Ohio Fire Lieutenant Files FLSA Lawsuit

A lieutenant from the Warren Township Fire Department, in Warren, Ohio has filed a lawsuit against his employer claiming the department’s pay practices violate several provisions of the FLSA.  Lieutenant Gregory Wrightsman filed the lawsuit on behalf of himself and other “similarly situated” individuals [i.e., other firefighters that may eventually join in on the lawsuit] in the United States District Court for the Northern District of Ohio last week.

Quoting from the complaint [edited for ease of reading]:

• Plaintiff has been employed by Defendants since approximately 2016 to the present.
• Plaintiff’s job title is Lieutenant/Firefighter/EMT.
• Defendants do not pay the Plaintiff(s) for all time worked prior to, at the beginning, during, at the end, and after their workdays.
• While Plaintiff(s) regularly worked significant amounts of time prior to, at the beginning, during, at the end, and after their workdays when they were paid on an hourly basis, they were paid based on incomplete and improper records.
• Defendants paid employees an hourly wage for some work, and based on “per call,” akin to a “piece work” method of payment, for other work.
• The Plaintiff(s) were not paid for all hours for training, time worked between “per calls,” or time worked after or before “calls.”
• As a result, Plaintiff(s) were not paid for all hours worked, including overtime hours.
• In addition, Plaintiff(s)regularly perform and attend training and orientation required by Defendants.
• However, Defendants do not pay them for all of time spent performing and attending training and orientation.
• Defendants, through their supervisors, directors, and managers, knew that Plaintiff(s) were working the additional time for which they were not paid.
• Defendants consistently, willfully, and intentionally failed to pay Plaintiff(s) for all hours, including overtime hours, worked, at the statutory overtime rate.
• Defendants’ failure to compensate Plaintiff(s) for hours worked more than forty (40) hours per week at “one and one-half times” the employees’ “regular rate[s]” of pay violates the FLSA.
• Defendant incorrectly calculated Plaintiff(s) overtime rates for hours worked in excess of forty (40) hours in a workweek. This resulted from Defendants’ failure to incorporate forms of required remuneration which Defendants paid to its workers into the regular rate when calculating overtime. This includes (but is not limited to) non-discretionary compensation for other job tasks completed.
• For example, Plaintiff(s) received compensation when they performed firefighter services, EMT services, piece work services, training, and orientation. However, Defendants did not include these forms of compensation that were paid to Plaintiff(s) in their regular rates when calculating their overtime pay even though Plaintiff and other non-exempt employees received this compensation in pay periods in which they also worked in excess of forty (40) hours per workweek.
• For example, Plaintiff performed IT services for Defendant that were paid on a “salary” basis. However, Defendants did not include this compensation in Plaintiff’s regular rate when calculating his overtime pay even though Plaintiff earned this compensation in pay periods in which he also worked in excess of forty (40) hours per workweek.

Additionally, Lieutenant Wrightsman’s attorneys are looking for the court to expand the suit into a collective action in order to allow other similarly situated firefighters to join the suit, back wages, damages, and attorneys’ fees.

The crux of Lieutenant Wrightsman’s complaint centers around unpaid and underpaid “off-the-clock” work and improper calculation of the regular rate of pay. Claims by employees for uncompensated “off-the-clock” work are on the rise. In fact, FDNY was recently ordered to pay close to $18 million in back wages and damages to thousands of EMTs and paramedics for “off-the-clock” work performed before and after scheduled work shifts. Something as simple as personnel meeting and conferring before and after scheduled work shifts to discuss the events of the previous shift, anticipated needs for the upcoming shift, documentation of narcotics and other medications, and other similar activities could be the basis for a wage and hour violation or even a lawsuit.

Similarly, it is not surprising that one of the allegations in the complaint is that the township improperly calculates their firefighters’ regular rate of pay. Proper calculation of the regular rate has been referred to as the “linchpin” of the FLSA’s overtime requirement. Allegations of regular rate violations continue to be the most likely reason a fire department could face an FLSA lawsuit today. The FLSA requires that all “remuneration” paid to an employee be included in that employee’s regular rate. This includes various wage augments or incentives that are often paid to firefighters in addition to their base hourly wages. A small calculation error can quickly evolve into a huge liability for an organization.

It is imperative that professional responsible for managing and paying firefighters and other first responders understand the FLSA’s basic requirements pertaining to hours worked and overtime.

Do you have questions about how to properly calculate a firefighter’s regular rate from a salary? What wage augments can be rightfully excluded from that regular rate? How to incorporate lump sum wage augments into the regular rate? Please join us on July 24, 2024, for the FLSA Advances Webinar Series “Calculating Regular Rate for Firefighters and other First Responders.” We will answer all of those questions and much, much more. Click here for more information.

Here is a copy of Lieutenant Wrightsman’s complaint.