December 1999
Volume 13, Number 12

President signs new FLSA exemption
The question of whether paramedics employed in the fire service fall under fire fighter overtime rules has been answered in the affirmative with enactment of a new federal law. On December 9, President Bill Clinton signed H.R. 1693. The new law, which amends the Fair Labor Standards Act (FLSA), for the first time statutorily defines who is an "employee in fire protection activities." The law essentially adopts the Department of Labor regulatory definition but adds to fire fighter "paramedic, emergency medical technician, rescue worker, or hazardous materials worker." 

Supporters of the law hope that the definition will make clear which fire service employees will qualify for the Section 7(k) partial exemption of the FLSA. Under this partial exemption, fire service personnel do not earn credit for overtime until they have worked in excess of an average of 53 hours per week.

The new law should end court confusion concerning overtime eligibility for emergency medical service personnel who work in fire departments. Some courts have previously ruled that fire fighters who worked exclusively as paramedics fail to qualify for the Section 7(k) exemption because of the "80-20" rule. This DOL

 regulation provides that if over 20 percent of an employee's time is spent on non-fire suppression activity, the employee falls out of the FLSA exemption. The new law supersedes this reasoning and specifically includes paramedics and EMTs. Also covered are hazardous materials personnel originally trained as fire fighters. 

Not mentioned in the new definition are fire and arson investigators. A case reported this month in the Litigation section rejects Section 7(k) coverage for a group of fire investigators. Presumably, fire investigators still fall outside of the exemption, although they might qualify as "law enforcement" personnel. If so, fire investigators could be subject to a 43-hour workweek before becoming eligible for overtime compensation under the FLSA.

Both the International Association of Fire Chiefs and the International Association of Fire Fighters, AFL-CIO, endorsed the legislation, which was spearheaded through Congress by Representative Robert Ehrlich, Jr. (R-Md). 

Last month, Fire Service Labor Monthly erroneously reported that the Congress had adjourned before the Senate had acted on the measure.

President, IAFF, IAFC leaders memorialize lost fire fighters
The lives of service of six Worcester, Massachusetts, fire fighters killed in a warehouse fire December 3 were remembered at a memorial service attended by an estimated 25,000 fire fighters, the President and Vice President, and leaders from fire service labor and management groups. The memorial, held December 9, included comments from President Bill Clinton as well as Alfred K. Whitehead, president of the International Association of Fire Fighters (IAFF), AFL-CIO.

Thomas Spencer, Timothy Jackson, James Lyons, Joseph McGuirk, Paul Brotherton, and Jeremiah Lucey were killed during the five alarm fire. Authorities believe that the tragic inferno was accidentally started by two homeless individuals who were occupying the building. Manslaughter
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charges have been filed against the pair. The fire is believed to be the worst structural fire fighter fatality scene in more than 20 years.

According to initial reports, as many as 40 fire fighters entered the building to search for possible occupants. While searching, Brotherton and Lucey issued a "mayday" call, reporting that they were low on air. The other four fire fighters, part of a rapid intervention team, entered the bulding to search for their colleagues. They too apparently became trapped.

In his remarks at the memorial, President Clinton labeled the men heroes and recalled an essay by Benjamin Franklin entitled "Brave Men at Fires." The President quoted Franklin, "Neither cold, nor

 darkness will deter good people from hastening to the dreadful place to quench the flame. They do it not for the sake of reward or fame; but they have a reward in themselves, and they love one another." 

IAFF leader Whitehead echoed the hero characterization noting, "In an era when heroes are hard to find, few would dispute that fire fighters are America's heroes. At a time when bravery is in short supply, fire fighters demonstrate the essence of bravery." The six fallen fire fighters were members of Local 1009 of the IAFF.

Also in attendance were Luther Fincher, president of the International Association of Fire Chiefs (IAFC) and IAFC executive director Garry Briese.

