A federal judge in South Carolina has dismissed an FLSA misclassification lawsuit filed by a former firefighter/medic without the need for a trail. United States District Court Judge Bruce Howe Hendricks granted Jasper County’s request to dismiss the 2021 lawsuit filed by Heather Davis, a former firefighter/medic for Jasper County’s Emergency Services Department. In the lawsuit, Davis alleged that the county improperly classified her as an employee engaged in fire protection activities [often referred to as §207k firefighters] in violation of the FLSA.
As most regular FirefighterOvertime.org readers are aware, the FLSA’s §207k partial overtime exemption allows public agency employers avoid the FLSA’s traditional requirement of overtime after working 40 hours in a seven-day workweek for employees engaged in fire protection activities. The §207k exemption “raises the average number of hours the employer can require law enforcement and fire protection personnel to work without triggering” overtime and allows “employers to adopt work periods longer than one week.” However, in order to utilize the §207k exemption, the employer must meet certain requirements. Those requirements are found in the FLSA at 29 U.S.C. §203y:
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, Davis’s chief argument as a dual role firefighter/medic was that she lacked the required responsibility to engage in fire suppression and therefore the county could not claim the §207k exemption. Here is more quoting form the judge’s ruling [citations omitted for ease of reading]:
- Under 29 U.S.C. § 203(y), the following employees are, by definition, considered to be involved “in fire protection activities” for the purpose of the Section 207(k) exemption:
- an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who . . . 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 is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
- Accordingly, to fall within the definition, an employee must: (1) be trained in fire suppression; (2) have the legal authority to engage in fire suppression; (3) have the responsibility to engage in fire suppression; (4) be employed by a fire department of a municipality, county, fire district, or state; and (5) be engaged either (i) in the prevention, control, and extinguishment of fires, or (ii) in the response to emergency situations where life, property, or the environment is at risk.
- Here, Plaintiff does not dispute that she was employed as a Firefighter/Paramedic; that she trained in fire suppression; that she had the legal authority to engage in fire suppression; and that she was employed by a fire department of a county. Thus, as to the first part of § 203(y), elements (1) through (4), the remaining issue is whether plaintiff had the responsibility to engage in fire suppression.
- Here, Plaintiff testified that while employed with the County as a Firefighter/Paramedic, she was assigned to the ambulance performing medical functions 90 percent of the time. She testified that she responded to some fire calls and was sometimes in the fire truck and has driven the firetruck in response to a fire call.
- While on the scene of a structure fire, she testified that she has filled the role of incident commander and pump operator, and she has actually gone into a structure to fight a fire. On those occasions where she responded to a fire call in an ambulance, she testified that there were times when she was asked to put on her turn out gear—which she testified she carried everywhere she went—and to assist with fighting the fire.
- As to the frequency in which that happened, Plaintiff testified that she could “probably count on two hands the time[s] that [she] actually fought fire,” but if the need arose or she was asked while she was on the scene performing medical functions, she could have, would have, and was expected to engage in fire suppression activities.
- On cross-examination, Plaintiff first testified that she did not know but then estimated that out of the 1,960 calls on average that she received during her employment with the County, 12 of them resulted in her actually performing fire suppression activities.
- Plaintiff was also clearly trained in fire suppression. To obtain and keep her job with Jasper County Fire and Rescue, she was required to hold a Firefighter Level II certification, which is necessary to fight structure fires in South Carolina.
- Her resume also reflects that she had certifications in hazardous materials operations, Marine Firefighter II, and Fire Instructor I. As a Fire Instructor I, Plaintiff was capable of training firefighters. She also held certifications that allowed her to drive a firetruck and operate the fire pump.
- The evidence before this Court reveals that Plaintiff had sufficient fire suppression responsibility under section 203(y):
- (1) she always had her turn out gear on the ambulance; (2) there were times in which she was asked to put her gear on and assist with fighting a fire; (3) she had performed the role of incident commander and pump operator in response to a fire call; (4) she could and did drive a firetruck in response to a fire call; (5) she responded to both medical and fire calls; and (6) while the majority of her time was spent responding to medical calls and performing medical services, if assigned to or called upon to perform fire suppression while on the scene of a fire, she engaged in fire suppression activities.
- In sum, the Court finds in favor of the County on this issue and holds that Plaintiff was “responsible” for fire suppression under § 203(y) during her employment with the County.
Here are copies of the initial complaint from December 2021 and the Judge Hendricks’ July 30, 2024 ruling.