenant. EMTs and Paramedics also stow their PPE and other equipment and restock the ambulance as necessary after their scheduled shift.
- Non-field EMTs and Paramedics engage in necessary, integral, and indispensable tasks prior to and after their scheduled shifts and during their unpaid meal periods including: preparing lecture materials, sign-in sheets, hand-outs and equipment for training classes; obtaining equipment from their lockers; conducting information briefings with an outgoing employee in order to obtain necessary information concerning events that are currently taking place, such as stabbings, shootings, or major traumas; and exchanging information about the units that are currently dispatched to a call such that it would affect the distribution of ambulances across the City.
- Field EMTs and Paramedics are expected to log on as available to take an emergency call and to leave their station to head to their assigned Cross Street Location from which they will respond to emergency calls within minutes of the beginning of their scheduled shift. Plaintiffs can be disciplined or reprimanded if they are not quickly able to log on as available; indeed, the City tracks the log on times of each EMT and Paramedic. The only way Plaintiffs can meet the City’s expectations with respect to going available as soon as possible after their scheduled shift start time is if they arrive to work at least 15 minutes early and begin performing their job duties.
- Field EMT and Paramedic Plaintiffs also perform between 10-15 minutes of work after the end of their scheduled shifts, often without compensation, because they must keep their medical equipment, controlled substances, and gear through the last minute of their scheduled shift in case they receive an emergency call. As such, on days where the ambulance or vehicle remains in service until the end of the shift, any hand-to-hand exchange of equipment and/or controlled substances with the oncoming tour must necessarily happen after the end of Plaintiffs’ scheduled shift. The City has provided an overtime code for Paramedics to use for narcotics’ securement, which is when there is no oncoming shift to provide the controlled substances to, and instead those controlled substances are secured in a locker. The overtime code does not apply to the transfer that occurs when one shift transfers narcotics and other equipment toanother shift.
- In addition to their 40 hours of weekly paid work, each shift non-field EMTs and Paramedics also perform a minimum of 10-30 minutes of unpaid pre-shift and/or post-shift work and regularly work during unpaid meal periods.
- The amount of uncompensated work hours for which Plaintiffs and those similarly situated have not been paid can be identified through the Defendant’s timekeeping system, CityTime, and through other work and pay records.
- In addition to the unpaid work described above, EMTs and Paramedics routinely work additional shifts and other approved overtime for which they are paid.
- While working as EMTs and Paramedics during the last three years, Plaintiffs and all others similarly situated have received certain payments in addition to their basic pay. These payments include, but are not limited to, specialty differential pay such as HazTac pay, Rescue Medic pay, longevity pay,” “meal money,” and differential payments related to night work. These payments are made pursuant to Agency-wide policy and/or collective bargaining agreements, and thus they are paid to Plaintiffs and all others similarly situated. However, on occasions when Plaintiffs and those similarly situated are paid overtime compensation, Defendants fail to include these additional payments in the regular rate of pay used to calculate the overtime rate payable to Plaintiffs and those similarly situated.
- The failure to include these differential payments in Plaintiffs’ regular rates of pay means that when Plaintiffs receive paid overtime for working in excess of 40 hours in a week, they are paid at a rate for those overtime hours that is below the rate mandated by the FLSA.
- EMTs and Paramedics employed by Defendants who receive premium payments pursuant to Agency-wide policy and/or collective bargaining agreements, including Plaintiffs, are similarly situated and routinely work more than 40 hours in a workweek but are denied proper compensation for hours worked in excess of 40 hours because Defendants continue to fail to include these payments in the regular rate of pay upon which the Plaintiffs’ overtime rate is based. The precise amount of improperly paid overtime received by each EMT and Paramedic can be identified through the Defendants’ timekeeping system and payroll records, which are in Defendants’ exclusive possession and control.
- The FLSA mandates that overtime compensation be paid for overtime work on the regular payday for the period in which such workweek ends. However, when the City does compensate Plaintiffs for hours worked over 40 in a workweek, the City regularly delays the payment of overtime more than two pay periods (i.e., more than 35 days) after the overtime was worked.
- Plaintiffs have been paid for approved overtime more than 35 days after the overtime was worked on multiple occasions during the last three years, despite Plaintiffs’ complaints to the Defendant. The delay in payment is because of managerial delays in acquiring the required approvals to pay Plaintiffs for their overtime or for other reasons that are unrelated to the City’s ability to determine the amount of overtime compensation that is owed to the Plaintiffs, for example the Defendants’ failure to automatically “turn on” premium payments after an employee returns to work from long term leave. Thus, Defendants have violated the basic principles of the FLSA by delaying Plaintiffs’ overtime payments for working in excess of 40 hours a workweek, with such delay not being reasonably necessary to compute Plaintiffs’ overtime pay.
- The precise amount of unlawfully delayed overtime compensation received by each EMT and Paramedic can be identified through the Defendants’ timekeeping system and payroll records, which are in Defendants’ exclusive possession and control.
The named medics and EMTs in this latest lawsuit are asking the court to expand this lawsuit into a class action of likely thousands of more similarly situated FDNY medics and EMTs. Additionally, the medics are seeking back wages for the previous three years, liquidated damages, and attorneys’ fees. Here is a copy of the complaint.
Here is more on the previous FDNY lawsuit referenced above:
Coincidently, FDNY is also facing an FLSA lawsuit filed earlier this month by a group of Fire Inspectors. Here is more on that from Curt Varone’s FireLaw Blog:
