COVID Pay Prompts DC FLSA Overtime Suit

A District of Columbia firefighter has filed a class action lawsuit alleging the city failed to include COVID premium pay when calculating firefighters’ overtime, as required by the Fair Labor Standards Act. Jason Collins filed suit today in US District Court for the District of Columbia on behalf of himself and all similarly situated DC firefighters.

According to the complaint, Mayor Muriel Bowser authorized the additional COVID-related pay on April 14, 2020, and made it retroactive to March 16, 2020. It was made payable to District employees “who were physically required to report to work” during the pandemic and afforded them an additional $14 a day up to maximum of $140 per pay period. Quoting from the complaint:

  • During the time period from March 16, 2020 to July 25, 2021, Plaintiff and those similarly situated have physically reported to work and were eligible for and did receive the premium pay authorized by the Mayor.
  • Consistent with Section 7(k) of the Fair Labor Standards Act, and as set forth in the collective bargaining unit between the District of Columbia and the International Association of Firefighters Local 36, AFL-CIO, MWC, Plaintiff Collins and those similarly situated are entitled to overtime pay equal to one and one-half times their regular rate of pay.
  • The Fair Labor Standards Act and its implementing regulations require that the regular rate of pay include all forms of renumeration including “such extra premiums as night shift differentials… and premiums paid for hazardous, arduous, or dirty work.” 29 C.F.R. §778.207(b).
  • As a result of Defendant’s violations of the Fair Labor Standards Act, Defendant is liable to Plaintiff and those similarly situated for unpaid wages, liquidated damages, reasonable attorney’s fees and expenses, interest, court costs, and any other relief deemed appropriate by the Court.
  • Section 207(a) and (k) of the FLSA, as well as its implementing regulations, require that an employer include all forms of renumeration when calculating the rate at which overtime is paid, including “premiums paid for hazardous, arduous, or dirty work.” 29 C.F.R. § 778.207(b).
  • The District of Columbia failed to include the hazard premium into the regular rate of pay for Plaintiff and all others similarly situated when calculating overtime rates.
  • The failure to include this renumeration in overtime computations violates Section 7(a) and 7(k) of the FLSA, because Defendant’s employees are working overtime without being paid the statutorily required rates. 29 U.S.C § 207(a) and 29 U.S.C. § 207(k).
  • Defendant’s violations of the FLSA were willful, intentional, and in bad faith.
  • Plaintiff and all others similarly situated are entitled to backpay as well as liquidated damages in an amount equal to their back pay.
  • As a result of Defendant’s violations of FLSA, Plaintiff and all others similarly situated are owed overtime wages at a rate to be calculated by taking the difference between the overtime they should have received during the relevant time period and the overtime they did receive during the time period calculated using the incorrect regular rate.
  • Plaintiff and all others similarly situated are entitled to back pay and liquidated damages in an amount equal to their back pay, as well as reasonable attorney’s fees, costs and other relief as appropriate under the statute. 29 U.S.C. § 216(b).

Here is a copy of the complaint:

We cover this very issue in several of our FLSA programs, including FLSA for Fire Departments and Advanced FLSA: Regular Rate.

For fire departments who may be in a similar situation to DC, please consider attending our November 23, 2021 program: Advanced FLSA:  I Think We Screwed Up, What Do We Do Now?

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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