Court Rules For City in Reading Overtime Suit

A lawsuit filed by a retired Pennsylvania deputy chief seeking compensation for overtime hours, has resulted in a judgment in favor of the city. Gary Mogel claimed the City of Reading improperly classified him as an exempt “white-collar” executive.

Chief Mogel contended that as a shift commander in the Reading Fire Department, he qualified as a first responder. Under US Department of Labor regulations, being a first responder made him an hourly employee entitled to overtime. During his final three years with Reading, Chief Mogel maintained records of the extra hours he worked. Shortly after retiring, he filed suit in US District Court for the Eastern District of Pennsylvania seeking compensation for those extra hours. Here is more coverage on the filing of the suit from Bill Maccarone’s FirefighterOvertime.org.

The city countered that Chief Mogel was properly classified as an exempt executive, but argued in the alternative that even if he was not an exempt employee, he never worked more than the statutory maximum as prescribed by 29 USC §207k of the Fair Labor Standards Act. That alternative defense ended up being what carried the city to victory in the case.

As explained in the ruling:

  • In most cases, the FLSA requires employers to pay their employees overtime compensation when those employees work more than forty hours per week.
  • But the FLSA provides a partial exemption to the forty-hour workweek for “public agency” employers whose employees work in “fire protection activities.” 29 U.S.C. § 207(k).
  • Under the partial exemption, a public agency employer must pay a firefighter overtime only if the firefighter works more than sixty-one hours in an eight-day work period.
  • Defendant has met its burden to prove that the partial exemption under 29 U.S.C. § 207(k) applies in this case.
  • Because Defendant has met its burden to prove that the partial exemption under § 207(k) applies and that it established an eight-day workweek, Plaintiff bears the burden of proving he worked more than sixty-one hours in an eight-day work period.
  • But Plaintiff has not carried this burden.
  • Plaintiff was scheduled to work forty-eight hours every eight-day work period. Plaintiff has provided two sources of evidence indicating that he worked additional irregular hours beyond his forty-eight regularly scheduled hours.
  • The first source of evidence is a time log Plaintiff maintained throughout his tenure as First Deputy.
  • In that time log, Plaintiff made a dated entry for each time he worked outside of his regular shifts.
  • Plaintiff recorded his time down to the quarter hour.
  • The second source of evidence is Plaintiff’s testimony that he also occasionally spent additional time “setting up shifts” that he did not record in his time log.
  • Plaintiff testified that he spent no more than one hour setting up shifts per workday.
  • Because Plaintiff worked only four of the eight days in a work period, he could not have spent more than four hours setting up shifts in any given work period.
  • The most hours Plaintiff recorded in his time log for any eight-day period following September 11, 2017, was seven and a half hours for activities performed between January 22, 2018, and January 29, 2018.
  • The Court assumes that these activities fell into the same work period so that all seven and a half hours can be credited toward a single work period.
  • Accordingly, even in the work period for which Plaintiff logged the most irregular hours, and even after bolstering those hours with every possible inference in Plaintiff’s favor, Plaintiff still could not have worked more than sixty-one hours.
  • Because Plaintiff has not met his burden to show that he worked beyond the maximum hours permitted under 29 U.S.C. § 207(k) in any given work period, Plaintiff’s claim under the FLSA must fail.

The court found it unnecessary to decide the issue of whether shift commanders are fire responders. Here is a copy of the decision.

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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