Entire West Virginia Fire Department Sues City For FLSA Violations

All forty-four members of the Clarksburg Fire Department have filed suit claiming the city’s method of calculating their hourly rate, regular rate and overtime rate violates the FLSA. The firefighters claim that the city pays them a salary, but has been making a mistake when converting their salary to an hourly rate for purposes of calculating overtime.

According to the complaint, the city uses an unrealistic denominator (also called a divisor) when converting their salary to an hourly rate. More specifically, firefighters are scheduled to work an overage of 2,936 hours per year, but the city currently divides their annual salary and wage augments by 3,406 to arrive at their regular rate. They allege this “impermissably” reduces their overtime compensation.

Quoting from the complaint:

  • [Clarksburg]’s fire fighters are scheduled to work, on average, 2,936 hours in 2024. That is approximately 41% more scheduled hours than a typical full-time employee that works 40 hours per week.
  • Each fire fighter also receives certain line item pays for longevity with the Fire Department and for “special assignment pay.”
  • Longevity pay is a pay premium paid to fire fighters for their length of service with the Fire Department. Longevity pay is calculated from an annual pay supplement to the City’s employees.
  • “Special assignment pay” is similar to hazard pay for fire fighters as it is a pay premium designed to enhance fire fighter pay because of the hazardous and dangerous job they perform.
  • Both line items are based on a stated annual amount. That annual amount is then calculated by the City into an hourly wage and added to a fire fighter’s hourly rate.
  • The issue in this case is that the City has failed, for decades, to accurately calculate each Plaintiff’s hourly rate from the Plaintiff’s respective annual salary.
  • Since at least the 1950s, the City has calculated its fire fighters’ hourly pay based on 3,328 hours per year.
  • No one has been able to identify who determined that a fire fighter’s hourly pay is based on 3,328 hours per year, when that figure was calculated, or how exactly it was calculated.
  • For decades, the City calculated the Plaintiffs’ pay by dividing a fire fighter’s stated annual salary by 3,328 hours.
  • None of the Plaintiffs are scheduled to work 3,328 hours in a given year.
  • The Defendant’s use of 3,328 hours for calculating the Plaintiffs’ regular rate of pay impermissibly decreases the Plaintiffs’ actual regular rate of pay.
  • In late 2023 or early 2024, the City recalculated the number of hours it uses to calculate a fire fighter’s regular rate of hourly pay from a stated annual salary.
  • The City now calculates a fire fighter’s regular rate of hourly pay based on 3,406 hours instead of the prior 3,328 hour figure.
  • Again, none of the Plaintiffs are scheduled to work 3,406 hours in a given year.
  • It remains unclear who calculated the 3,406 figure, how it was calculated, or why the change was performed by the City.
  • The act of increasing the hypothetical number of hours that is used for calculating the fire fighter’s hourly pay from 3,328 to 3,406 worked to further decrease the Plaintiff’s regular rate of hourly pay.
  • The City’s erroneous use of either the 3,328 or 3,406 hour figure has led to a chronic miscalculation of the Plaintiffs’ regular rate of hourly pay and overtime pay rate.
  • The Defendant has knowingly, intentionally, and willfully failed to accurately calculate the Plaintiffs’ regular rate of pay from their stated annual salary.
  • The Defendant’s use of and reliance on an incorrect formula for decades, without justification, was done in a knowing, intentional, and willful manner.
  • Following the revelation by unknown City employees and administrators that its methodology was incorrect, the City attempted to obfuscate the calculation and increase the divisor in its calculation from 3,328 to 3,406.
  • The City increase to the divisor resulted in a further reduction and miscalculation of the Plaintiffs’ regular rate of pay and overtime pay.
  • The City’s actions in increasing the divisor was done in a knowing, intentional, and willful manner.

The suit alleges the city’s miscalculation of their regular rate results in them receiving less than 1.5 times their regular rate when working overtime. Curiously, even the fire chief is listed as a plaintiff in the suit. The complaint alleges the city’s conduct was intentional, allowing them to recover three years of damages as opposed to the normal two years. 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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