Pennsylvania Volunteer Fire Company Sued For FLSA Violation

Five employees of a volunteer fire department in Pennsylvania have filed suit claiming they were improperly classified as partially-exempt 7k firefighters and thus paid overtime after 212 hours in a 28-day work period instead of after 40 hours per week.

Dennis A. Szweda, Janelle Schmeck, David Ciabattoni, Reed A. Apostol and Donald Hirsch filed suit against the Exeter Township Volunteer Fire Department in US District Court for the Eastern District of Pennsylvania on October 27, 2017. The suit alleges that prior to January 1, 2017, the employees were treated as partially exempt 7k firefighters. Firefighters who qualify under 29 USC 207k are not entitled to overtime until they have worked 53 hours per week, or 212 hours in a 28 day work period.

The suit claims the department realized its mistake and began paying them overtime after 40 hours per week beginning January 1, 2017. However, it refused repeated requests to pay the firefighters back wages for the overtime they were wrongly denied.

At the center of the dispute is the fact that the Exeter Township Volunteer Fire Department is a private, non-profit corporation, and not a public agency. The 7k partial-exemption for firefighters only applies to public agencies, such as municipal fire departments and fire districts. Private, non-profit volunteer fire companies are ineligible even though they serve an analogous function to a municipal fire department.

The firefighters are seeking overtime compensation for all hours worked between 40 per week, and what they were paid for as 7k firefighters.The complaint includes two state law counts, a violation of the Pennsylvania Minimum Wage Act of 1968 and a violation of the Pennsylvania Wage Payment and Collection Law.

From the complaint:

  • The FLSA requires that covered employees be compensated at Overtime Rate for all hours worked in excess of forty (40) hours per week. See 29 U.S.C. § 207(a)(l).
  • Defendant is subject to the wage requirements of the FLSA because Defendant is an “employer” under 29 U.S.C. § 203(d).
  • During all relevant times, Defendant was and is an “employer” engaged in interstate commerce and/or in the production of goods for commerce within the meaning of the FLSA, 29 U.S.C. § 203.
  • During all relevant times, Plaintiffs were and are covered employees entitled to the above-described FLSA’s protections. See 29 U.S.C. § 203(e).
  • Plaintiffs are not exempt from the requirements of the FLSA.
  • Plaintiffs are entitled to be paid at Overtime Rate for all hours worked over forty (40) in a workweek pursuant to 29 U.S.C. § 207(a)(l).
  • Defendant also failed to make, keep, and preserve records with respect to Plaintiffs sufficient to determine their wages, hours, and other conditions of employment in violation of the FLSA.
  • Defendant failed to maintain payroll records containing the time of day and day of week on which Plaintiffs’ workweeks or work periods began.
  • Defendant failed to clearly communicate to Plaintiffs an established and regularly recurring work period of between 7 and 28 days, including starting and ending days and times for such work period.
  • In violating the FLSA, Defendant, acted willfully and with reckless disregard of clearly applicable FLSA provisions.
  • Pursuant to 29 U.S.C. § 216(b), employers such as Defendant, who fail to pay an employee wages in conformance with the FLSA shall be liable to the employee for unpaid wages, liquidated damages, court costs and attorneys’ fees incurred in recovering the unpaid wages.

Here is a copy of the complaint: SZWEDA v EXETER TOWNSHIP VFD

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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