A court appointed arbitrator has ruled that a Washington state fire department cannot recoup the costs of paramedic training from a firefighter who took a position with a new fire department beyond withholding his final paycheck. The suit was brought by San Juan Fire Protection District No. 2, dba Orcas Island Fire Rescue who sought $29,167.32 from firefighter-medic Alex Conrad.
Conard completed medic training in 2020 while employed by Orcas Island Fire Rescue. In 2022 he left OIFR to join the Bainbridge Fire Department. OIFR sought to recoup the costs of putting Conrad through the medic program as provided in the collective bargaining agreement with IAFF Local 3911. The CBA provides as follows:
- Paramedics that leave employment with Orcas Island Fire & Rescue prior to five (5) years of service as a Paramedic, shall reimburse Orcas Island Fire & Rescue all costs, (including tuition not covered by the Medic One Foundation, housing, wages paid attending school), incurred by the District towards their original paramedic training. Reimbursement will be calculated at a rate of 20% per year of uncompleted paramedic service time. Reimbursement shall be made from the employee’s final paycheck and/or severance pay.
- The employee shall be forgiven any outstanding reimbursement if the employee has been laid-off by the district or if the employee receives an on-the-job injury leading to disability.
OIFR withheld Conrad’s entire final pay and severance check, and sought an additional $68,243.45, according to the Orcasonian. When that payment was not forthcoming, suit was filed alleging breach of contract, unjust enrichment, and promissory estoppel, with the demand reduced to $29,167.32. That suit was filed in January, 2023 in King County Superior Court.
The case was referred to arbitration, and while a copy of the arbitrator’s reasoning is not available, the Orcasonian is reporting that the arbitrator concluded that the clear language of the CBA limits the fire department’s recovery to “the employee’s final paycheck and/or severance pay.”
Here is the arbitrator’s submission to the court.
Here is a copy of the complaint.
Interestingly, there is an FLSA connection to cost recovery provisions that many fire departments have adopted. Take a look:
29 CFR § 531.35 – “Free and clear” payment; “kickbacks.”
Whether in cash or in facilities, “wages” cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or “free and clear.” The wage requirements of the Act will not be met where the employee “kicks-back” directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee. This is true whether the “kick-back” is made in cash or in other than cash. For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act. See also in this connection, § 531.32(c).
The ”free and clear” requirement is intended to prevent unscrupulous employers from creating modern-day indentured servants. We will be discussing this issue and more in Georgetown, Texas on February 7-9, 2024 in our FLSA for Fire Departments program.