Faulty OT comp scheme causes firefighters to sue

FLSA requires overtime payment to non-exempt workers including firefighters. However, the threshold for determining when overtime should be paid is different for different types of jobs. Specifically, Section 207(k) of FLSA requires that firefighters and certain law enforcement employees meet a higher threshold than 40 hours a week before the employer has to pay overtime.

City governments that have been making OT payments, but in the wrong amounts, are finding that not abiding by the 207k exemption can be costly. In some instances, incorrect OT payments actually serve to increase the city's liability.

For instance, one mid-western city agreed to pay its firefighters OT (1.5x) for all hours worked over 155 hours in a 21 day period. The union agreed OT compensation scheme comported with the Section 207k exemption.

However, instead of actually calculating the OT payment for each and every firefighter, the city paid a blanket 5.5 hours premium to every firefighter regardless of the number of hours worked. Clearly for some firefighters, the city has underpaid the amount of OT.

In fact it is argued, that in those instances where the firefighter has worked more than 155 hours, the city, according to section 207k, has not actually paid any overtime at all to those workers. In these types of cases, it is argued that not only should the OT payment not be an offset in the damages calculation, but it should actually be included in the calculation of the indiviudal's base pay. In these instances, the payment of the OT premium, since it is not legally an overtime premium payment, actually serves to increase the city's liability.