The City of Los Angeles Fire Department (LAFD) employs dispatchers and aeromedical technicians. Dispatchers, who work from the Los Angeles City Hall building, receive emergency calls and relay them to the fire stations. While dispatchers occasionally work at the scene of a large incident, no dispatcher has done this for at least ten years. Dispatchers are not required to keep fire protective gear with them or to handle firefighting equipment. They do not physically engage in fire or rescue operations. Before becoming a dispatcher for the LAFD, dispatchers are required to work for the LAFD as either a firefighter or paramedic for at least four years.
Aeromedical technicians must have experience as both firefighters and paramedics. They work within the Air Operations Unit (AOU), providing support services for helicopters designated as air ambulances. They are not outfitted with the same gear used by firefighters, and spend the majority of their flights administering medical care. While the AOU helicopters are occasionally used to drop water on brush fires and map out the fires, aeromedical technicians do not ride in the helicopter when it drops water on the fires.
For purposes of the Fair Labor Standards Act (FLSA), the City classified dispatchers and aeromedical technicians as employees "engaged in fire protection." Therefore, instead of providing overtime pay for any hours worked over 40 in one week, the City used the calculation provided in 29 U.S.C. section 207(k) (the 207(k) calculation), and only provided overtime pay if the dispatchers or aeromedical technicians worked more than 204 hours in a 27-day period.
A group of dispatchers and aeromedical technicians (Plaintiffs) filed suit alleging that the City violated the FLSA by calculating their overtime pay as though they were employees "engaged in fire protection." Both parties filed motions for summary judgment, and the district court granted Plaintiffs' motion. Following the district court's order, the parties began to calculate damages, and reached an impasse. They filed motions for summary judgment on the issue of damages, and the district court granted Plaintiffs' motion. The City appealed the issues of liability and damages.
The FLSA is construed liberally in favor of employees, and exemptions are narrowly construed against employers. Section 203(y) of the FLSA defines "employee engaged in fire protection" as an employee who, among other factors, "has the legal authority and responsibility to engage in fire suppression." In a previous case involving the LAFD, Cleveland v. City of Los Angeles (9th Cir. 2005) 420 F.3d 981, the Court of Appeals for the Ninth Circuit evaluated whether paramedics qualified as employees "engaged in fire suppression," and held that they were not. In its analysis, the Court noted that while paramedics treat injured people and exhausted firefighters, they do not assist with fire suppression. They do not, for instance, carry firefighting equipment or wear fire-protective gear.
Applying the same reasoning as in Cleveland, the Court held that dispatchers and aeromedical technicians do not engage in fire suppression. Dispatchers do not suppress fires; they send firefighters to the scene to suppress fires. Aeromedical technicians perform medical duties and are not required to wear full fire protective gear. If an air ambulance is used to drop water, the technicians may perform support duties for the helicopter, but do not ride in the helicopter when it performs the drop. Therefore, Plaintiffs' overtime should not have been calculated using the calculation for employees engaged in fire suppression.
The Court then addressed the issue of whether the City's overtime calculation was "willful."
While the standard statute of limitations for FLSA violations is two years, the FLSA allows a three-year statute of limitations for "willful" violations. An employer acts willfully when it knows of a risk that its conduct is unlawful and disregards that risk.
The Court held that the City acted willfully because it has extensively litigated the meaning of the section 207(k) calculation (for instance, in Cleveland), and failed to examine the issue of whether the calculation should be used for dispatchers and aeromedical technicians. Further, during the course of litigating this case, the City reassigned dispatchers from the Bureau of Support Services, which has a primary objective of dispatching resources to the scene of emergencies, to the Bureau of Emergency Services, which includes all personnel normally engaged in firefighting. Therefore, the City acted willfully and is liable for an additional year of withheld overtime pay. The Court also held that Plaintiffs were entitled to liquidated damages in the amount of the unpaid overtime compensation (i.e., double damages) because the facts that supported a showing of willfulness also supported a finding that the City did not act in good faith and did not have objectively reasonable grounds for believing that it was complying with the FLSA.
An employer may credit overtime payments already made to employees against the overtime payments owed to them under the FLSA. The parties disputed how to calculate the credits and offsets. While some other federal circuits use a cumulative approach, the district court held that they should be calculated on a week-by-week basis, and the Court agreed. Because overtime is supposed to be calculated on a weekly basis (any work over 40 hours), the Court reasoned that the credits should be calculated using the same time frame.
When Congress amended the FLSA in 1999, it intended to broaden the scope of the 7(k) exemption to cover fire department personnel who are not exclusively engaged in firefighting. However, the Ninth Circuit has largely nullified this amendment by construing the 7(k) exemption for firefighters very narrowly to require that an employee must have actual responsibility to engage in fire suppression. Thus, fire agencies in the Ninth Circuit (which includes California) should be careful to ensure that any employees who are paid overtime based upon a 7(k) schedule instead of after 40 hours per week actually have a true responsibility to engage in fire suppression.
Haro v. City of Los Angeles (9th Cir. 2014) __ F.3d __ [2014 WL 1013244].