Burning Question on Retaliation and the FLSA

Posted by: Curt Varone April 11, 2019 0

Today’s burning question: My fire department has been miscalculating our overtime pay, so we filed suit under the Fair Labor Standards Act. The fire department responded by requiring a doctor’s note for all sick leave of two consecutive days or more. Isn’t that retaliation?

Answer: Retaliation is a question of fact, but if the fire department did in fact alter your working conditions as a result of your making an FLSA claim, the department could be facing additional damages for retaliation. Fire department have to be very careful to avoid retaliation claims after firefighters file an FLSA suit. Even good faith changes made after overtime claims are raised can result in a finding of retaliation. Attorneys LOVE to tack-on retaliation claims!!! So easy a cave-man attorney can win it!!!!

Firefighters in Martinsburg, West Virginia are claiming that the city is retaliating against them for filing an FLSA suit by imposing new restrictions against them on their use of sick leave. Firefighters filed suit last year claiming the city failed to include holiday pay when calculating their regular rate for overtime purposes. According to the firefighters’ amended complaint that was filed yesterday in Berkeley County Circuit Court:

  • After the plaintiffs filed their lawsuit to recover their wages, the Chief of the Martinsburg Fire Department unilaterally instituted a policy changing the procedure related to firefighters and calling off sick.
  • This policy requires a note from a medical professional if the firefighter takes two consecutive days of sick leave.
  • Upon information and belief, no other Martinsburg city employee is subject to the same scrutiny when using sick time.
  • The department never had a sick leave policy.
  • Plaintiff’s believe this is another attempt by the defendants to further “muddy the waters” in terms of wages and paid time off to make the leave policy for the firefighters virtually impossible to understand and decipher if, in fact, they are accorded use of their leave in line with applicable statutory requirements.

More on the story.

More retaliation examples, and more.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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