Zimmer, Duncan & Cole

Where There's Smoke, There's Firefighters Working Overtime

Firefighters are heroes to all of us. But the heroes in this week's lawsuit were treated like regular people when they were shorted overtime. Their struggle to get paid is told in Michael Specht, et al, v. City of Sioux Falls. A link to the full opinion is available at LessLegalesePlease.com.
Wildfires flared up everywhere during the hot, dry summer of 2006. The State needed extra help to battle them and called upon cities and towns across the region. After receiving the State's dispatch request, Sioux Falls Fire and Rescue agreed to send six of its "wildland certified" firefighters to assist.
Some were concerned that they might not work as many hours during deployment, compared to their normal shifts back home. (Typically, firefighters in Sioux Falls are scheduled to work 204 hours each month, in eight or nine 24-hour shifts.) The City promised it would make up the difference if their hours suffered.
As it turned out, there was no shortage of work during the next two weeks.
Captain Michael Specht and his first crew reported to the base camp in Rapid City to help with a fire near Sturgis. Next, they were sent to Chadron, Nebraska, to battle a fire in the rugged terrain south of Pine Ridge. Six days later, they were sent northward to fight a 26-square-mile prairie fire near Wall. Fresh replacements were periodically sent out from Sioux Falls.
During those two weeks there was almost no "off-duty" time. When they weren't sleeping, the crew was either fighting fires, traveling to fires, or running errands to obtain maps and additional gear that the City had failed to send with them.
While at base camp, they were under severe restrictions. They could not call their wives, watch television, or leave, except as a group (and even then, only if they maintained constant radio contact and were ready to dispatch at a moment's notice).
They had been told to write down all their off-shift time, which would then be added to their regularly scheduled on-shift time. Many logged over a hundred hours in addition to their normal shifts.
After their two-week tour, the crew returned home, exhausted, happy to be home, and looking forward to extra-large paychecks.
However, Captain Specht noticed that he had been shorted 82 hours of overtime pay: although he knew he had worked 142 hours of overtime, he had been paid for only 60.
He investigated. On his time-sheets he discovered white-out and a hand a hand-written explanation: "Mike hit his 204 plus overtime so remove these hours to reduce OT". His crew received similar underpayments, averaging $2,600.00 each.
After unsuccessfully filing a grievance, they filed this lawsuit.
Federal law guarantees most employees time-and-a-half when they work more than forty hours each week. Dozens of regulations define what it means to "work".
Compensable time includes on-duty time, plus all pre-shift and post-shift activities which are "closely related" to performing the job. For example, it may include time spent driving to and from work or in training, and in some cases, the time it takes to put on safety equipment before your shift starts. It also includes time spent under restrictions related to your job.
Here, the City defended its decision not to pay overtime because of an exception that applies when there are two separate employers. For example, if you work 40 hours per week at Citibank and then moonlight 40 hours a week at McDonald's, neither employer is required to pay overtime.
The City claimed that the firefighters worked for two employers during their tour: for the City during their regularly scheduled shifts, and for the State during "off-duty" time.
The Court of Appeals disagreed. It found it unclear whether the State was an "employer" here. For example, all of the documents say the City was the employer (and merely loaning out its employees to the State). In addition, the crew didn't charge expenses to the State, but instead used the Sioux Falls Fire & Rescue credit card during the trip. And, perhaps most importantly, the firefighters' "on-shift" time was spent fighting the exact same fires as during their "off-shift" time.
This case was sent back for a trial to determine who employed these firefighters: the State and the City, or only the City. If the City was their only employer, the firefighters will be entitled to overtime as well as their attorney's fees for this lawsuit.
Daniel K. Brendtro is a trial attorney from Sioux Falls. He is a partner in the law firm Zimmer, Duncan & Cole. Ask him legal questions online at www.zdclaw.com.