FDNY Fire Inspectors File FLSA Overtime Suit

Twenty-six fire inspectors for FDNY have filed suit in federal court claiming the city failed to pay them overtime compensation in accordance with the Fair Labor Standards Act. The inspectors claim they routinely work in excess of their regularly-scheduled forty hours per week, are not compensated for those extra hours unless they are pre-approved, and when they are compensated their overtime rate is miscalculated.

The complaint also alleges that inspectors are not compensated for work they perform during unpaid meal breaks. Quoting from the complaint:

  • Plaintiffs and all others similarly situated routinely work over 40 hours a week.
  • Specifically, each week they are regularly scheduled to work, an do work, five shifts of eight and one-half hours, inclusive of an uncompensated 30-minute lunch break.
  • The Fire Inspectors’ regularly scheduled shifts are generally 8:00 am to 4:30 pm.
  • However, as described herein, because the City does not pay Plaintiffs for any time worked in excess of these scheduled shifts unless the work is preapproved in advance, the City regularly fails to compensate Plaintiffs for all hours worked over 40 in a workweek at a rate of one and one-half times their regular rate of pay.
  • In addition to their scheduled shifts and their preapproved, compensated overtime, because of the Defendants’ uniform workplace policies and practices, Plaintiffs and all those similarly situated routinely work in excess of their regularly scheduled shifts, such that they necessarily work over 40 hours in a workweek.
  • However, Defendants fail to compensate Plaintiffs and all others similarly situated for all of these hours over 40 in a workweek at a rate of one and one-half times their regular rates of pay.
  • Specifically, Defendants fail to compensate Plaintiffs and all others similarly situated for hours worked before and/or after their scheduled shifts and for work performed during their unpaid, 30-minute meal periods.
  • Additionally, while working as Fire Inspectors, Plaintiffs and all others similarly situated are occasionally compensated for hours worked over 40 in a workweek if the overtime hours were preapproved.
  • However, when the Defendants compensate Plaintiffs for overtime hours which were preapproved, Defendants systematically fail to pay them for this overtime work at the correct regular rate of pay, as they fail to include certain differentials in the rate at which overtime is paid and regularly pay Plaintiffs weeks beyond the regular payday for the date(s) on which the overtime was worked.
  • While working as Fire Inspectors during the last three years, Plaintiffs and all others similarly situated have received certain payments in addition to their basic pay.
  • These payments include, but are not limited to, night shift differentials and other recurring pay differentials.
  • These payments are made pursuant to Agency-wide policy and/or collective bargaining agreements, and thus they are paid to Plaintiffs and all others similarly situated.
  • However, on occasions when Plaintiffs and those similarly situated are paid overtime compensation for pre-approved overtime work, Defendants wrongly fail to include these additional differential payments in the regular rate of pay used to calculate the overtime rate payable to Plaintiffs and those similarly situated.
  • The failure to include these premium payments in Plaintiffs’ regular rate of pay means that when Plaintiffs receive paid overtime for working in excess of 40 hours in a week, they are paid at a rate for those overtime hours that is below the rate mandated by the FLSA.

The complaint alleges that the city’s payroll program, called “CityTime”, utilizes a “pay-to-schedule” system as opposed to a “pay-to-punch” system, and that previous suits have found the city to be in wilful violation of the FLSA. The relevance of an FLSA violation being found to be wilful is that an award of backpay is extended to three years, as opposed to the normal two years. The complaint also states that city officials have admitted under oath in previous cases that the city is aware that it is obligated to compensate employees for hours worked even when the time is not pre-approved.

Here is a copy of the complaint:

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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