FLSA, Executive Exemption, Threats and Retaliation

Today’s burning question: The line chiefs in my fire department (deputy and battalion chiefs assigned to shifts) have gotten together to file an FLSA claim. We feel we are improperly classified as being exempt executives when we should be hourly employees. The Fire Chief has publicly stated that if we are successful, he will change our titles to eliminate the word “Chief”. Can he do that?

Answer: You would think in this day and age that anyone who is bright enough to become a fire chief would recognize the risk of unlawfully retaliating against his/her employees. Your chief would appear to be one who did not get the memo.

Like most laws aimed at protecting employees, the Fair Labor Standards Act (FLSA) prohibits retaliation against employees who file an FLSA claim. Changing your title to one that is less prestigious if you prevail, would constitute unlawful retaliation. Threatening to change your title could also be retaliation. Threats can be an adverse employment action, particularly when calculated to have a chilling effect on employees who have made claims, not to mention the effect they may have on others who may be considering making similar claims.

I have to believe your chief has gone rogue on his/her attorney, because no attorney in their right mind would allow a client to do something as foolhardy as to make such a threat. Just making the threat can be a slam-dunk FLSA relatiation violation. Plaintiffs’ attorneys love retaliation claims because they are so much easier to prove than the underlying FLSA violation. Why is that a big deal?

The status of line chiefs as first responders (and thus subject to the First Responder Regulations 29 C.F.R § 541.3) is being litigated in many jurisdictions around the country. The next few years will be telling on whether line chiefs can be classified as exempt or hourly. If you win, the city will be liable for your damages, interest, costs and attorneys fees. If you lose, you will be liable for your own costs and attorneys fees.

By the chief making his/her threats of retaliation, you will now likely win on the retaliation claim EVEN IF YOU LOSE THE EXEMPT HOURLY CLAIM. That opens the door to the city having to pay your attorneys’ fees, costs and some damages that the city otherwise would not have been liable for. Threatening employees is just such a strategic (rookie) mistake.

Join us at one of our upcoming FLSA for Fire Departments conferences

January 15-17, 2019 – Atlanta, GA hosted by the Covington Fire Department Details/Register
September 17-19, 2019 – Denver, CO hosted by the Westminster Fire Department Details/Register
December 10-12, 2019 – Georgetown, TX hosted by the Georgetown Fire Department Details/Register

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.
x

Check Also

NY Fire Department Sued for Copyright Violation

A Long Island fire department is facing a rather unusual type of lawsuit for a fire department: it stands accused of violating the Copyright Act of 1976. William P. Kelly, Jr. is suing the Oceanside Fire Department alleging ten of his photographs were used in a book about the department without his permission.

Mount Vernon Firefighter Alleges Retaliation and Race Discrimination

A Mount Vernon firefighter who served briefly as deputy fire commissioner has filed suit against the city, the mayor, a captain and a chief accusing them of harassment, race discrimination, retaliation and whistleblower violations. Ernest Richardson filed suit against the City of Mount Vernon, the Mount Vernon Fire Department, Mayor Richard Thomas, Ops Chief al Farid Salahuddin and Captain Michael St. John.