The Fair Labor Standards Act has proven its muscle in cases involving the fire service.
LAWS & LEGISLATION
IN 1985 THE U.S. SupremeCourt decision Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) made the Fair Labor Standards Act and its minimum wage and overtime provisions expressly applicable to state and municipal employees— including career firefighters. Congress passed amendments to ease the decision’s financial impact on state and local governments and delayed the act’s effective date until April 15, 1986. One amendment that has had a great impact on firefighters is Section 7 (29 U.S.C. s.207), which determines overtime compensation. Section 7 recognizes the unique work schedules of firefighters and establishes this standard: Overtime pay or compensatory time off must be given for any hours worked above 212 in a 28-day work period (any time exceeding a 53-hour work week).
FIREFIGHTERS WIN IN COURT
Some municipalities reacted to Garcia by altering the pay schedules of their employees to offset the act’s financial impact. However, an important amendment included in Section 8 of the FLSA (29 U.S.C. s.208) prohibits governments from discriminating against employees entitled to new benefits under these new amendments. Thus in Blanton v. City of Murfreesboro, 856 F.2d 731 (CA6, 1988), the federal court of appeals determined that lowering the base wage rates of firefighters constituted illegal discrimination.
After the Garcia decision, Murfreesboro, Tennessee adopted resolutions excluding meal and sleep time as compensable hours for its firefighters. Sleep time was later restored, but three hours per day continued to be excluded for meals. The idea was to keep the number of hours worked below that which triggered the automatic overtime provisions of Section 7 of the FLSA. After firefighters objected, Murfreesboro then lowered the base hourly wage rate of the firefighters to save the city money if it had to compensate for overtime.
The firefighters brought suit, alleging that the unilateral downward adjustment was discriminatory and was in retaliation for the firefighters’ assertion of their right to overtime compensation. The District Court of the Middle District of Tennessee ruled in favor of the firefighters, and the court of appeals affirmed the ruling. In rejecting the city’s argument that the adjustment was made not in retaliation but out of fiscal concern for the budget, the court stated: “Public employers may not take such steps, however, solely and directly in response to the extension of the act’s coverage. In the case at hand, however, that is precisely what the city of Murfreesboro did when confronted with the requirement of extending the act’s coverage to its employees. Actions by public employers to reduce employee pay and benefits, taken as the sole and direct result of fiscal pressures created by the mandated extension of Fair Labor Standards Act benefits, run afoul of the structures of Section 8. A contrary result would allow public employers to deny permanently the ‘premium compensation’ that the Garcia decision and congressional action intended public employees to receive.”
Similar discrimination was also found in Alexander v. City of Plainview, 694 F.Supp. 221 (N.D. Tex, 1988). PlainView, Texas passed an ordinance lowering the base hourly rates of its firefighters after the Garcia ruling but before congressional enactment of the FLSA amendments. The District Court of the Northern District of Texas concluded that the FLSA amendments prohibited discrimination retroactive to the date of the Garcia decision:
“Further, the defendant’s act of unilaterally reducing the hourly rate of pay is discrimination motivated by an attempt to avoid protections of federal law granted to the firefighters. A unilateral reduction of regular pay intended to nullify the FLSA amendments is unlawful. In the case at bar, the defendant unilaterally reduced the wage rates to offset the paying of overtime after the assertion of coverage. Thus discrimination exists within the meaning of Section 8 of the FLSA amendments.”
The court found discrimination not only against those employees who were working at the time of Garcia but also against employees hired after the passage of the payroll reduction ordinance. Because the ordinance was discriminatory, the court held that all affected firefighters, regardless of their hiring date, could recover damages for unlawful discrimination under Section 8 of the FLSA amendments.
LAFF Local 349 v. Rome, Georgia, 682 F. Supp. 522 (N.D. Ga., 1988) raised the question of whether sleep time could be excluded from the hours worked when computing overtime pay. The firefighters’ local filed suit after the city adjusted the work schedules to exclude sleep time from hours worked without their consent.
The U.S. Department of Labor established regulations to determine what time is considered part of firefighters’ “tour of duty.” Compensable hours are all those spent at the workplace, including all job-related preshift and postshift activities.
Sleep time is also compensable, since firefighters are “engaged to wait,” but the regulations do provide for exclusion where the tour of duty is exactly 24 hours or less, or where it is more than 24 hours and there is an expressed or implied agreement between the employer and employees to exclude such sleep time [29 C.F.R. s.553222 (1987)].
After Garcia but prior to the enactment of the FLSA amendments, the city of Rome changed the work schedule, making tours of duty 24 hours and 15 minutes on duty and 47 hours and 45 minutes off duty. Eight hours of sleep time were deducted from the tour for computing hours worked. The firefighters argued that this schedule change was a subterfuge to avoid the overtime provisions, and the court agreed: “In determining whether the extension of the tour of duty was a genuine schedule change or was merely a device to evade the requirements of the act, the court considers important three factors: (1) the reason for the change, (2) whether the extension in the tour of duty was compensated, and (3) whether the firefighters agreed to the schedule change.” The court then found that the change was made without any additional compensation, and that there was no expressed agreement to make the voluntary practice of “early relief’ mandatory. Nor could any implied agreement be found, since firefighters demonstrated widespread opposition to the plan. The case was eventually settled out of court to the satisfaction of all parties.
Mahaney v. City of Smyrna contested nearly identical issues in the same federal court in Georgia. Unlike the case previously cited, it did go to jury trial. The jury found as a matter of fact that the change in shift schedules was not an implied agreement between the City of Smyrna and its firefighters, even though the fire chief required all firefighters to sign a copy of the memorandum that implemented the change. Futhermore, the jury found that transferring plaintiff Lieutenant Thomas Mahaney from fire suppression to fire prevention and conducting a supplemental performance evaluation against a second plaintiff both constituted unlawful retaliation by the City of Smyrna, which the Fair labor Standards Act prohibits.
After the jury verdict, the city and the firefighters reached a settlement on the issue of damages. The city agreed to entry of a court injunction prohibiting the deduction of sleep and meal time to calculate overtime pay. Mahaney was transferred back to his prior position in the fire suppression division. The total monetary award to the firefighters consisted of unpaid overtime, unpaid early relief time, and liquidated damages for unlawful retaliation. Finally, the city paid the firefighters’ attorney’s fees.
AN EXPENSIVE LESSON
These cases show that exceptions to coverage that relieve municipalities of the overtime provisions of the FLSA are narrowly construed, and cities need more than creative argument to avoid liability for overtime that is not paid. While the impact of any legislation or administrative rule making imposed on fire service managers and their local municipalities by other government agencies may be burdensome and costly, failing to comply may be even more costly in terms of lawsuits and settlements.
