SC Firefighters Sue for Overtime After 40 Hours Per Week

Four former firefighters from the City of York, South Carolina are suing for $1.3 million in unpaid overtime under a rather novel theory. The men filed separate suits on March 22nd, 2017 in York County Court of Common Pleas claiming they are entitled to overtime for all hours worked over 40 each week based on the city’s personnel manual.

To understand just what the firefighters are alleging, a little review is in order. Most overtime suits allege violations of the Fair Labor Standards Act (FLSA) and are filed in federal court. Under the FLSA most employees are entitled to overtime after working 40 hours in a week.

The FLSA gives public sector fire departments an exemption that extends the maximum hours that must be worked by firefighters before overtime is required from 40 per week to 53. It also allows fire departments to adopt work periods between 7 days and 28 days. This exemption is often referred to as the 207k (or 7k) partial exemption. The FLSA does not require a fire department to adopt the 7k exemption. Rather, a fire department can choose to pay its firefighters overtime after 40 hours per week.

In the York case, the firefighters are suing under state law claiming they are entitled to overtime pursuant to the City of York’s “Personnel Policy Manual”. The manual states:

All non-exempt employees, except police officers, are compensated for overtime at time-and-one-half for all hours worked over forty (40) in a seven (7) calendar day work week. Overtime worked in the same week that leave of any kind is taken will be paid at straight time.

The policy does not contain an exception for firefighters, who worked a 24-48 schedule (24 hours on, 48 hours off). Under that schedule, firefighters are assigned to work either 48 or 72 hours per week.

The four firefighters, William Adkins, James Jordan Austin, Derrick Barrentine, and Christopher Rose, each filed separate lawsuits under South Carolina’s Wage Payment Law, claiming the city improperly calculated their wages by only paying overtime after 53 hours. The Wage Payment Law allows treble (triple) damages, plus interest, costs and attorney’s fees. The FLSA only allows for double damages, interest, costs, and attorney’s fees.

Here are copies of the four complaints:

Complaint Adkins

Complaint Austin

Complaint Barrentine

Complaint Rose

A big thank you to Bill Maccarone for assisting with this one!

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.
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