Florida County Contemplates Suing Departed Firefighter for Cost of Training

Today’s burning question: I signed an agreement with my former fire department requiring me to repay them for the costs of my paramedic training if I did not remain with the department for at least two-years. A few months after I completed the training I was offered a position with a larger fire department, so I left. Can they really sue me?

Answer: They can definitely sue you, the question is going to be will they prevail.

Monroe County (FL) Fire Rescue is considering its options in pursuing firefighter Anthony Moore to recoup the costs of his paramedic training. Moore resigned from the department on May 15 to accept a position with the West Palm Beach Fire Department.

Last October, Moore signed an agreement to repay Monroe County the $7,000 it paid for his paramedic training if he failed to work at least two more years. Here is an article on the story.

The bigger question is, are such agreements actually enforceable?

Many employers find themselves providing new employees with expensive training, only to have those employees depart shortly thereafter for a similar employer who offers better wages and benefits. Historically, employers tried to use non-compete agreements to address these concerns, with employees being forced to promise not to work for a competitor for a designated period after their employment ends. Non-compete agreements are fraught with legal problems and from a fire department perspective would likely be held unenforceable.

The more common solution to training cost problems are post-employment repayment agreements. However, repayment agreements are like non-compete agreements in that they are subject to a variety of defenses. In fact many of the legal principles that developed in regards to non-compete agreements, are applied by courts to repayment agreements.

For example, repayment agreements will often be evaluated for reasonableness and proportionality, and struck down when a court finds them to be lacking in either. Thus agreements that require excessive payments out of proportion to the actual costs of the employer will likely be struck down.

The way the agreement is written is also vitally important. As a general rule in contract law, penalty provisions are not enforceable. Therefore repayment agreements drafted in such a way that repayment is deemed to be a penalty may be DOA.

There are a number of other legal theories on which repayment agreements can be challenged, including unconscionability, lack of consideration, void as against public policy, violation of the collective bargaining agreement, duress and even wage and hour violations. In 2011, the 9th Circuit upheld an agreement against allegations that it violated the Fair labor Standards Act (FLSA) Gordon v. City of Oakland, 627 F. 3d 1092 (9th Cir., 2010). A key factor was that the repayment schedule did not reduce the employees’ compensation over the time he worked to below minimum wage.

However, properly drafted, reasonable and proportional post-employment repayment agreements are generally enforceable.

Here is a copy of the Gordon decision: Gordon v Okland

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.
  • Robert Avsec

    Nice piece, Curt. Besides the legal questions regarding the agreement, I’m troubled by the ethical aspects of an employee who willfully and knowingly signs an agreement, a promise if you will, to their employer saying, “Train me because I want to have the skills to be a better firefighter/medic and make a contribution to the organization.” So the organization does that with the expectation that for at least two years that employee is going to be filling that role for the department’s service delivery.

    Then employee reneges on their part of the bargain and the department is a “loser” in two respects: (1) it lost a service provider that it was counting on in its delivery system and (2) the obvious monetary expenditure without a 100% return on investment.

    What does all of that say about the integrity of the firefighter who took advantage of the training–which obviously can’t be taken back by the department–and then didn’t keep his or her promise to stay and deliver the services they’d been trained to provide? That’s a burning question for me if I’m the chief in the department that would hire such an individual.

    • CurtVarone

      Bob

      After thinking about this problem for some time – having represented folks on both sides – I wonder if this could be better handled via mutual aid agreements/pacts – where the chiefs (big cities, medium size cities and small towns) all sit down, address the problem and agree to the cost sharing at the department level. Why put it on the shoulders of some kid who is just looking to feed his family.

      Secondly… and not directed at you personally… if folks are leaving your FD after you train them, perhaps you have a bigger problem that cannot be fixed simply by forcing new hires to sign oppressive agreements.

      Third… and you won’t like this one (and neither do I)… let’s apply your thinking (which i cannot fault) to EFO… Would it be ethical for a community to say… sure, we will let you go through EFO, but once you are done you owe us 5 more years or you have to repay the costs of your training (travel, backfill/salary, maybe even on-duty time spent working on an APR, etc.)… and BTW we do not promise to promote you during that 5 year period but we know that often folks complete EFO and then take a chief’s job somewhere else…

  • Dustin Swartz

    This is my question. Since he signed a contract and they are seeking payment. I would assume he should get paid for all of his time during class. They are using him if not. That would be like training recruits and not paying them.

  • mr618

    The same thing happens on the law enforcement side of the house too. When I was in the police academy (God, was it really 36 years ago?!?), I was working for the state Parks & Rec folks. A clasmate, who worked for the same agency, had no interest in the rec world, and said he took the job simply because none of the local police departments would hire uncertified personnel (and CT did not have an option to sponsor yourself, you had to work for a bona fide law enforcement agency). Two weeks before graduation, he submitted his resignation to P&R. They were furious, but there was nothing they could do about it, other than refuse to send a badge to be awarded at graduation.
    Perhaps Mr. Avsec can take some small measure of solice, knowing this has been going on for decades.

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