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Overtime, Straight Time, or No Time

Today’s burning question: My fire department works a three shift schedule on a 12 day pay cycle. We work four complete 24 hour tours during this time for a total of 96 hours. We get paid overtime for anything over 91 hours per FLSA. This means there is a built in 5 hours of overtime each pay cycle.

The problem is if we use a vacation or sick day during a given cycle, we get charged for 24 hours of sick or vacation time, but only get paid the 91 hour salary. In other words, we lose the 5 hours of overtime we otherwise would have received.

Our contract acknowledges that we lose our built in OT upon using any sick or vacation time, but I don’t think we should get charged the full 24 hours of sick or vacation time and only paid for 91 hours. Is this legal for them to do this?

Answer: This is a complicated one.

Let’s start with the basics: Before a firefighter is entitled to overtime under the FLSA, he/she must work 53 hours per week, or 212 hours in a 28 day period. The department must designate a pay period that is between 7 and 28 days, so your department can lawfully select a 12 day cycle. The correct maximum hour figure for a 12 day cycle is 91 hours.

The bad news: The FLSA does not require an employer to give you sick or vacation time. If your employer chooses to give you such time… well… I suppose the FLSA considers it a bonus.

Under the FLSA an employer only has to include the hours you actually work when determining if you are entitled to overtime. Sick leave or vacation time do not count toward hours worked. As such if you do not actually work the maximum hours  required (91 minimum to be eligible for overtime) – they do not have to pay you overtime for any combined work-sick-vacation hours that exceed 91 UNLESS your hours actually worked exceed 91.

Now – that is the law under the FLSA – but it is only part of the equation.

If your CBA were to authorize 5 hours of overtime per 12 day period whether you worked 96 hours or not, then contractually you would be entitled to the OT even though the FLSA would not require it… However, as you indicated your CBA seems to acknowledge the practice. But just what does the CBA acknowledge? Is it simply that you will not receive OT? What about the 5 hours?

That is the bigger question. Are you (a) getting shorted on your pay in that you should get 96 hours of straight time when you use a sick or vacation day OR (b) should you only be charged 19 hours of sick/vacation time for the first sick or vacation day used each week?

Without seeing the actual CBA language and researching past case law interpreting similar provisions – it is hard to draw a firm conclusion.  What is clear is that the issue is not an FLSA question, but rather is contractual in nature. As such it will likely require a grievance to resolve. The department may argue the existence of a past practice of only paying  91 hours – even though your hours worked plus sick leave used equals 96 hours – but it would appear that you have a good faith argument that you are being shorted one way or the other.

IMHO they should either be paying you 96 hours of straight time when you use a sick or vacation day OR they should only charge you 19 hours for sick or vacation time.

Certainly if any of the other Legal Eagles out there care to weigh in – I’d appreciate it. Am I missing something?

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Posted in Burning Question, FLSA, Wage and Hour

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No comments Posted by on March 27, 2013

Pittsburgh Settles FLSA Overtime Suit By Officers

The city of Pittsburgh has settled a class action lawsuit filed in federal court by fire officers claiming they were wrongfully denied overtime compensation.

The suit was originally brought last August by Deputy Chief Harry Scherer, Battalion Chief Robert Cox and Captain Edmund J. Farley under the Fair Labor Standards Act (FLSA). The officers claim they were wrongfully denied overtime for hours worked in excess of 212 in a 28 day period (or an average of 53 hours per week).

The city’s position was the officers were exempt supervisory employees ineligible for overtime. However, under revisions to the FLSA in 2004, virtually all line firefighting positions must be treated as hourly positions.

Over fifty other fire fighters subsequently joined the suit. The case was recently assigned for mediation prior to the settlement being announced. The exact terms of the settlement have not been released, nor do they appear in any court documents.

The suit sought back pay going back three years, the maximum FLSA allows recovery for. The city had settled a similar lawsuit in 2011 filed by police officers,  paying more than $900,000 in penalties and attorneys’ fees.

Here is a copy of the original complaint. Pittsburgh

The department has been in the news lately as local officials struggle to cope with overspending on overtime. Given that the department is 140 firefighters short, the overtime problem should come as no surprise. Of course that does not stop some politicians from placing the blame on the firefighters…


 

 

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Posted in Civil Suit, FLSA, Municipal Liability, Politics, Wage and Hour

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2 comments Posted by on March 5, 2013

Compensation for On Call Time

Today’s Burning Question: I work for a combination department. We have paid staff from 0700 to midnight, supplemented by volunteers. Our chief assigns the paid staff to be on call three times a month from midnight to 0700 time period. We are paid only if there is a call. Would this violate the FLSA since we are not free do what we want during those hours?

Answer:  The FLSA, or Fair Labor Standards Act, requires that paid employees (full-time or part-time) be compensated for all hours worked. On-call time is generally not considered to be hours worked unless the restrictions placed upon the employee are so restrictive that the employee cannot engage is his/her our pursuits.

Both Fire Officer’s Legal Handbook and Legal Considerations for Fire and Emergency Services  address this topic – and provide a much more detailed discussion of this issue, but the bottom line is: if a fire department imposes so many restrictions on an employee’s “on-call” time that the time ceases to be their own, then the employee must be compensated as if they were working. Some of the factors to be considered are:

  • Do the on-call restrictions require an employee to be immediately available (eg. respond to the scene within 10-15 minutes), or merely available within 1-2 hours;
  • Is the consequence of not responding merely a missed overtime opportunity or can the employee be disciplined;
  • Do the on-call situations occur so frequently that the employee cannot plan to engage in his/her own pursuits (ie. do call outs occur with such frequency that it is impossible to plan personal activities, or do they occur less frequently);
  • When an on-call situation occurs, how burdensome is it? (Note: Firefighters who have to respond to an emergency would be on the more burdensome end of the scale compared with, say, an IT person who may merely have to return a phone call, and then can return to his/her normal activities.)

