NC Volunteer Fire Department Faces FLSA Lawsuit from Two Former Firefighters

The Robinson Volunteer Fire and Rescue Department and its fire chief are facing an FLSA lawsuit filed by two former members. Akash Patel and Aaron Garbus filed the lawsuit in the U.S. District Court for the Western District of North Carolina on September 9, 2024. In the complaint, Patel and Garbus allege the department failed to pay overtime and improperly calculated their regular rate of pay in violation of the FLSA. Additionally, Patel claims the department retaliated against him by firing him after he complained about the department’s overtime practices.

Not all fire departments are structured the same. As a result, not all firefighters can be paid the same. According to the complaint, the Robinson Volunteer Fire and Rescue Department is a privately incorporated non-profit corporation and not a public agency. As a result of its “private” status, the department cannot avail itself to the many special provisions found in the FLSA that are only applicable to public agency employers. These special “public agency” only provisions include FLSA compensatory time, shift substitutions, special detail provisions, and most importantly the FLSA’s §207k partial overtime exemption for “employees engaged in fire protection activities.” Click here, for more information on public agency vs. private fire departments.

In addition to allegations of misclassification and unpaid overtime, the firefighters’ complaint also contains an allegation that Patel was terminated after he complained about not receiving overtime pay. The FLSA contains broad anti-retaliation provisions that prohibit any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA. Most courts have also found internal employee complaints related to unpaid or underpaid overtime [both verbal and written] also a protected activity under the FLSA’s anti-retaliation provisions.

Generally, plaintiff’s attorneys love to see evidence of retaliation either after filing a wage and hour claim or when reviewing a potential lawsuit with a client. The FLSA’s anti-retaliation provisions do not require the plaintiff (i.e. the employee) prove the underlying FLSA claim in order to prevail on a retaliation claim. For example, an employee can claim that his or her employer misclassified them as an overtime exempt employee. The employer can prove the employee was properly classified as overtime exempt, yet still be liable to the employee for damages associated with retaliation.

Additionally, most often the potential damages in FLSA litigation are limited to back wages and liquidated damages. Damages for retaliation can include pain and suffering, punitive damages, and even pain and suffering and emotional damages for the employee’s family members under certain limited circumstances. Bottom line, employers do not want to face retaliation claims in addition to wage and hour claims. Employers need to carefully weigh any action taken against any employee or group of employees that have exercised their rights under the FLSA.

Finally, the complaint also contains an exhibit that is reported by the plaintiffs to be a letter drafted by the fire department’s administration. According to the plaintiffs, the letter was provided to department personnel in an effort to explain the department’s overtime pay practices. Here is an excerpt from that latter:

• So starting with the new year, we are now going to be paying overtime, SORT OF.
• The way it is going to work, if your hours for the month are more than the average of 40 per week, then you will be at a variable rate per hour. Don’t worry, you are not losing money by being paid by a different rate. Your gross pay will be the same, but we will be “paying overtime.” And yes, other departments in the county pay at a lower initial rate to reach their higher rate when figured with overtime.
• So how this works.
• In February, OT starts after 160hrs. In a 30 day month, it starts after 171hrs; and in a 31 day month, it starts after 177hrs.
• Now the math.
• So lets use the example of 250hrs worked in April at $15 per hr.
• Under the current pay, this would give a gross pay of $3750. 250×15
• Under the new plan, OT would trigger after 171hrs. Which give 171hrs at straight pay and 79hrs of overtime pay. And with the pay rate being variable, this person would be adjusted to $12.96 per hour. And would receive a gross pay of $3751.92. That works at (250 x 12.96) + ((79 x 12.96) / 2).

As of today, there are only two named plaintiffs in the lawsuit, however that number could grow in the coming months if other department members decide to join in on the suit, or in the alternative file individual claims. A copy of the complaint is provided below.

Do you have questions about the FLSA’s §207k partial overtime exemption or how to properly calculate a firefighter’s regular rate? Please join us for the next FLSA for Fire Departments live seminar in Mesa, Arizona on October 1-3, 2024. This 24-hour three-day program covers a wide variety of FLSA topics that impact both firefighters and other civilian public safety professionals. These topics range from common overtime exemptions, comp time, compensability of travel, training, on-call time, off-the-clock work, the proper calculation of an employee’s regular rate, and of course factors to consider when determining whether a fire department is a public agency or a private entity. Click here, for a more detailed description.