More FLSA Overtime Suits Out of West Virginia

Fifty-six firefighters with the Morgantown Fire Department have filed two suits claiming the city has not been paying them properly for overtime. One suit was filed in US District Court for the District of West Virginia and the other in Monongalia Circuit Court.

A copy of the state law suit is not available, but the federal lawsuit alleges violations of the Fair Labor Standards Act related to the calculation of the firefighters’ regular rate. The allegations are rather concerning, assuming the plaintiffs can prove them to be true. Quoting from the complaint:

  • According to the City’s Handbook, the City has established a work period that begins on Saturday morning at 12:00 a.m. and ends at 11:59 p.m. on Friday.
  • The City’s policy on paying overtime compensation is as follows: Nonexempt employees will be paid overtime compensation in accordance with federal and applicable state law at a rate of 1.5 times their regular rate of pay for all hours actually worked over the threshold established for a standard pay period, usually 40 hours in any workweek. Thresholds for overtime other than 40 hours in a workweek, if any, will be provided in the Pay Plan or by a policy or policies adopted by the City Manager. Overtime pay is based on hours actually worked. For example, hours attributable to paid or unpaid leave are not included in calculating hours of overtime.
  • The City pays its fire fighters overtime compensation for hours worked in excess of forty (40) hours in a work period.
  • The City pays the fire fighters overtime pay at one and one-half times the fire fighter’s regular rate of pay as overtime compensation.
  • The City, however, has incorrectly calculated the Plaintiffs’ regular rate of pay.
  • Likewise, the Plaintiffs’ overtime rate of pay is also incorrect.
  • There is no stated policy or mathematical calculation for how the City calculates a fire fighter’s regular rate of hourly pay from the stated annual salary.
  • In a separate civil action, the Assistant City Manager, Emily Muzzarelli testified under oath on March 25, 2024 of the above calculation:
    • A: So when we look at how to essentially calculate what their hourly rate of pay is, 2,912 hours is the number of hours they are scheduled to work in a year. The first 40 hours of every week is going to be a straight time rate of pay, which is 2,080 of those 2,912. So if you take 2,912 minus 2,080, I think you get like 832, give or take. I’m doing this in my head. So under the current system, we also know that any type of leave that we’ve accounted for is also at straight time, which may not have been the practice of what was done before. So from that 892, we’ve also subtracted off 240. I think that leaves us with about 592 hours that would potentially be earned at an overtime rate. So we’ve taken that 592 and multiplied that by 1.5, which is the overtime rate of pay — the standard overtime rate of pay, and gotten an equivalent number of hours. So I’ve done pretty good in math in my head so far. …
    • We take those and add it to the other numbers and get an equivalent number of hours essentially paid or worked in a year as 3,208. So instead of dividing an annual or kind of — I don’t want to call it a goal number, but the comparable annual salary, instead of doing it by 2,912, it divides it by 3,208. Under the previous way in which certain types of leave could get counted towards an employee’s overtime, that used to divide by 3,328.
  • This is the first time that any Morgantown official explained the method of fire fighter hourly pay calculation.
  • This calculation is neither in any employment agreement with any Plaintiff nor is it in any written policy or the City’s Handbook.
  • None of the Plaintiff Firefighters are scheduled to work 3,208 hours.
  • Additionally, Assistant City Manager Muzzarelli admits in the last line of the above testimony the City was using an even higher number of hours to divide the stated salary by. This result in an even lower straight hourly rate for the fire fighters.
  • Furthermore, the Plaintiff have not and do not agree to the City’s calculation of the Plaintiffs’ regular rate of pay.
  • The City’s miscalculation of a fire fighter’s regular rate of pay has resulted in the Plaintiffs being underpaid.
  • The City’s miscalculation of a fire fighter’s regular rate of pay has resulted in the Plaintiffs not being paid overtime compensation correctly.
  • The City’s calculation of a fire fighter’s regular rate of hourly pay, when derived from a stated annual salary, is inconsistent with West Virginia law and Federal law.

The suit alleges a willful violation of FLSA and seeks liquidated damages, costs and attorneys fees. By the way, the attorney handling the Morgantown case, Teresa C. Toriseva, is also handling the suits we discussed last week from Clarksburg.

The next delivery of FLSA for Fire Departments is in Mesa, Arizona October 1-3, 2024.

We also have 3 upcoming webinars:

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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