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.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer’s Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

  • SCFFMedic

    Curt I use to work in a dept. where we worked 24.25 hours. shift change was at 0745 and off the next day at 0800. The dept. said 16.25 of those hours were worked hours and from 2230 to 0630 were sleep hours. So it was nearly impossible to get the 212 for the month for any ot. Only way to get the whole shift as actually worked was to be up in the middle of the night during the designated sleeping tiime for more than three hours. If you were you got credit for 24.25 hours worked. It seldom happened. What are your thoughts on this and what does the law say?

  • Jason
    So long as the FD does it right – they can deduct sleep hours. Its flirting – skirting with the OT provisions of the FLSA – but not breaking them. I cover that very issue in depth in both of my books.
    Many departments do not dot their i’s and cross their t’s when it comes to FLSA issues – so I cannot say whether what they did is legal or not without examining their records. I can tell you that it is possible to do what they did under the FLSA – if they did it right. One of the biggest hurtles they have is that the employees must “agree” to the arrangement.
    The following is 29 CFR 785.22. It applies to firefighters (not other occupations).
    (a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona
    fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked. (Armour v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944); General Electric Co. v.
    Porter, 208 F. 2d 805 (C.A. 9, 1953), cert. denied, 347 U.S. 951, 975 (1954); Bowers v. Remington Rand, 64 F. Supp. 620 (S.D. Ill, 1946), aff’d 159 F. 2d 114 (C.A. 7, 1946) cert. denied 330 U.S. 843 (1947); Bell v. Porter, 159 F. 2d 117 (C.A. 7, 1946) cert. denied 330 U.S. 813 (1947); Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C.A. 8, 1947); Rokey v. Day & Zimmerman, 157 F. 2d 736 (C.A. 8, 1946); McLaughlin v. Todd & Brown, Inc., 7 W.H. Cases 1014; 15 Labor Cases para. 64,606 (N.D.
    Ind. 1948); Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W.D. Pa. 1947).)
    (b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours’ sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).)

  • SCFFMedic

    that law sounds just like what we did at the FD but I don’t remember anyone agreeing to it nor was anyone asked. I believe we were just told that was how it was. Kind of shady if you ask me.
    What are your feelings about the Chicago case and supreme court decision? I am so against what they decided. Everyone who takes those tests know you have to score in the top so many just to get a shot at getting hired. No one expects to be hired if they were number 50 on the test and they have few openings. Race and color should never be a consideration for a job. EOE is there to make sure all people are given the same chances and opportunities for jobs and promotions. It’s not there so you don’t have to be the best and gauranteed a job.
    How do you feel about the collective bargaining being brought to the table by Harry Reid? They’ve been working on this for past few years and can’t seem to get it through the Senate. House passed the original bill overwhelmingly. I don’t understand how the people against the bill can say things like it should be up to local municipalities and the states, not a federal thing. How many years have the states and local govt had the opportunity to do the right thing and still don’t do it. Charleston FF’s have had a union for many years but the Mayor never had to listen to them or even sit with them. He still doesn’t but now does so after 6/18. Maybe if he had done so earlier the tradgedy might have been avoided.

  • Lots of questions there Jason …. As for Chicago, and FDNY – on the surface people see what they want to see. If blacks do poorly, some see race discrimination. Others see the same thing and conclude merely that blacks did poorly compared to others who did better.
    I don’t know where the truth lies, or where fairness lies. There are arguments that go both ways and both make sense.
    I can tell you that I am dumbfounded that no one seems to be able to come up with a test… any test… that does not result in a disparate impact. Its just case after case of failed examination processes. Chicago, New York, Philly, New Haven, Newark, St. Louis, Dayton, I would hope at some point that the Supreme Court – or perhaps Congress – will take the bull by the horns and either (1)demand a truly race neutral selection process that all parties can agree upon or (2) conclude that such a process is a pipe dream and instead opt for one that is as fair as our human limitations can make it.
    The firefighters I know – like the ones you know – just want a level playing field. Instead the best intentions of many have left us with a playing field loaded with land mines – legal land mines – that go off here and there and hurt blacks and whites alike.

  • Billy Ray

    I think a point was left out of the Pelham article. Doesn’t the FLSA also state that the use of that compensatory time can not be denied to avoid paying overtime?

    Our department has no means to request the use of Comp time. The request must be made as vacation time and then they make you use comptime on the books before vacation time. But they can deny your vacation request because of staffing. This way the avoid OT at both ends. I don’t build enough Comp time to rock the boat. But they get a lot of guys to teach classes, attend mandatory classes etc. for comp time that the then carry for 6 months or more. Yet they are denied vacation requests in that same 6 month period.

  • Billy Ray

    Sounds like you need to talk to the Department of Labor. The law is pretty clear.

  • Billy Ray

    Yea right. Is the Department of Labor accepting applications? Cause I will be needing a job after I stir that pot.

  • Thumper

    I went through a class action suit just like this in Escambia County Florida with there EMS system. We won a settlement. Made BANK!! Go for there Throat cause I promise you they would go for yours if it were on the other foot. Remember “honest days pay, for an honest days work”.


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