Ninth Circuit Upholds Lower Court and Rejects a Firefighter’s COVID Related FLSA Lawsuit

The United States Court of Appeals for the Ninth Circuit has upheld a lower court’s dismissal of an FLSA lawsuit filed by a Los Angeles firefighter seeking compensation for time spent sequestered at a hotel at the height of the COVID-19 pandemic. Los Angeles Firefighter Bryan Hunt filed this lawsuit, on behalf of himself and other similarly situated individuals, after he and numerous other firefighters completed a “condensed” training academy offered by Los Angeles County’s Firefighting Training Academy.

Due to the COVID-19 pandemic and the State of California’s stay-at-home order, the county offered new firefighters with previous firefighting experience an opportunity to receive their training in a modified “condensed” academy. The modified academy required the recruits to attend the fire academy six days per week and remain sequestered at an area hotel for six nights per week. The recruits were free to travel home after training ended on Saturday afternoon, however they were required to return to the hotel on Sunday evening.

The recruits were paid for all of the time spent training; however, they were not paid for the time spent sequestered at the hotel. Hunt sought payment for the hours that he and other recruits were required to remain at the hotel. The lower court dismissed Hunt’s lawsuit without the need for a trial and Hunt appealed.

Quoting from the ninth circuit’s decision:

• Hunt’s claim fails under 29 C.F.R. § 553.226(c). That regulation provides that “employees in fire protection activities, who [attend] a . . . fire academy . . . are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.”
• The regulation’s plain text resolves this case. Hunt, an employee attending a fire academy, was “not in class or at a training session” during his hotel time. All such classes and training took place at the Academy itself.
• We are not persuaded by Hunt’s argument to the contrary. Hunt argues that the regulation does not apply because he was “always on call and tethered to the hotel,” and thus was not “free to use such time for personal pursuits.” But the undisputed facts show that Hunt was not expected to do anything work-related during his time at the hotel and that he did, in fact, use the time for “personal pursuits” such as showering, laundry, and video chatting with friends and family.
• Hunt’s hotel time is not compensable just because the County, in its efforts to comply with California’s stay-at-home order, required him to remain at the hotel. We already rejected analogous claims applying a different regulation, 29 C.F.R. § 785.23. In Brigham v. Eugene Water & Electric Board, we held that an employee required to remain on premises need not have “substantially the same flexibility or freedom as he would if not on call.”
• A contrary conclusion, we explained, would turn “all or almost all on-call time” into “working time, a proposition that settled case law and the administrative guidelines clearly reject.” Id. (citation omitted). As such, Hunt’s free time at the hotel was not compensable.

The Ninth Circuit’s decision likely ends litigation for this particular instance. For the folks attending our FLSA for Fire Departments webinar this week in sunny Mesa, Arizona you will be hearing more about this decision and another pending lawsuit that also arose out of a COVID modified fire academy. For anybody that is close enough to Mesa, there are still seats available. Click here for more information.

Here is a copy of the Ninth Circuit’s decision. 

Here is more on lower court’s decision from FirefighterOvertime.org.

Los Angeles County Fire Prevails in COVID Related FLSA Lawsuit