Michigan strikes residency requirement
The Michigan legislature has forwarded to Governor John Engler a bill which will severely limit the ability of municipalities to impose residency requirements on fire fighters, police officers, and other public employees. If Engler signs the bill into law, as is expected, the mayor of Detroit has promised to launch a voter referendum to have the law repealed. Currently, about 80 Michigan cities maintain a residency requirement for public employees.

Michigan lawmakers agreed earlier this month to Senate Bill No. 198 which prohibits a public employer from requiring as a condition of employment or promotion residency within a specific geographic area or within a specified distance or travel time. The bill also bars such a provision from being part of a collective bargaining agreement. The proposal does permit local governments to mandate that employees reside near the jurisdictional boundary but this requirement

 cannot be established closer than 20 miles. Additionally, the bill exempts married couples who work in different cities from having to comply with both cities' residency requirements.

Fire fighter and police unions support the measure, arguing that they have a legal right to live where they wish. Other supporters of residency abolition claim that lack of a domicile requirement will expand the pool of applicants for municipal jobs, thereby improving the overall quality of public service personnel.

Critics, including Detroit Mayor Dennis Archer, assert that fire fighters and police officers who reside in their employing cities increase community safety and pay taxes that support their jobs. Mayor Archer claims that Detroit could lose up to $25 million in income and real estate taxes by public employees who flee the city. He has announced a campaign to place a repeal measure on the November 2000 ballot.

Activist fire fighters gain $2.2 million verdict
A South Carolina jury last month awarded three fire fighters $2.2 million in damages, finding them the victims of retaliation for exercising First Amendment free speech and union associational rights. The losers in the suit were the City of North Charleston, its mayor, and its fire chief. The jury assessed $225,000 of the damages against Fire Chief Alvin Rissanen in his individual capacity.
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The dispute began in 1996 when the city took over a public service district and consolidated its fire fighting responsibilities into the city department. All district fire fighters were required to reapply for employment. Three of the district personnel, including an assistant chief, were not hired despite attaining a written test score higher than several other subsequently employed fire fighters. The city later claimed the three failed the oral interview portion of the process.

At trial, the former fire fighters convinced a federal court jury that the true reason for their rejection was prior activities with the fire fighters' union and public comments that one of them had made about the quality of fire protection in the community. Two of the plaintiffs had been the

 primary organizers of the fire fighters' union while all had been involved in a successful overtime lawsuit against their old employer.

The suit is unusual in that most allegations of First Amendment retaliation come in cases where a public employee is demoted or terminated for union activities or comments critical of the employing agency. Here, the activities and comments involved a prior employer. The city apparently was under no legal obligation to hire the three fire fighters but the jury found that such a refusal to hire could not be based on prior constitutionally protected activities. 

An appeal of the case, Gilbert v. City of North Charleston, South Carolina, is expected in the coming weeks. 
Litigation

Supreme Court update
The Thanksgiving holiday slowed work at the Supreme Court. However, the Court did decide not to review City of Westminster, California v. Herr, No. 99-465. This leaves in place a lower court monetary award to several fire fighters who lost their jobs as a result of political retaliation.

A recently filed case of interest is Kline v. City of Kansas City, Kansas, No. 99-912. This matter concerns the claims of two female fire fighters and two fire department clerical employees that they were discriminated against in violation of state and federal equal employment laws. Lower appeals court found the trial judge should not have awarded punitive damages in the case. Plaintiffs are seeking reinstatement of the punitive damages.

 perform special projects outside of their normal hours of employment were to receive compensatory time in lieu of cash overtime pay. However, the contract capped the amount of comp time that an employee could accumulate at 144 hours, after which the fire district was required to pay the employee time and one-half for each overtime hour. Employees were able to schedule paid time off based on their comp hours by giving 64 hours notice in advance. A group of the fire fighters did not use their comp time and instead accumulated it. As their accumulated time began to approach the 144-hour cap, fire district officials told them to use their comp time. The fire fighters did not need or want to use the time but reluctantly complied with the order. They then grieved the matter under the labor contract, arguing that the district lacked the authority to force them to use the comp time. The grievance was initially denied at the first step and the fire fighters then filed suit claiming that the fire district violated the federal Fair Labor Standards Act (FLSA) by requiring them to use the accumulated

Cases of interest

Overtime
The fire fighters' union and the fire district were parties to a collective bargaining agreement. The agreement provided that fire fighters who
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time. The fire district responded by saying that the fire fighters had failed to exhaust their administrative remedies under the labor contract. Trial court ruled that the fire fighters were not required to exhaust administrative remedies before bringing an FLSA suit but further ruled that the FLSA did not prohibit public employers from requiring employees to use accumulated compensatory time. Fire fighters appeal.

