Second FLSA Lawsuit in a Week for West Virginia Firefighters

Two similar FLSA lawsuits have been filed by firefighters from two different West Virginia cities in the past week. The first, which my friend and colleague Curt Varone covered on his Fire Law Blog last Wednesday, contained allegations that the City of Clarksburg was improperly calculating its firefighter’s regular rate of pay in violation of the FLSA. [You can find Curt’s coverage of the first lawsuit below.] The second lawsuit was filed by a group of fifty-five current and former Morgantown firefighters. Their lawsuit was filed in the U.S. District Court for the Northern District of West Virginia on June 28, only three days after the first lawsuit.

The firefighter’s claims in the second lawsuit mirror the allegations found in the first. Chief among these claims is that the City of Morgantown artificially lowers its firefighter’s regular rate of pay in violation of the FLSA. Proper calculation of any employee’s regular rate is critically important since all FLSA overtime must be paid at a rate of at least time and one-half of the employee’s regular rate of pay and all FLSA compensatory time must be paid out at the employee’s regular rate of pay. The U.S. Supreme Court has written that the proper calculation of the regular rate is the “linchpin” of the FLSA’s overtime requirement.

Here, Morgantown’s firefighters allege that the city utilizes an improper divisor when calculating its firefighters’ regular rate or pay from their annual salary. Department of Labor (DOL) regulations mandate that a salaried employee’s regular rate is determined by “dividing the salary by the number of hours which the salary is intended to compensate.” As a general rule, the number of hours a firefighter’s salary is intended to compensate varies based upon their work schedule.

Here are two easy examples to help clarify:

Example 1

• Firefighter A is paid a weekly salary of $1,000.
• Firefighter A’s weekly salary is intended to compensate him or her for 56 hours of work per week.
• Firefighter A’s regular rate is $17.86 per hour.$1,000 (salary) divided by 56 hours (number of hours salary intended to compensate) = regular rate

Example 2

• Firefighter B is paid a weekly salary of $1,000.
• Firefighter B’s weekly salary is intended to compensate him or her for 40 hours of work per week.
• Firefighter B’s regular rate is $23.81 per hour. $1,000 (salary) divided by 42 hours (number of hours salary intended to compensate) = regular rate

• Note: These are very simple examples and do not include any additional wage augments that most firefighters receive in addition to their weekly salary. In reality, the impact of longevity pay, medic pay, educational incentives, and even health care buy-back incentives would also need to be included in the firefighter’s regular rate calculation.
• Also, note the relationship between the number of hours a salary is intended to compensate and the resultant regular rate. As the number of hours that the salary is intended to compensate increases, the firefighter’s regular rate decreases.

According to the complaint, Morgantown firefighters work an average of 56 hours per week. Generally, this will result in a firefighter being scheduled to work around 2,912 hours per year. However, instead of utilizing 2,912 as the divisor to determine the firefighters’ regular rate, the city utilizes 3,208 hours. Here is more from the complaint:

• The City utilizes written policies for, among other things, fire fighter pay and benefits.
• Based on information and belief, the City’s most recent Personnel & Administrative Policies & Procedures Manual became effective on July 1, 2022 (hereinafter referred to as the “City’s Handbook”).
• According to the City’s Handbook, the City has established a work period that begins on Saturday morning at 12:00 a.m. and ends at 11:59 p.m. on Friday. (City’s Handbook, Sec. 6.3).
• The City’s policy on paying overtime compensation is as follows:
• Nonexempt employees will be paid overtime compensation in accordance with federal and applicable state law at a rate of 1.5 times their regular rate of pay for all hours actually worked over the threshold established for a standard pay period, usually 40 hours in any workweek. Thresholds for overtime other than 40 hours in a workweek, if any, will be provided in the Pay Plan or by a policy or policies adopted by the City Manager. Overtime pay is based on hours actually worked. For example, hours attributable to paid or unpaid leave are not included in calculating hours of overtime. City’s Handbook Sec. 6.11.2.
• The City pays its fire fighters overtime compensation for hours worked in excess of forty (40) hours in a work period.
• There is no stated policy or mathematical calculation for how the City calculates a fire fighter’s regular rate of hourly pay from the stated annual salary.
• The City’s Handbook contains no such policy or mathematical calculation.
• Based on information and belief, the City currently calculates a fire fighter’s base rate of pay from a stated annual salary as follows:
• A fire fighter works on average, fifty-six (56) hours per week, or 2912 hours per year.
• From that the City deducts forty (40) straight -time hours for each week of the year, or 2,080 hours per year, leaving 832 hours. 832 represents the scheduled overtime hours.
• With that remainder number of hours, 832 hours, the City then reduces 240 hours of PTO from that amount, equaling 592 hours.
• The City then multiples the 592 hours, hours it believes a fire fighter will work in an overtime condition, by 1.5, equaling 888.
• The City then adds 2,080, 240, and 888 together to equal 3,208 hours.
• Finally, the City divides a fire fighter’s stated annual salary by 3,208 hours to arrive at the fire fighter’s regular rate of pay.
• Furthermore, the Plaintiff have not and do not agree to the City’s calculation of the Plaintiffs’ regular rate of pay.
• The City’s miscalculation of a fire fighter’s regular rate of pay has resulted in the Plaintiffs being underpaid.
• The City’s miscalculation of a fire fighter’s regular rate of pay has resulted in the Plaintiffs not being paid overtime compensation correctly.
• The City’s calculation of a fire fighter’s regular rate of hourly pay, when derived from a stated annual salary, is inconsistent with West Virginia law and Federal law.

The firefighter’s are seeking back wages, liquidated damages, attorneys fees, costs, and “any other relief this Court deems just and proper.” The firefighter’s complaint is attached below.

Do you have questions about how to properly calculate a firefighter’s regular rate from a salary? What is the proper divisor to use? What are industry best practices related to the proper calculation of a firefighter’s 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.

Entire West Virginia Fire Department Sues City For FLSA Violations