Minor inconveniences (eg. no drinking while on-call) would generally not cause an on-call situation to become so burdensome as to require compensation.  The focus is on whether the employee can generally utilize those on-call hours for his/her own benefit.  If so, then the employee does not have to be paid for them. If not, the on-call hours are considered to be hours worked and are compensable.

Like many things in the law, at each extreme the outcome is usually clear…. but in between there is an enormous gray area.

PS – in followup to yesterday’s post… I looked through the 2012 cases again at length today and could not find another precedent setting case worth discussing… most disappointing.

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Posted in Burning Question, FLSA, Wage and Hour

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No comments Posted by on December 28, 2012

North Kingstown Ruling a Victory for Firefighters

North Kingstown Firefighters, IAFF Local 1651 have won another round in their protracted battle with the town.

Earlier this year the town unilaterally changed the shifts and the hours of the firefighters from a four shift, 42 hour a week schedule to a three shift 56 hour a week schedule. The result was a 33% increase in hours and a 25% decrease in hourly pay.

In May, that decision was declared illegal under Rhode Island’s Firefighters’ Arbitration Act, yet the town persisted in the new schedule offering an array of excuses and legal theories to support the new schedule.

Last week, Judge Brian P. Stern issued another ruling effectively overruling all of the town’s arguments. For the labor law aficionados, the decision is an interesting read with numerous important legal and philosophical issues being discussed.

For those concerned only with the bottom line, Judge Stern’s decision can best be summarized by the following quotes:

The actions of the Town in this case may seem extreme to some, as it is now effectively saying “I’ve had all I can stands, I can’t stands no more.” [with a footnote to the cartoon character Popeye].

The Town may not agree with the State that, from a public policy point of view, the prohibition of firefighter strikes is worth delegating—to unelected arbitrators—the Town’s authority to enter into an agreement with its firefighters.

The only relief for the Town, other than challenging the constitutionality of the [Firefighters’ Arbitration Act] or changing the state statute is for the Town to look to the Judicial branch of state government. 

[The Town's position is:] “Judge, if you agree with our interpretation of the FFAA, we can disregard it and do whatever we believe is necessary.” The problem is that the interpretation the Town asks the Court to give to the FFAA is inconsistent with the clear precedent relating to the rules of statutory construction.

It is not the role of the Judicial branch to issue an interpretation because the Judge may agree or disagree with the public policy implications of a statute duly passed by our State’s elected representatives.

The Town’s actions in implementing unilateral changes to the wages, hours, and terms and conditions of employment, were unlawful…

The Town … unilaterally implemented sweeping changes to the employer/employee relationship. These changes included increasing the length of firefighters’ shifts from [ten and fourteen hours] to twenty-four (24) hours, increasing the number of hours each firefighter works per week, and decreasing the firefighters’ hourly pay. 

The Town now will be required to “unring the bell” and—as to wages, hours, and other terms and conditions of employment—go back to the state that existed pre-unilateral implementation. This Court recognizes that this process will be a large and costly undertaking. Furthermore, the Town may also be required to compensate the firefighters for the period since those unilateral changes were made.

Given the financial implications of the ruling, the judge granted the town a stay of 30 days to decide upon an appeal or reach agreement with the firefighters.

Here is a copy of the decision. 12.15.2012NKDecision

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Posted in Civil Suit, Labor Law, Municipal Liability, Politics, Wage and Hour

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1 comment Posted by on December 19, 2012

Honolulu Medics Allege FLSA Overtime Violations

EMTs and paramedics have filed a Fair Labor Standards suit against the city and county of Honolulu claiming they have been wrongfully denied overtime compensation. The suit was filed in U.S. District Court for the District of Hawaii.

Medics claim they have not been paid overtime for all the hours they work in excess of 40 hours per week. The suit seeks compensation for those extra hours going back three years, the maximum period that employees are allowed to go back under the FLSA. It also asks the court for an injunction against further violations, along with penalties and attorneys fees.

Paramedic Sonya Adams is one of the lead plaintiffs in the case. She was quoted as saying  “Every pay period employees enter our time correctly, but when we get our paychecks, there are shortages in overtime for many of us that can take as long as six years to correct. We love our jobs and helping people in emergency situations, but none of us can afford to wait six years to get paid.

Plaintiff’s attorney, Carl Varady was quoted as saying “All employers including the City must obey federal overtime law and regulations. Honolulu residents receive valuable and life saving services from their EMTs and Paramedics. Federal law requires that they be paid overtime when they work more than 40 hours in a week.”

More on the story.

UPDATE: 12/19/2012: Here is the Complaint in the Adams suit. HonoluluEMS

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Posted in Civil Suit, EMS, FLSA, Municipal Liability, Wage and Hour

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4 comments Posted by on December 13, 2012

Eight Fresno County Firefighters File FLSA Suit

Eight part-time paid on call Fresno County firefighters who were terminated for refusing to sign a form stating that they were volunteers have filed suit in Federal Court alleging violations of the Fair Labor Standards Act, retaliatory termination, and violation of their First Amendment rights.

