Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Twelve current and former members of the Page County Fire & EMS have filed a class action lawsuit claiming they were not compensated for all of the hours they worked, and not paid overtime as required by the Fair Labor Standards Act. The suit was filed in US District Court for the Western District of Virginia.
The suit alleges the plaintiffs are non-fire EMS personnel who the county treated as 29 USC § 207k qualifying firefighters, or more precisely: employees in fire protection activities. The term employee in fire protection activities is defined in 29 USC § 203y and has four precise requirements that non-fire EMS personnel do not meet. Those who qualify as employees in fire protection activities can work up to 212 hours in 28 days at straight pay before being eligible for overtime. EMS personnel who do not qualify as employees in fire protection activities are entitled to overtime after 40 hours in a 7-day work week.
Quoting from the complaint:
- Named Plaintiffs, and others similarly situated, were routinely scheduled for, and worked hours well in excess of 40 in many weeks during the relevant time period.
- At all relevant times, Named Plaintiffs, and others similarly situated, were normally scheduled for, and worked, at least one-hundred and six hours during each two-week period, amounting to approximately two-hundred and twelve hours per month.
- Due to short staffing, Named Plaintiffs would, at times, work shifts as long as ninety-six hours.
- Defendant did not pay overtime for any hours worked by Named Plaintiffs, and others similarly situated, for those hours between one-hundred and sixty hours per month and two-hundred and twelve hours per month.
- For those hours between one-hundred and sixty hours per month and two-hundred and twelve hours per month, Defendant only paid straight time to Named Plaintiffs and others similarly situated.
- For hours above two-hundred and twelve hours per month, Defendant paid overtime in certain circumstances.
- Defendant developed a payment scheme wherein Named Plaintiffs and others similarly situated would only receive straight time on their first check of the month, regardless of how many hours Named Plaintiffs worked.
- “On the second check of each month, Named Plaintiffs and others similarly situated would receive straight time payment for the hours worked during the second half of the month and an overtime premium for those hours worked in excess of two-hundred and twelve hours in that month.
- In addition, Defendant used an illegal scheme to recoup leave hours used by Named Plaintiffs.
- When a Named Plaintiff or others similarly situated used leave of any sort, rather than subtracting those hours from that individual’s accrued leave, Defendant would deduct those hours from the overtime hours worked by that Named Plaintiffs or others similarly situated.
- For example, if an individual Named Plaintiff or any others similarly situated took three days of leave during a month, Defendant would reduce that individual’s overtime hours by twenty-four hours per day of leave, or a total of seventy-two hours.”
Besides alleging violations of the FLSA, the suit claims a violation of Virginia’s Overtime Wage Act and Virginia’s Wage Payment Act. The Virginia Overtime Wage Act allows for triple damages for “knowing” violations, as opposed to the FLSA’s double damages.
A copy of the complaint is attached below.
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