Colorado Firefighters File Class Action FLSA Suit

Three Colorado firefighters have filed a class action lawsuit claiming their department has refused to pay them overtime in violation of the Fair Labor Standards Act. Hunter Richardson, Alec Coscarella, and Jennifer Anderson filed suit today against the Rye Fire Protection District.

The suit was filed in US District Court for the District of Colorado. It alleges the department not only failed to pay overtime, but failed to adopt a work period pursuant to 29 USC §207k. By failing to adopt a work period, the department is potentially liable to pay overtime based upon a 40 hour work week under 29 USC §207a.

Take a look at the US Department of Labor regulation on point:

• 29 CFR § 553.230 Maximum hours standards for work periods of 7 to 28 days—section 7(k). For those employees engaged in fire protection activities who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required under section 7(k) until the number of hours worked exceeds the number of hours which bears the same relationship to 212 as the number of days in the work period bears to 28.

The argument has been made that a fire department that fails to adopt an appropriate work period, may –  by default – lose the 7k exemption and thus owe overtime pursuant to  29 USC §207a (ie. overtime after 40 hours per week). Quoting from the complaint:

• Plaintiffs Anderson, Coscarella, and Richardson, and those similarly situated were affected by a common compensation policy, plan or decision which was made by the Board of Directors of the Rye Fire Protection District or its Fire Chief who was authorized to establish a compensation plan for firefighters.
• Specifically, a decision, plan or policy was implemented to pay firefighters at their regular rate of pay for hours worked over 40 in a single work week, and not to pay them one and one-half times their regular rate of pay for hours worked over forty in a single work week.
• None of the firefighters employed by the RFPD, regardless of rank or pay level, are exempt from the overtime requirements of the FLSA.
• At all times relevant to this Complaint, the RFPD operated on a “48/96 schedule” for firefighting employees.
• A 48/96 schedule involves firefighter employees working for 48 straight hours and then being off duty for the next 96 hours.
• A 48/96 schedule is also colloquially referred to as a “two days on, four days off” work schedule.
• The RFPD never adopted an established and regularly recurring work period for the firefighters.
• The RFPD never expressed an intention to have a specific established and regularly recurring work period for the firefighters.
• In job offer letters provided to employees, the RFPD stated that employee “regularly scheduled work hours will be as designated” but did not state if there was an established and regularly recurring work period for the firefighters.
• At all times relevant to this Complaint, RFPD payroll is tallied from the 28th of the month to the following 27th.
• At all times relevant to this Complaint, the RFPD paid firefighter employees on the first day of the month.
• At all times relevant to this Complaint, the RFPD’s pay records indicate that firefighter employees were paid on the first day of the month for work performed during the previous calendar month.
• While using the 48/96 schedule, the RFPD never identified an established and regularly recurring period of work for the firefighters.
• While using the 48/96 schedule, the RFPD never established a beginning and ending time for the firefighters’ work period.
• The RFPD did not pay firefighters at one-and-one-half times their regular rate of pay for hours worked over 40 in a single workweek.
• The RFPD did not pay firefighters at one-and-one-half times their regular rate of pay for hours worked over 212 in a 28-day period.
• The RFPD did not pay firefighters at one-and-one-half times their regular rate of pay for hours worked which exceeded the number of hours which bears the same relationship to 212 as the number of days in a work period bears to 28.
• The RFPD simply did not pay overtime compensation to firefighters, regardless of the number of overtime hours the firefighters worked.

Here is a copy of the complaint. If you have concerns about overtime and the FLSA, join us in Indianapolis, Indiana on February 11-13, 2025 for FLSA for Fire Departments.