Rather than rewrite what is already a very good overview of the case, attorney Gary Goyette has graciously allowed me to quote from his blog post on the case.

GOYETTE & ASSOCIATES FILES SUIT AGAINST THE FRESNO COUNTY FIRE PROTECTION DISTRICT FOR EIGHT FIREFIGHTERS TERMINATED FOR NOT SIGNING A QUESTIONABLE FORM

After five months of early settlement efforts failed, Goyette & Associates has now filed a federal lawsuit against the Fresno County Fire Protection District for the District’s termination of eight Paid-Call Firefighters (or “PCFs”) for – – believe it or not – – these firefighters’ refusal to sign a letter declaring their (alleged) legal status as “volunteers” to the District. The lawsuit contains causes of action for retaliatory dismissal, for suppression of free speech, and for associated claims for minimum wages and overtime pay.

Joseph P. Goodman, James B. Mason, Gregory Conley, Nicholas Russell, Cameron Donnahoo, William Sander III, Sergio Valdez and Terry Valdez were all PCFs who had worked hard for the District as part-time firefighters for between three and twenty-three years, responding to emergency calls as part of the PCF staff which supplements the full-time Cal-Fire firefighter staff serving the District. All were surprised when the District’s Fire Chief, Keith Larkin, issued a letter in February demanding that all PCFs sign an attached form – – the ‘Volunteer Status Form’. All were surprised that the letter threatened termination if it was not signed. All were even more surprised that the attached form was a ‘declaration’ stating that the signatory understood they were serving as a “Volunteer” to the District. They were surprised because the District had never in the past told PCFs they were volunteers, and had never treated PCFs as volunteers.

When these eight PCFs questioned their supervisors and other commanders within the District, including Chief Larkin, about the basis for this ‘alleged’ volunteer status, they were not provided any information, factual or legal, supporting the idea that PCFs were “volunteers”. After obtaining advice from legal counsel that the District PCFs did not appear to satisfy the ‘legal test’ for volunteers, based on the pay received and on the numerous ‘controls’ exercised by the District over the PCFs, and after having a Department of Labor (DOL) investigator tell them the same, these eight PCFs decided they could not sign a letter definitively stating that they “understood” they served as “Volunteers” to the District. Due to this good faith concern, the District terminated each of these individuals on April 26, 2012.

Each of these PCFs then appealed their terminations. On June 19, 2012, the District rejected the appeals and upheld the terminations.

Goyette & Associates’ lead wage and hour attorney Gary G. Goyette was extremely surprised by the District’s actions: “It’s hard to believe the District really took these steps against these dedicated firefighters. Not only do the facts show that District PCFs are employees instead of volunteers, but even if there was any debate on this classification, the demand to sign the declaratory letter, and the subsequent terminations have nothing to do with such debate. An employee’s (or volunteer’s) opinion or declaration as to whether they are (or are not) a ‘volunteer’ plays no part in the ‘legal test’ for volunteers. Individuals are allowed to ‘volunteer’ to public agencies only if they are not paid for their services above a ‘nominal fee’, and/or if the work is truly voluntary – – meaning they cannot be required to perform the services or follow mandates from the employer. The District’s decision to demand the Volunteer Status Form be signed, and their decision to terminate the eight PCFs who believed signing this declaration was dishonest served no purpose, and were entirely unnecessary. The fact that these acts are prohibited under the law is why we have sued the District, hopefully to get these eight firefighters reinstated to their part-time employment with the District.”

In the meantime Mr. Goodman, Mr. Mason, Mr. Conley, Mr. Russell, Mr. Donnahoo, Mr. Sander III, Mr. Valdez and Mrs.Valdez continue to deal with the emotional toll of going from hard-working, part-time firefighters for the District, serving the Fresno County residents, to individuals prohibited from such work, labeled in an adverse manner which has affected, and continues to affect both their careers and home lives going forward.

 

Here is a copy of the complaint. Complaint-FINAL-11-29-12

No word on what possible justification the district could have had for seeking to change the employees’ status from employee to volunteer, or in the alternative asking them to execute a false document.

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Posted in Civil Suit, Disciplinary Action, Discrimination, First Amendment, FLSA, Labor Law, Municipal Liability, Politics, Volunteers, Wage and Hour, Wrongful termination

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4 comments Posted by on December 7, 2012

Key Largo Volunteer Not an Employee under FLSA

At what point does a volunteer firefighter who receives some nominal compensation for his services become an underpaid employee entitled to at least minimum wage?

That question was recently put to the test in Key Largo, Florida when Corey Freeman filed suit claiming that because he was paid $5 per hour to serve as a volunteer firefighter he was actually an employee who was wrongly denied minimum wage.

The case, Freeman v. Key Largo Volunteer Fire & Rescue Department et al, 2012 U.S. App. LEXIS 22392 (11th Cir. 2012), was decided on October 31, 2012 but has more recently found its way into management and legal blogs, as well as the conventional media.

Freeman began with Key Largo VFRD in 2006, at which time he signed an agreement acknowledging his status as a volunteer and indicating he would receive $5 per hour, subject to a $1200 per month maximum. The department also employed paid employees who received $16.83 and $20.04 per hour.

The department was funded and under the umbrella of the Key Largo Fire and Emergency Services District. The hiring of paid department employees had to be approved by the district, who ultimately funded the positions.

Freeman filed suit in Federal court in 2010 claiming he was an employee of the department and/or the district, and that under the Fair Labor Standards Act (FLSA) he was entitled to minimum wage for all hours worked. The trial court ruled that he was not an employee under the FLSA, and Freeman appealed to the 11th Circuit.

