Charleston Firefighters’ FLSA Suit Continues

A ruling by the US District Court in South Carolina is permitting a Fair Labor Standards Act suit against the City of Charleston to proceed. The suit filed in 2013 by six Charleston firefighters alleges that the city’s application of the “fluctuating workweek” concept violates the FLSA in a number of ways, including the failure to properly compensate them for overtime and in certain cases paying them less than the federal minimum wage.

The ruling issued yesterday denies the city’s motion for summary judgment. In rendering the decision, Judge Patrick Michael Duffy does an excellent job explaining the complicated law related to the “fluctuating workweek” method, abbreviated as FWW.

  • The FLSA “generally requires employers to compensate employees at the overtime rate for all work performed over 40 hours per week.”
  • The general rule is that an employer must pay employees overtime using the “time-and-a-half method” for work performed in excess of forty hours per week.
  • However, Section 7(k) of the FLSA “provides a partial exemption for those public agencies employing persons ‘engaged in fire protection or law enforcement activities,’ by increasing the number of hours such employees must work above the regular 40-hour workweek before they are entitled to overtime compensation.”
  • pursuant to 29 U.S.C. § 207(k) and the schedule outlined in the applicable implementing regulation, a public employer’s duty to compensate firefighters at the requisite overtime rate is not triggered until the employee has worked fifty-three hours in a given workweek.
  • The FWW method is derived from the Supreme Court’s decision in Overnight Motor Transportation Co. v. Missel, 316 U.S. 572 (1942), decided four years after the passage of the FLSA.
  • In Missel, the Court addressed how to calculate overtime compensation under 29 U.S.C. § 216(b) for employees who are paid a fixed weekly salary for all hours worked but who work irregular, fluctuating, or variable hours.
  • The Court concluded that for such employees, employers could calculate the employee’s regular rate under the FLSA by dividing the employee’s fixed weekly salary by the actual number of hours worked during that workweek.
  • In outlining what is now known as the FWW method, the Court noted that because the FLSA requires that an employee’s remuneration “be reduced by some method of computation to hourly rates,” … where an employee’s hours fluctuate from week to week, the employee’s regular rate will also vary each week,
  • “[T]he lasting significance of the [Missel] decision is its approval under the FLSA of paying an employee a flat weekly salary for fluctuating hours so long as a premium is also paid of at least ‘fifty per cent additional for the hours actually worked over the statutory maximum.’”
  • As set forth in § 778.114, the FWW method authorizes an employer to pay an employee a preset, predetermined weekly salary “as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many,” provided both that the fixed salary is sufficient to compensate the employee for hours worked “at a rate not less than the applicable minimum wage” and that the employer pays the employee overtime compensation “at a rate not less than one-half of his regular rate of pay.”
  • Section 778.114 expressly states that the employee’s regular rate “will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week.”
  • According to the rule, paying the employee half or 50% of the regular rate for all hours worked in excess of the applicable statutory maximum, as opposed to 150% under the time-and-a-half method, “satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.”
  • Although this amounts to a departure from the standard time-and-a-half overtime premium, the Fourth Circuit has made clear that the FWW method is not an “exception” to the FLSA; instead, it merely represents “an alternative way for employers to calculate the regular rate of pay for certain salaried employees.”
  • In 1998, as a part of and in conjunction with the settlement of the Prior Lawsuit, the City adopted a new pay plan using the FWW method (“1998 Pay Plan”) as set forth in 29 C.F.R. § 778.114.
  • On June 18, 2007, the City, its citizens, and the Department suffered an unspeakable loss when nine firefighters lost their lives in a structure fire.
  • In the wake of this tragedy, the City’s mayor, Joseph P. Riley, Jr., commissioned a panel to review various Department practices and policies and to offer suggestions regarding possible ways to improve the Department’s operations.
  • The resulting report proposed… increasing the number of shifts, the number of firefighters on certain shifts, or both; however, in order to implement such policies, the Department needed to significantly expand its workforce. Yet, the Department had just lost nine of its firefighters to the fire, as well as a number of others due to injuries and resulting issues such as post-traumatic stress disorder.
  • Given the delay associated with recruiting and training entry-level employees, the policy changes necessarily meant that existing firefighters would be required to work an unanticipated number of extra shifts in the interim.
  • Therefore, to incentivize firefighters to assume the additional workload, the City added the [incentive pay] IP provision to its 1998 Pay Plan.

The firefighters claimed, among other things, that the city’s version of the FWW violated the FLSA. The city asked the court to rule as a matter of law that it was entitled to prevail on the grounds that it acted in good faith in reliance on Department of Labor interpretations of the law, and that no willful violations occurred within the previous three years.

The court rejected the city’s argument

  • As an initial matter, the Court is not persuaded by the City’s argument that it actually relied upon the DOL’s 2008 Notice.
  • the Court concludes that at this time the City has not carried its “heavy burden” of demonstrating, as a matter of law, that it is entitled to the “complete defense” to liability afforded by § 259(a).
  • the City argues, in the alternative, that the entry of partial summary judgment in its favor is warranted on the issues of liquidated damages and the applicable statute of limitations. However, because the City’s liability is still an open question, the Court declines to reach and decide the City’s alternative arguments related to its § 260 affirmative defense and the three-year statute of limitations
  • Accordingly, the Court concludes that resolution of the City’s alternative arguments at this juncture would be premature.

Here is a copy of the ruling: Charleston DE167-Order Denying Defendant’s MSJ

Here is a copy of the original complaint that details the firefighters’ argument: Charleston SC

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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