California Firefighters File Overtime Suit Over Health Care Buy-Back

Today’s burning question: Does a fire department have to include payments made in lieu of accepting health benefits in a firefighter’s regular rate for purposes of calculating overtime?

Answer: Yes, and that is one of the central issues in a recently filed FLSA suit in California.

Fifteen firefighters with the Marinwood Community Services District have filed suit in US District Court in San Francisco claiming the district has been improperly calculating their overtime. The suit was filed as a class action on behalf of all similarly situated firefighters in the department.

The firefighters allege that payments they received in lieu of accepting health care benefits should have been included in their regular rate for overtime purposes. They also allege the district failed to include other payments in their regular rate, including college incentive pay, out of class pay, special assignment pay, EMT-FS pay, reimbursement for benefit costs, and holiday pay.

According to the complaint:

  • In Flores v. District of San Gabriel 824 F.3d 890 (2016), the Ninth Circuit Court of Appeals held that payments to employees in lieu of health benefits were not excludable from the “regular rate” of pay…
  • Defendant’s past and current practice of computing overtime has impermissibly reduced the amount being paid to Plaintiffs and similarly situated individuals by failing to compute all statutorily required amounts into the “regular rate” of pay as defined by 29 U.S.C. section 207(e).
  • Because the remunerations paid to Plaintiffs in lieu of health and welfare benefits and through the Health Insurance Plan were compensation for work and were not made pursuant to a bona fide benefit plan, they must be included in the “regular rate” of pay for determining overtime compensation as required by the FLSA.
  • In addition to the hourly wages for regularly-scheduled hours, the District also provides Plaintiffs with additional compensation including, but not limited to, call-back pay, college incentive pay, out of class pay, special assignment pay, EMT-FS pay, reimbursement for benefit costs, and holiday pay.
  • At all times material herein, the Defendant’s practices did not include all of the required additional compensation in the calculation of the “regular rate” of pay for Plaintiffs and similarly situated individuals for the purposes of determining overtime compensation as required by the FLSA.
  • The District has thus failed to appropriately calculate the applicable “regular rate” and to pay Plaintiffs and similarly situated individuals the required premium overtime rates for all hours of overtime they worked.

Here is a copy of the complaint: anderson-v-marinwood-csd-ca

We discuss regular rate, health care buy-backs and many other important overtime related issues at our FLSA for Fire Departments conferences.

Here is what we have for 2017.

Georgetown, Texas – Jan. 31-Feb 2, 2017

Miami, Florida – May 9-11, 2017

Hanover Park, Illinois – October 10-12, 2017


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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