Florida Deputy Chief Files FLSA Suit Seeking OT

A former deputy chief for a fire district in Florida has filed suit claiming he was improperly classified as an exempt executive and not paid overtime in accordance with the Fair Labor Standards Act. Brian C. Dubrasky filed suit against the Upper Captiva Fire Protection & Rescue Service District.

The suit was filed in US District Court for the Middle District of Florida on August 18, 2023.  Quoting from the complaint:

  • Plaintiff was formerly employed by Defendant as Firefighter, Lieutenant and then Deputy Chief of the District from 2014 until 2023.
  • Plaintiff’s primary job duties included: operations and fire ground tasks, medical and emergency medical operations, daily equipment maintenance and management, boat operations, wildlife rescue, emergency vehicle operations, scheduling, and training.
  • As such, at all times material hereto, Plaintiff was an FLSA non-exempt employee of Defendant. (29 C.F.R. Section 541.3(b)).
  • Defendant was required under the FLSA to pay Plaintiff one and one half (11⁄2) times his effective hourly rate for each hour worked over 53 hours in a workweek or 212 hours in 28 days.
  • Plaintiff routinely worked in excess of 53 hours in a workweek and/or 212 hours in 28 days.
  • Nevertheless, from the commencement of his employment through his separation in 2023, Defendant failed to pay Plaintiff for his accrued overtime hours at one and one half (1 1⁄2) times his regular hourly pay rate.

The one-count complaint alleges that the district violated the FLSA by not paying him overtime for hours over the statutory maximum. The complaint makes direct reference to 29 CFR § 541.3 (b), which is commonly referred to as the First Response Regulations. These regulations state:

  • (b)(1) The … [white collar employee] exemptions and the regulations in this part also do not apply to … fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; … or other similar work.
  • (b)(2) Such employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required under § 541.100. Thus, for example, a … fire fighter whose primary duty is to … fight fires is not exempt under section 13(a)(1) of the Act merely because the … fire fighter also directs the work of other employees in the conduct of … fighting a fire.

Here is a copy of the complaint:

Bill Maccarone has coverage of a similar suit filed by twenty-four Orlando district chiefs making the identical claims.

Our next online delivery of FLSA for Fire Departments is September 5, 7, 12 and 14, 2023. Our next live in-person delivery is in Georgetown, Texas on February 7-9, 2024.

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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