Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Seventeen California firefighters have filed suit alleging they were underpaid for overtime they worked because their department impermissibly excluded certain benefits from the rate of pay used to calculate their overtime compensation. The firefighters, members of the Borrego Springs Fire Protection District, filed the class action lawsuit yesterday in US District Court for the Southern District of California.
The suit alleges that the district failed to include “cash in lieu of health benefits, contributions made towards the purchase of health benefits, holiday in lieu compensation, paramedic certification pay, as well as other payments made pursuant to the applicable collective bargaining agreements.” Each of these items are required to included in an employee’s “regular rate”, for purposes of calculating overtime under the Fair Labor Standards Act.
As explained in the complaint:
- At all times relevant hereto, Defendant suffered or permitted Plaintiffs and other similarly situated individuals to work hours beyond statutory thresholds for overtime compensation required by the FLSA.
- At all times relevant hereto, Defendant impermissibly excluded certain remunerations or undervalued the “regular rate” of pay, upon which all forms of Plaintiffs’ overtime compensation are based.
- Pursuant to 29 U.S.C. section 207(e), the “regular rate” must include all remuneration received by an employee unless it is explicitly excluded. The burden is on an employer to demonstrate that a payment is excludable from the regular rate.
The complaint seeks damages “for unpaid overtime compensation, liquidated damages thereon, based on a three-year statute of limitations, and relief incident and subordinate thereto, including attorney fees and costs.”
Here is a copy of the complaint:
Regular rate violations are one of the most common types of FLSA violations alleged by firefighters. Out of 261 FLSA cases in my database, 103 (39%) include an allegation of a regular rate violation. In cases filed since 2006, the number is even higher: 82/186 or (44%). All remuneration that an employee receives must be included in the regular rate, unless subject to one of the exceptions listed in 29 USC §207(e) (1-8).
We thoroughly discuss regular rate and the §207(e) exceptions at our FLSA for Fire Departments programs.
Our next program will be conducted as a live webinar September 15-18, 2020 using our new EZ Four-Day Schedule. This program covers the exact same material we cover in our 3-day program.
The program will be delivered LIVE using Zoom Webinar. To accommodate time-zone issues, the EZ-Schedule will run for six (6) hours per day:
11:00am – 5:00pm Eastern
10:00am – 4:00pm Central
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8:00am-2:00pm Pacific
To ensure we cover the entire 24 hours of course material the webinar will run four (4) days, September 15-18, 2020. In addition, each evening we will hold an optional online Zoom meeting for attendees to address any questions that were not addressed during the webinar.
