Firefighter Overtime Lawsuits: Fire Departments Improperly Classify Firefighters and Chiefs as “Exempt”

October 9, 2023 - Wage Theft


Firefighters across the nation have filed numerous firefighter overtime lawsuits under the FLSA, alleging that their overtime compensation has been mishandled by their employers. These lawsuits often revolve around several key issues:

Misclassification: Recently, the Department of Labor issued, for the first time, a “First Responder” regulation, found at 29 CFR 541.3. The regulation was meant to address overtime exemptions to first responders and make it clear they are entitled to overtime pay. The regulation states that previous exemptions “do not apply… firefighters….and similar employees, regardless of rank or pay level, who perform such work as preventing, controlling, or extinguishing fires of any time; rescuing fire, crime, or accident victims. Under the FLSA, firefighters are exempt from overtime requirements under certain circumstances.

The new firefighter overtime rules also state firefighters are not exempt “executives” because firefighter’ primary duty is not management of the enterprise (i.e. the firehouse or battalion). In other words, because firefighters’ work does not directly related to management or general business operations of the employer, firefighters aren’t “executives” and thus should get overtime.

Some firefighters (such as supervisors and battalion chiefs) claim they have been wrongly classified as exempt from FLSA overtime provisions, because they routinely engaged in firefighting activities. In fact, some Battalion chiefs are required to engage in fire fighting activities. They argue that their duties do not meet the criteria for exemption and that they should be eligible for overtime pay for hours worked beyond 40 in a week. In some instances, the fire department’s failure to pay overtime leads to reduced pension benefits, which are tied to the highest pay achieved. 

“Kelly Day” Disputes: Fire departments in certain jurisdictions follow a work schedule known as the “Kelly Day” system. Under this system, firefighters work a set number of shifts in a row followed by an extended period off. Some lawsuits center on how overtime pay is calculated during these extended shifts and whether they should be compensated at an enhanced rate.

Compensatory Time Off: Some fire departments offer compensatory time off (comp time) in lieu of overtime pay. Firefighters have raised concerns about the legality of this practice, particularly when it is offered as the default option without the employee’s consent.

Incorrect Calculation: Lawsuits have also emerged when firefighters claim that their employers have not correctly calculated their overtime rates or have failed to include all forms of compensation, such as bonuses or hazard pay, in the overtime calculation.

Recent Developments

Typically, FLSA lawsuits settle out of court. In the firefighter context, fire departments have not been successful at trial, given the clarity of the overtime provisions of the FLSA. Firefighter overtime lawsuits could be avoided if fire departments simply reviewed and understood guidance provided by the Department of Labor regarding firefighter pay. Courts have often considered factors such as the nature of firefighting work, local labor agreements, and the specific practices of individual fire departments.

If you are a firefighter or chief who has been forced to work off the clock, or been routinely denied overtime benefits, call or text Flynn Law Firm today.

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