KCMO Facing Another EMS FLSA Suit

Kansas City, Missouri is facing another fire department related Fair Labor Standards Act lawsuit over the way it pays its EMS personnel. John Zimmerli and Matthew Dietrick filed the class action lawsuit last week claiming that despite losing two EMS related FLSA lawsuits in 2014 and 2015 that cost the city $3.5 million, it continues to miscalculate overtime for its EMS personnel.

The suit alleges the city is miscalculating overtime for single function EMS personnel, and is improperly categorizing dual function firefighter-EMS personnel as 207(k) exempt. The 207(k) exemption provides that personnel who meet the definition of an employee in fire protection services are not entitled to overtime compensation until they have worked 53 hours per week (or up to 212 hours in 28 days) as opposed to 40 hours per week for non-firefighters.

Count 1 of the 2-count suit focuses on the single function personnel, alleging the city reduced their rate of pay following the earlier suits. Zimmerli is the named Plaintiff for Court 1:

  • The FLSA requires each covered employer, such as the Defendant, to compensate all non-exempt employees straight time for all hours worked and overtime compensation, at a rate of not less than one-and-one-half the regular rate of pay, for work performed in excess of forty hours in a workweek.
  • Plaintiff and the putative members of the FLSA representative action are not exempt from the right to receive overtime pay under the FLSA and are not exempt from the requirement that their employer pay them overtime compensation under the FLSA.
  • In order to avoid paying overtime, Defendant developed an unlawful scheme to avoid overtime by artificially lowering Plaintiff and the collective class’s rate of pay.
  • Plaintiff, and the putative members of the FLSA representative action, are entitled to be paid overtime compensation for all overtime hours worked based on their actual regular rate of pay, not upon an artificial rate intended to circumvent the FLSA.
  • The foregoing conduct constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a).

Count 2 of the suit focuses on the dual function personnel, with Dietrick being the named Plaintiff:

  • Defendant attempted to invoke § 207(k) by providing dual training to these individuals in order to invoke the partial exemption from overtime. But in reality, the Fire Medics do not have a primary job duty of fire suppression and instead have a nonexempt primary duty.
  • Requiring Fire Medics to perform only occasional or sporadic firefighting shifts does not make the § 207(k) exemption available to Defendant.

The suit also accuses the city of paying personnel pursuant to § 207(k) while they are in the fire academy. It seeks class actions status for both sets of plaintiffs.

Here is a copy of the complaint: Zimmerli v Kansas CIty AMENDED

More on the story. Note that the news story mistakenly states the suit was filed in Jackson County Circuit Court. It was actually filed in US District Court for the Western District of Missouri.

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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