The appeals court agreed with the trial court and applying  an “economic reality” test concluded that Freeman was not an employee. Central to the court’s ruling were the following:

  • Freeman signed the agreement accepting his status as a volunteer;
  • Volunteers received $5.00 per hour while employees received $16.83 and $20.04 per hour;
  • The KLVFRD needed permission from KLFESD to hire paid employees and Freeman never alleged that the department requested or that the district gave permission to hire him;
  • The days and shifts Freeman worked were not assigned and varied depending on his availability;
  • Freeman typically worked only two shifts per week;
  • The KLFESD did not supervise the firefighter and it did not mandate standard operating guidelines for the volunteer firefighters;
  • The firefighter’s individual rate of pay was not set by the KLVFRD or by KLFESA; and
  • Besides a W-2, the KLVFD provided no other employment records to the firefighter.

Oddly, the court did not consider nor even mention the 20% rule that is often used to evaluate when a volunteer’s compensation goes beyond a “nominal fee”.

As explained by the US DOL, the 20% rule states “As a general rule, the Department finds that a fee paid is (apart from expenses) nominal as long as it does not exceed 20 percent of the amount that otherwise would be required to hire a permanent employee for the same services.”

There are a number of issues associated with the 20% rule that the court might have tried to address, including:

  • Does the 20% rule apply to hourly pay, monthly pay, or annual pay?
  • If the 20% rule is applied solely on hourly pay, then $5/hour does indeed exceed 20% of $16/hour or $20/hour, in which case Freeman would satisfy his initial burden. The monthly and annual analysis would depend on total hours worked (40, 42, 48, 56 etc.) by the paid firefighters, at the applicable hourly rate. We could also consider it this way:  Does $1200/month (or $14,400 annually) exceed 20% of the monthly or annual compensation of the paid firefighters? If the firefighters receive more than $6,000 per month or $72,000 per year, then Freeman would lose based on the 20% rule. If they do not, then Freeman would have at least satisfied his burden under the 20% rule.
  • Should benefits factor into the evaluation of 20% or is it based on pay only?

Interesting questions that the court avoided having to address.

Here is a link to the US Department of Labor’s fact sheet discussing the economic reality test. Here is a link to a DOL opinion letter explaining the 20% rule.

Here is the court’s ruling: Freeman v Key Largo

Here is a management oriented blog about the decision, which incidentally fails to comment upon the absence of a discussion of the 20% rule.

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Posted in Civil Suit, FLSA, Labor Law, Volunteers, Wage and Hour

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1 comment Posted by on November 27, 2012

Indiana Retirees Settle Severance Lawsuit

A lawsuit filed last year over severance pay for seven retired Logansport, Indiana firefighters has been settled, but the decision has the local media asking a lot of questions.

Logansport firefighters Steve Crispen, William Hassett, Randy Landis, Kim Costello, Rex Danely, David Huff and James McMinn all accepted a retirement buyout in 2010 that gave them $26,000 each. After they accepted the offer and retired, the city refused to pay them for six weeks of unused vacation time that each had on the books.

The retirees sued in July 2011 claiming a violation of the Indiana Wage Payment Act. According to the suit, each member was claiming roughly $4,500 in lost wages.

The settlement, approved by the Logansport City Council on September 4, 2012, grants the firefighters $75,000 in damages, with $37,500 going to the attorneys and $37,500 going to the retirees.

An article last week by Caitlin Huston of the Pharos-Tribune shows the media has been trying to learn more about the settlement, but both sides remain quiet about the details beyond confirming the fact that the city’s insurer, Travelers, will pay $37,500, and the other half will come from the city’s rainy day fund.

At the heart of the media’s inquiry is no doubt the math: $4500 x 7 members = $31,500 in damages. Why would a city agree to pay $75,000 for a $31,500 claim? The article raises a couple of sinister implications:

One issue involves a change of city administration. The new mayor, Ted Franklin, is a firefighter himself, although he is on a leave of absence from the department. Could that have influenced the decision to settle?

Another issue raised is the fact that the new city attorney, Randy Head, actually represented the firefighters in the suit prior to accepting his position with the city. An outside firm was hired to represent the city in the case to avoid the obvious conflict of interest. Could that have influenced the decision to settle?

Left un-discussed in the article is the likely real answer to why a $31,500 case was settled for $75,000: The Indiana Wage Payment Act. The law grants double damages to employees who are wrongfully denied wages, including wages that may be due and owing upon retirement. Take a look:

IC 22-2-5-2 Failure to pay; damages; actions for recovery

     Sec. 2. Every such person, firm, corporation, limited liability company, or association who shall fail to make payment of wages to any such employee as provided in section 1 of this chapter shall, as liquidated damages for such failure, pay to such employee for each day that the amount due to him remains unpaid ten percent (10%) of the amount due to him in addition thereto, not exceeding double the amount of wages due, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages or the liquidated damages for nonpayment thereof, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff’s attorney or attorneys.

Thus the city was on the hook for $63,000 plus attorneys fees had the matter gone to court. Why would the media (fair and balanced) overlook such an explanation?

It certainly is more sensational to imply some of mischief on the part of city officials than bore folks with the details of the Indiana Code. In the mean time, what about the folks who were responsible for making the decision to withhold the $4,500 from each of the retirees in the first place?

More on the story.

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Posted in Civil Suit, Labor Law, Municipal Liability, Politics, Wage and Hour

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No comments Posted by on October 2, 2012

FLSA 20% Rule

Today’s Burning Question: How does the FLSA 20% rule with regard to volunteers work? We are having a debate over this at our department and our Firehouse Lawyers seem to disagree.

Answer: The FLSA’s 20% rule with regard to volunteers is essentially – that volunteers who receive some nominal compensation do not lose their status as volunteers provided they receive “generally, an amount not exceeding 20 percent of the total compensation that the employer would pay to a full-time firefighter for performing comparable services.”

An example: if the total compensation for full time firefighters is determined to be $40,000 per year, and a volunteer is given an $800/year stipend, then because $800 is less than 20% of the total compensation there is no FLSA violation.

However, if a volunteer were to be compensated at a higher rate, say $8,500/year – then it would be an FLSA violation and the department would then have to pay the firefighter at least minimum wage for all hours worked.

To determine “total compensation” the FLSA requires a department to look at what they pay their own hourly employees, and include additional benefits such as pensions, health care, and vacations. For departments that have no full time employees, they may look to comparable departments in the area.

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Posted in Burning Question, FLSA, Volunteers, Wage and Hour

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No comments Posted by on July 24, 2012

Louisiana Lawsuit Settled Over Raise Calculation

Sulphur Professional Firefighters Association, IAFF Local 3765 and the City of Sulphur, Louisiana have reached a settlement in their lawsuit that dates back to 2008. The lawsuit accused the city of improperly calculating across the board raises given to firefighters over the years in 2006, 2007, and 2008.

More on the story.

 

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Posted in Civil Suit, Labor Law, Wage and Hour

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No comments Posted by on June 14, 2012

Canton Firefighters Face Discipline In Subbing Scandal

The scandal in the Cleveland Fire Department over illegal compensation of substitutes has claimed five more victims… this time in the Canton Fire Department. Firefighters William Hallas, Andrew Bolgiano, Rosario Carcione, Timothy Givens and Kevin Gordon have drawn suspension penalties for improperly trading shifts during a three month period from October 2011 to  December 2011. An internal investigation was launched after an audit of the Cleveland Division of Fire revealed rampant shift trades and misuse of sick time.

The Canton investigation was allegedly prompted when fire officials became aware that some firefighters were working long hours leading to safety concerns. The issue then became substitutions in exchange for cash with no intent to repay the time owed.

According to Fire Chief Stephen Rich, the five firefighters were guilty of “conduct unbecoming to an officer and subversive and prejudicial to the good order and discipline of the division.” Canton Professional Firefighters Association President Rosario Carcione (himself one of the accused) told reporters “I don’t believe we’ve done anything wrong.”

The firefighters were suspended without pay effective May 23, 2012. They were:  

- Rosario Carcione – 60 days

- William Hallas – 60 days

- Andrew Bolgiano – 60 days

- Timothy Given – 3 weeks

- Kevin Gordon – 2 weeks

While police were called in to investigate the matter, no criminal charges were filed although the tax and pension consequences of the payments remain under review.

The firefighters have grieved the discipline, and sought arbitration. Union President Carcione went to court last week seeking a temporary restraining order to block his suspension. He later withdrew his complaint after the city Safety Director Thomas Ream agreed to hear the grievances by June 11, and speed up the arbitration process. An arbitrator will be selected by June 12, and render a decision within 21 days.

In the aftermath of the scandal, the fire department introduced policy changes that will track and monitor shift trades. Firefighters must repay the swap time within a 12-month time frame.

More on the story.

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Posted in Criminal Law, Disciplinary Action, Labor Law, Wage and Hour, You Can't Make This Stuff Up

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2 comments Posted by on June 5, 2012

Arkansas DOD Fire Chief Pleads to Fraud Charges

The fire chief at the Pine Bluff Arsenal in Arkansas has pled guilty to overtime fraud. Fire Chief Thomas James Braumuller allegedly billed the government more than $133,000 in fraudulent overtime between January 2009 and March 2011.

Braumuller, aged 54, has been a Department of Defense firefighter since 1988. He started working for the Pine Bluff Arsenal (a special military installation overseen by the United States Army Joint Munitions Command) in 2004. Braumuller was appointed chief of Pine Bluff Arsenal in 2006 with an annual base pay of approximately $115,000.

The United States Army Joint Munitions Command noticed irregularities in his overtime claims, and initiated an investigation. Braumuller resigned in March 2011 and was charged with presenting a false claim to the United States for overtime he did not work.

Braumuller pled guilty to the charges on April 19, 2012, in U.S. District Court in Little Rock and agreed to pay a restitution of $58,594 to the department, he admitted that he used the money to pay medical bills and other personal expenses. He will be sentenced at a later date, and faces up to 5 years in jail and a $250,000 fine.

Here is the plea agreement submitted to the court. braumuller_plea_agreement

More on the story.

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Posted in Criminal Law, Disciplinary Action, Wage and Hour

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No comments Posted by on April 25, 2012

Cleveland Firefighter Pleads in Subbing Scandal

A Cleveland firefighter who has been at the center of the substitution abuse scandal has pled guilty to criminal charges and will serve 60 days in prison.

Firefighter Timothy Debarr was sentenced to 60 days in jail and will pay a $1,000 dollar fine for allegedly paying co-workers to substitute 4,336 hours for him, dating from January 1, 2009, through December 31, 2010.

The formal charge against Debarr was soliciting or receiving improper compensation. Ohio law prohibits an employee from paying a substitute as well as receiving undocumented compensation for substituting.

Under the plea agreement Debarr will not have to pay restitution. He is said to be cooperating with authorities who are investigating widespread abuses in substituting, sick leave and overtime. He also resigned from the department.

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Posted in Criminal Law, Disciplinary Action, FLSA, Labor Law, Wage and Hour

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6 comments Posted by on April 18, 2012

Louisiana Firefighters Settle Suit for $395k

A group of 35 firefighters have settled a decade’s long lawsuit against the City of Ruston, Louisiana for $395,000. The suit was filed in 2001 over the way that officers’ compensation was being calculated.

The suit alleged that the city failed to comply with a state law mandating that officers be paid a minimum pay differential above firefighters’ base pay. At the time suit was filed, base pay for firefighters was $4.35 per hour, $5.15 for firefighters with EMT. State law required captains to be paid at least 25% more than firefighters, which the suit alleged was not being done.

Both sides expressed relief that the suit was finally over. The city aldermen voted earlier this week to allocate $395,000 from the general fund into the fire department’s budget.

More on the story.

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Posted in Civil Suit, Labor Law, Municipal Liability, Politics, Wage and Hour

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No comments Posted by on April 4, 2012

When Is a Raise Not A Raise?

Question: Is a step increase a raise? I suppose to the public and politicians, a step increase most certainly is a raise. One day a firefighter receives X for compensation, then next he receives X + Y. It looks like a raise, it quacks like a raise, therefore it is a raise…. Right?

So why am I am struggling to find common ground with them on this issue. A step increase is different from a “raise”. A raise is an increase in pay… no wait, that doesn’t explain it. … mmm.  How do I explain it.  A step increase is a raise that occurs over and above the increases that other employees receive… hummm… no, that doesn’t seem like a good enough explanation either.  A step increase is earned…. There. That’s it. A step increase is earned… But wait, isn’t any raise earned?

My gut tells me there is a difference… a huge difference between a step increase and a raise…. What do you think?

Here is a story about a lawsuit in Massachusetts by a local seeking to enforce contractual step increases despite a wage freeze.

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Posted in Civil Suit, Labor Law, Politics, Wage and Hour

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1 comment Posted by on February 25, 2012

City Sues Firefighters Over Overtime Question

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Posted in Civil Suit, FLSA, Labor Law, Wage and Hour

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No comments Posted by on February 3, 2012

FLSA and Volunteers

Today’s burning question is one that has come up before, and will no doubt come up again: I am the new chief of a mostly volunteer fire department. The six career firefighters, who are all former volunteers, have never been allowed to volunteer their services after hours. They work five days a week, fifty hours a week total. All have expressed to me their willingness to respond to alarms on nights and weekends. Can I let them?

Answer: The short answer is, yes you can allow them to respond to alarms outside their normal hours, provided you are willing to pay them overtime. The long answer is…. well… complicated and involves the Fair Labor Standards Act (FLSA).

Under the FLSA, hourly employees are entitled to overtime compensation after 40 hours a week. There is an exception for public sector firefighters known of the 207K exemption that allows them to work up to an average of 53 hours per week (212 hours in a 28 day period) before overtime is triggered. The distinction between public and private sector departments is important because if your department is a volunteer fire company (a private sector entity) – you may owe your personnel overtime for all hours worked over 40. If your department is a municipal department, a fire district, or other public sector entity, then your firefighters can work their current fifty hours a week at straight time (hourly) rate or for a salary without triggering overtime.

While often misunderstood by firefighters, the FLSA requirement that all hours worked for an employer (even volunteer hours) must be counted as compensable hours worked – actually makes a lot of sense. There are many unscrupulous employers out there who would be all too happy to find ways to induce their employees to “volunteer” to work extra hours if the law permitted them to. While most employers trying to exploit the volunteer angle would not be fire departments – the truth is there would be some departments that would. Hence the FLSA does not allow an hourly employee to “volunteer” for his/her employer without compensation.

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Posted in Burning Question, FLSA, Volunteers, Wage and Hour

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1 comment Posted by on December 26, 2011

Patterson Firefighters Grieve Withholding of Storm Related Overtime Pay

Patterson, New Jersey, Firefighters IAFF Local 4577 have filed a grievance against the city of Patterson over the non-payment of overtime wages for work performed during the flooding associated with Hurricane Irene and Tropical Storm Lee last September. The grievance is similar to one filed last month by the Patterson Police union over the same issue. Between the two locals, the total amounts alleged to be owed exceed $200,000.

The payments appear to be mired in city council action. The council is said to be investigating the overtime and have asked for additional information to “authenticate the additional hours worked.”

Most states have a statute that specifies the time frame that an employer has to pay wages to employees following days that the work is performed. In New Jersey, the law reads as follows:

34:11-4.2. Time and mode of payment; paydays

Except as otherwise provided by law, every employer shall pay the full amount of wages due to his employees at least twice during each calendar month, on regular pay days designated in advance by the employer…. The end of the pay period for which payment is made on a regular payday shall be not more than 10 working days before such regular payday, provided that if the regular payday falls on a nonwork day payment shall be made on the preceding work day.

Basically, overtime wages must be paid within ten days from the closure of the next pay period following the hours worked. The law allows an employer to withhold wages that are disputed:

34:11-4.8. Dispute over amount of wages

a. In case of a dispute over the amount of wages, the employer shall pay, without condition and within the time set by this act, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies to which he might otherwise be entitled, including those provided under this act, as to any balance claimed.

b. The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of his claim and any release required by an employer as a condition to payment shall be in violation of this act and shall be null and void.

