California Firefighters File FLSA Suit Over Regular Rate Calculation

Posted by: Curt Varone December 18, 2016 1 Comment

Twenty-two San Luis Obispo firefighters have filed suit against the city alleging that they are being shortchanged on the rate they are paid for overtime. The suit filed November 30, 2016 in US District Court for the Central District of California asserts that the city failed to include “all remuneration” when calculating their “regular rate.”

Under the Fair Labor Standards Act (FLSA), overtime is calculated by multiplying an employee’s regular rate by 1.5. When calculating an employee’s regular rate, the employer must include “all remuneration,” not just the employee’s hourly wages. Regular rate mistakes are one of the most common reasons why fire departments are being sued under the FLSA.

In the San Luis Obispo case, the firefighters assert that the city gave them payments in lieu of benefits under a cafeteria benefits plan, and that these payments were not factored into each firefighter’s regular rate.

According to the complaint:

  • The City’s actions were knowing and deliberate because in 2003, the City had a dispute over this issue with another union who had a similar cafeteria benefits plan.
  • By virtue of that dispute, the City was presented with an opinion of the Department of Labor that clearly set forth the City’s obligation to include cash payments in lieu of benefits in calculating “regular rates;” but despite that advanced knowledge of its statutory obligation, the City failed and/or refused to take any action to ensure it accurately paid Plaintiffs.

The firefighters seek three years of double damages, plus interests, costs and attorneys fees. They are also seeking an injunction to prohibit future violations and for the city to conduct a complete accounting.

Here is a copy of the complaint: baskin-v-san-luis-obispo

We discuss the proper calculation of regular rate in our upcoming FLSA for Fire Departments classes. Our 2017 lineup includes Georgetown, Texas – Jan. 31-Feb 2, Miami, Florida – May 9-11, and Hanover Park, Illinois – Oct 10-12.

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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