Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: The line chiefs in my fire department (deputy and battalion chiefs assigned to shifts) have gotten together to file an FLSA claim. We feel we are improperly classified as being exempt executives when we should be hourly employees. The Fire Chief has publicly stated that if we are successful, he will change our titles to eliminate the word “Chief”. Can he do that?
Answer: You would think in this day and age that anyone who is bright enough to become a fire chief would recognize the risk of unlawfully retaliating against his/her employees. Your chief would appear to be one who did not get the memo.
Like most laws aimed at protecting employees, the Fair Labor Standards Act (FLSA) prohibits retaliation against employees who file an FLSA claim. Changing your title to one that is less prestigious if you prevail, would constitute unlawful retaliation. Threatening to change your title could also be retaliation. Threats can be an adverse employment action, particularly when calculated to have a chilling effect on employees who have made claims, not to mention the effect they may have on others who may be considering making similar claims.
I have to believe your chief has gone rogue on his/her attorney, because no attorney in their right mind would allow a client to do something as foolhardy as to make such a threat. Just making the threat can be a slam-dunk FLSA relatiation violation. Plaintiffs’ attorneys love retaliation claims because they are so much easier to prove than the underlying FLSA violation. Why is that a big deal?
The status of line chiefs as first responders (and thus subject to the First Responder Regulations 29 C.F.R § 541.3) is being litigated in many jurisdictions around the country. The next few years will be telling on whether line chiefs can be classified as exempt or hourly. If you win, the city will be liable for your damages, interest, costs and attorneys fees. If you lose, you will be liable for your own costs and attorneys fees.
By the chief making his/her threats of retaliation, you will now likely win on the retaliation claim EVEN IF YOU LOSE THE EXEMPT HOURLY CLAIM. That opens the door to the city having to pay your attorneys’ fees, costs and some damages that the city otherwise would not have been liable for. Threatening employees is just such a strategic (rookie) mistake.