However, in the event that an employer is found to wrongfully withhold funds, the penalties are substantial – and include a criminal offense. Take a look:

34:11-4.10. Violations

Any employer who knowingly and willfully violates any provision of 34:11-4.1 et seq. shall be guilty of a disorderly persons offense and, upon conviction for a violation, shall be punished by a fine of not less than $100 nor more than $1,000. Each day during which any violation of this act continues shall constitute a separate and distinct offense. …

When you consider that each employee who was wrongfully denied overtime is a separate violation, and that each day between September and December is a separate violation, the cost to Patterson could be enormous – if they are found to have “knowingly and willfully” violated the statute.  While at present the case is a contractual grievance (the local alleges the collective bargaining agreement was violated), New Jersey statutes authorize the Commissioner of Labor to investigate violations, and proceed against violators.

More on the story.

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Posted in Labor Law, Wage and Hour

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2 comments Posted by on December 14, 2011

Iraq and Afghanistan Firefighters File Suit for Over $100M

On Tuesday, twenty-eight US firefighters filed a class action lawsuit against Wackenhut Services International, Kellog-Brown & Root, LLC (KBR) and Halliburton Corp, claiming fraud, conspiracy, and breach of contract arising out of their work in Afghanistan and Iraq.

The firefighters allege they were deceived into going overseas, not paid the wages and benefits they were promised, and threatened when they tried to complain. The 30 page complaint was filed in Federal District Court in Washington, DC.

The suit alleges that some 2,000 firefighters were wrongfully deprived of “lawful wages required by government contracts – including in-country pay, danger pay, on-call pay, up-lift pay, overtime, and other benefits and compensation”. The suit also alleges that the defendants billed the US government for hours worked by the firefighters for which they were never paid.

According to the complaint, firefighters were required to be on duty 24/7, but were only paid for 12 hours a day. They claim they were told there would be two shifts assigned each day, but when they arrived there was only one shift. The defendants required them to remain at work on-call with no pay for the other 12 hours.

The named plaintiffs were among those who opted out of a proposed arbitration settlement that was negotiated with the defendants back in 2010. The proposed settlement would have granted $1,500 to each firefighter and paid the attorneys who brought the claim $1,000,000. The plaintiffs opted out because their average lost overtime claims exceeded $40,000, exclusive of interests, costs, civil penalties, and attorneys fees – all of which are compensable under the FLSA.

The plaintiffs are seeking to recover compensable damages, statutory damages and penalties, plus over $100,000,000 in punitive damages. While it is a tough read, the complaint is pretty interesting.

Here is the complaint. Hill v Wackenhut

More on the story.

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Posted in Civil Suit, FLSA, Politics, Wage and Hour, You Can't Make This Stuff Up

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5 comments Posted by on December 8, 2011

LA Captain Accused of Bogus Payroll Scheme

A Los Angeles fire captain is on paid administrative leave as the LAFD investigates how he was able to receive nearly $80,000 in additional compensation from the department in 2010. Captain Eric Vasquez was assigned to supervise time sheet recordkeeping, and is alleged to have found a way to receive compensation for roughly 23 weeks of vacation time plus his regular salary.

In 2010 Vasquez received $185,645, while in 2009 he received $168,494. The discrepancies were discovered when the department switched from a manual to a computerized time tracking system. LAWeekly took a sarcastic swipe at the LAFD over the story, suggesting that perhaps Vasquez had been “chalking up some extra hours on his caveman’s tablet” prior to the computer upgrade.

 

 It goes without saying that much of the public believes the kind of financial abuse that is alleged here, is rampant both in the fire service, and in public employment in general.  No doubt many earnestly believe it is the type of misconduct that is feeding the current economic crisis. We can say that such cases are a rarity – and indeed they are – but the damage to every firefighter from LA to NY when these stories are aired is incalculable. Once again, we are our own worst enemy.

More on the story.

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Posted in Criminal Law, Disciplinary Action, Wage and Hour, You Can't Make This Stuff Up

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No comments Posted by on November 12, 2011

Texas Refinery Firefighters File FLSA Suit for Overtime

Two former industrial firefighters at the port of Corpus Christi, Texas have filed a Federal lawsuit alleging they were wrongfully not paid overtime for all hours worked in excess of 40 hours per week.

Joe Dale Martinez and Fidencio Lopez Jr. worked for a privately owned firefighting cooperative group named Refinery Terminal Fire Co.  and owned by industrial companies including Calpine Corp., Citgo Corpus Christi Refinery, Diamond Shamrock’s Corpus Christi facility, Elementis Chromium, the Lyondell Chemical Corpus Christi plant, El Paso Corp., Koch Pipeline Co., Flint Hills Resources, the Port of Corpus Christi Authority and Valero Refining.

The suit seeks damages for all hours worked in excess of 40 hours per week, plus compensation for time they were required to be on-call, citing the Fair Labor Standards Act (FLSA). Most firefighters are familiar with the fact that the FLSA allows fire departments to exceed the 40 hour requirement for firefighters. In fact, firefighters can be required to work up to 53 hours a week prior to triggering the overtime requirement.  The little known provision that permits this is 29 USC §207(k).

The little known part of this little known provision is that it ONLY applies to public sector firefighter. Industrial firefighters and firefighter who work for private sector employers fall under the normal 40 hour per week requirements.

