FDNY Battalion Chiefs File FLSA Lawsuit

A group of seven current and former FDNY Battalion Chiefs have filed a federal lawsuit alleging the City of New York improperly classified them as overtime exempt executive employees in violation of the FLSA.  The seven battalion chiefs filed the lawsuit on behalf of themselves and other “similarly situated individuals” in the United States District Court for the Southern District of New York earlier this month.

According to the complaint, the chiefs receive something referred to as “comp time OT” when they work additional shifts. However, the department “prevents” the chiefs’ from utilizing their accrued time off earned from “comp time OT.” As a result, the chiefs allege many of the plaintiffs have banked thousands of hours of unused comp time.

The chiefs’ complaint lays out a “laundry list” of essential job functions that support their misclassification claims. Quoting from the complaint:

• During the Collective Action Period, the primary job duty for Plaintiffs and the other members of the FDNY Collective was to prepare for and engage in fire protection activities and emergency response activities to protect and serve the New York City community.
• As FDNY Battalion Chiefs, Plaintiffs and other members of the FDNY Collective are required to respond to nearly all emergency calls. When these calls come in, they take precedent over all other duties or obligations an FDNY Battalion Chief may have at the time. FDNY Battalion Chiefs cannot make themselves unavailable for dispatch. If a call comes in, an FDNY Battalion Chief must respond.
• When an FDNY Battalion Chief arrives on the scene of an emergency or fire call, they engage in fire protection activities and emergency response activities which are not exempt from the overtime provisions of the FLSA.
• There are other requirements for the Battalion Chief position which reflects their non-exempt status, which includes but is not limited to:
• FDNY Battalion Chiefs wear the same gear and carry the same equipment as other frontline fire fighters when responding to an emergency call;
• FDNY Battalion Chiefs work alongside frontline fire fighters to engage in the control, suppression, and extinguishment of fires;
• FDNY Battalion Chiefs are required to participate in and complete all training and physical fitness programs as frontline firefighters; and
• FDNY Battalion Chiefs are required to rescue and provide aid to any victims when responding to an emergency call.

The chiefs’ complaint also lays out other factors that they believe will undermine the city’s ability to claim any of the “white-collar” overtime exemptions for its battalion chiefs. Quoting from the complaint:

• Defendants have misclassified FDNY Battalion Chiefs as exempt from the overtime provisions of the FLSA by claiming their primary job duty is management. Defendants’ misclassification of FDNY Battalion Chiefs as exempt managerial employees, however, conflicts with Defendants’ designation of FDNY Battalion Chiefs as non-managerial employees under New York’s Public Employees’ Fair Employment Act and the Administrative Code of the City of New York.
• FDNY Battalion Chiefs have little to no independent authority within the FDNY to make managerial decisions which would exempt them from the overtime provisions of the FLSA. For instance, during the Collective Action Period, FDNY Battalion Chiefs
• have never been involved in interviewing candidates for the FDNY;
• have never had the authority to hire a new FDNY employee;
• have never controlled the type of training FDNY employees receive;
• have never determined the rates of pay for any FDNY employees;
• have never dictated the working hours of FDNY employees;
• have never had the authority to promote an FDNY employee;
• have never had the authority to formally discipline an FDNY employee;
• have never had the authority to fire an FDNY employee;
• have never had the authority to plan or control the budget; and
• have never had the authority to determine how the FDNY would comply with federal, state, and local laws.
• As a result of Defendants’ misclassification of FDNY Battalion Chiefs, Defendants have failed to pay Plaintiffs and the other members of the FDNY Collective for all hours worked in excess of the maximum hours provided in 29 U.S.C. § 207.
• Typically, the only overtime-related compensation Plaintiffs and the other members of the FDNY Collective have received is compensatory time off for working Comp Time OT shifts. However, Defendants have routinely prevented Plaintiffs and the other members of the FDNY Collective from using their Comp Time OT shift compensation. As a result, Defendants have effectively provided no compensation to Plaintiffs and the other members of the FDNY Collective for working Comp Time OT shifts.

Here is a copy of the complaint: