Texas Firefighter Backpay Must Be Calculated Week-By-Week

A Texas firefighter who was wrongfully suspended for over four years, and who made more than he would have made if he remained employed as a firefighter, has prevailed in an effort to get the fire department to compensate him for those weeks when he made less than what he would have made. The complicated case involves a firefighter for the City of Big Spring, Fabian Scott Butler.

Butler was suspended from May 1, 2015 to September 23, 2019. His suspension was later reduced to fourteen days. Because his total income during his suspension ended up being greater than what his total earnings would have been had he not been suspended, the city refused to offer him any backpay as a result of his improper suspension.

Butler sued claiming that despite the fact his total earnings were greater, he should have received compensation for those weeks when his compensation was less than what he would have received as a firefighter. The trial court agreed with the city finding that the total amount earned was what mattered. Butler appealed to the Eleventh District Court of Appeals of Texas, who reversed the trial court concluding that a week-by-week analysis is required.

Quoting from the Court of Appeals:

  • When the employee is restored to his former position or class, he is entitled to… full compensation for the actual time lost as a result of the suspension at the rate of pay provided for the position or class of service from which the person was suspended.
  • Appellant’s appeal to the Commission resulted in a reduced suspension period without pay of fourteen days, and he was retroactively reinstated to his employment, effective May 1, 2015. As a result, Appellant is entitled to the compensation and restoration of benefits as described.
  • The City argues that while Appellant was suspended, his total earnings for the four years combined exceeded his regular pay and that therefore the City now owes Appellant nothing in terms of lost compensation.
  • But the statute requires “full compensation for the actual time lost as a result of the suspension.”
  • Actual means “existing or occurring at the time.”
  • Instead of a lump sum calculation of wages during the entire period, the statute directs us to consider full compensation for the actual time lost, as it existed or occurred at the time the compensation should have been provided.
  • For example, a suspension of four years may include periods of reduced or no income at all before an employee is able to secure employment that either equals or exceeds the wages he earned from his prior employment. It may include multiple jobs of varying work, hours required, income, and skills implemented per pay period.
  • According to our interpretation of the statute, the compensation to be restored must be measured for the work done per pay period – “full compensation for the actual time lost.”
  • In ascertaining and giving effect to the legislature’s intent as expressed by the plain and common meaning of the statute’s words in a fair application to suspended employees generally, we interpret the term “for the actual time lost” to mean during the actual time period that wages were due and were lost. Any other interpretation can lead to absurd results.
  • To faithfully adhere to both the doctrine of mitigation and the language of the Texas statute, it is most appropriate to calculate an award of full compensation by a review of earnings and a loss of earnings per pay period.
  • Here, Appellant is entitled to an award of back pay… to be calculated per regular pay period.
  • In any pay period where the wages earned during suspension were less than what he would have earned in his position with the City, Appellant is entitled to the deficit.
  • There is no offset statutorily authorized from any other pay period.
  • We reverse the judgment of the trial court and remand the cause for further proceedings to calculate Appellant’s award of back pay in a manner consistent with this opinion.

Here is a copy of the decision:

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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