Here is a copy of the complaint.RefineryTerminalFireCo_Complaint_pdf

Here’s news cover of the suit.

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Posted in Civil Suit, FLSA, Wage and Hour

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No comments Posted by on September 20, 2011

FLSA Overtime Suit Filed in Kansas City

A Kansas City, Missouri Fire Department EMT has filed a class action lawsuit against the city alleging that overtime pay for EMTs and paramedics has been improperly calculated.

Marissa Hermsen filed suit yesterday alleging that EMTs and paramedics should receive overtime compensation after working forty hours per week. The Federal suit was filed in U.S. District Court for the Western District of Missouri alleging a violation of the Fair Labor Standards Act (FLSA).

The crux of the problem appears to involve the FLSA’s §207(k) exemption that allows firefighter to work up to 53 hours per week (212 hours in a 28 day period) without triggering the overtime requirement. Since April, 2010, KCFD has been operating the city’s former MAST ambulance service that employs roughly  140 paramedics and 1,000 EMTs. As non-firefighters, the §207(k) exemption would not apply to EMTs and paramedics unless they are cross trained and serve as an “integral part of the public agency’s fire protection activities.”

The following is from the FLSA:

29 USC § 203. Definitions

(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.

The situation has caused considerable turmoil amongst EMS personnel who historically worked 40 hours a week. Here is a link to a story about some of the issues.

And here is a copy of the complaint that was filed yesterday. KansasCity

According to IAFF Local 42 President Louis Wright, the city’s practice does not appear to violate the FLSA and was thoroughly researched. More on the story.

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Posted in Civil Suit, EMS, FLSA, Wage and Hour

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4 comments Posted by on July 30, 2011

Louisville Firefighters Suing Attorneys Over Settlement

What would you do for an attorney who got you a $43.5 million settlement? What if the attorney only took a $1.5 million fee, not the more normal one-third? In Louisville, Kentucky, roughly 500 current and former firefighters who received a $43.5 million settlement in 2009 are now suing their attorney claiming he pushed them into settling for too small a figure.

The original case is one we covered back in 2009 relating to the improper calculation of overtime wages under the Fair Labor Standards Act and Kentucky wage and hour laws. The law suit had been tied up in court for over nine years, and followed a series of prior cases dating back to the early 1990s.

The firefighters are now suing attorney Doug Steele, his law firm of Woodley & McGillivary, of Washington, DC, and a Kentucky attorney, Herbert Segal, who served as local counsel. The suit seeks the difference between what the firefighters settled for in 2009 and what they would have received if they had gone to trial.

The suit alleges that Steele never told them what they would get if the case went to trial, only what they were offered in the settlement. The suit claims that Steele was required by Kentucky law to meet with each firefighter individually to discuss what was in their best interests, not by holding a large meeting.

Steele is quoted as saying “We believe that we provided excellent legal assistance to more than 800 firefighters in the Louisville back pay litigation. Our firm fought on their behalf for more than nine years, ultimately resulting in a settlement worth more than $50 million dollars in back pay, settlement premium, retirement benefits and expenses.”

More on the story.

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Posted in Civil Suit, FLSA, Wage and Hour, You Can't Make This Stuff Up

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1 comment Posted by on July 20, 2011

Birmingham Firefighters Challenge Unannounced 20% Pay Cut

Birmingham, Alabama firefighters filed suit against the city last Friday afternoon, September 24, 2010, hours after the city cut their pay by 20% without bargaining or giving them notice. According to one news source, firefighters learned about the cuts when they received their pay checks on Friday morning.

The unannounced pay cuts were supposedly to offset two years of erroneous pay schedules that the city claims impacted approximately 600 firefighters.  The city alleges that the salaries paid to firefighters were too high because the city incorrectly set their hourly pay rate the same as for police officers…. even though they do receive  the same weekly pay… because firefighters work more hours.

The firefighters union, IAFF Local 117, filed the lawsuit against the city and Mayor William Bell over pay cuts alleging that the Mayor cut the salaries illegally and unannounced.  Here is a copy of the union’s complaint. Download Birmingham Complaint. You will notice the allegations in the law suit sound quite a bit different than the mayor’s version of events.

This suit is not the only one facing the city of Birmingham over firefighter wages. In August, firefighter Michael Carroll filed a Federal class action lawsuit against the city alleging Fair Labor Standards violation over the way hours are calculated.

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Posted in Civil Suit, FLSA, Labor Law, Politics, Wage and Hour

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No comments Posted by on September 29, 2010

Pelham Firefighters Claim FLSA Violation

Firefighters in Pelham, Alabama have filed a lawsuit against the department alleging that their work schedule violates the Fair Labor Standards Act (FLSA). The act requires that firefighters who work more than 52 hours per week, or on average more than 212 hours in an 28 day (4 week) stretch, receive either overtime compensation or compensatory time off.

According to the suit, Pelham firefighters work a typical three shift schedule of 24 hours on, 48 hours off, which averages 56 hours per week. The problem is the city requires the firefighters to take compensatory time in lieu of overtime, and then restricts their opportunities to use that time when they request it.

The FLSA mandates that employers who use comp time in lieu of overtime (1) obtain the agreement of employees to accept comp time and (2) allow the employee to use the accrued time within a reasonable period of time after it is earned, provided it would not unduly disrupt operations.

The suit seeks class action status for all current and former firefighters in Pelham since 2003.

For more on the suit.

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Posted in Civil Suit, FLSA, Wage and Hour

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8 comments Posted by on May 20, 2010