HELD: Fire district argues that the fire fighters' claim is barred by their failure to exhaust their administrative remedies under the labor agreement. The rule for determining whether a plaintiff is required to exhaust remedies provided for in a collective bargaining agreement before bringing a claim in federal court is well established. If the claim is based on rights arising from the agreement, the plaintiff is required to exhaust remedies. However, if the claim arises from statutory rights, the plaintiff is not required to exhaust remedies. Additionally, Congress provided that FLSA rights were to take precedence over conflicting provisions in a negotiated labor agreement. Consequently, exhaustion of remedies is not required in a case such as this where the claim is based on a statutory right. As to the substance of their claim, the fire fighters argue that the FLSA is violated when they are forced to use their comp time. Two prior federal appeals courts have considered the question of whether a public employer can require employees to utilize compensatory time earned under the FLSA. The two federal circuits have come to conflicting results. The Eighth Circuit held that the earned time belongs to the employee and the employer can not compel use of comp time but can restrict its use when it would unduly disrupt operations. On the other hand, the Fifth Circuit found that the FLSA does not create a property right in accrued comp time. This court agrees with the Fifth Circuit approach. The plain language of the FLSA does not specifically prohibit public employers from requiring employees to use compensatory time. Similarly, nothing in the legislative history suggests that comp time is a

 property right or that employers would not be allowed to require employees to use accumulated time. The creation of a compensatory bank was Congress' method for easing the financial burden on local governments in complying with the FLSA. Allowing employees to stockpile comp time and ultimately be paid cash upon termination would upset the very balance Congress sought to create. Clearly, Congress wanted to protect employees' rights to use comp time and, therefore, limited the employers' ability to prohibit its use. However, Congress did not intend to allow employees to upset the balance by stock piling comp time and eliminating the employer's flexibility. The FLSA simply does not prohibit public employers from requiring employees to use comp time. Affirmed for fire district. [Collins v. Lobdell, 188 F.3d 1124 (9th Cir. 1999)]

Overtime
Eight individuals were assigned to the office of fire investigations of the county's fire department. Their shift schedule consisted of two 10-hour shifts, followed by two 14-hour shifts, followed by four days off. Thus, as fire investigators their shifts ranged from 34 to 48 hours per week or a maximum of 96 hours in a two-week period. They filed suit against the county claiming that they were due overtime compensation under the federal Fair Labor Standards Act (FLSA). The county countered that the fire investigators were "employees engaged in fire protection activities" as defined by the FLSA and as a consequence were not eligible for overtime compensation until their work period exceeded 106 hours in a two-week period. The investigators contend that until June 1997, they were actually "employees engaged in law enforcement activities" and as such received overtime compensation when they worked over 86 hours in a two-week period. After June 1997, however, the investigators lost their police powers. Consequently, after that date the fire investigators claim they were entitled to overtime compensation based on the customary 40-hour workweek. Each investigator was required to have
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three years' experience as a fire fighter. They were represented by the same union as other fire fighters and covered by the same collective bargaining agreement as other fire fighters. They were assigned, however, to a separate command from combat fire fighters and were not assigned to any particular station. Their primary job was to inspect suspicious fires to determine if arsons had occurred. The investigators maintain that they were not "engaged in fire protection activities" as defined by the FLSA and thereby not subject to the partial exemption concerning overtime pay. The county argued that they do fit within the FLSA exemption and moved for summary judgment.

HELD: The FLSA requires employers to pay their employees overtime for all hours worked in excess of 40 during one week. However, the act establishes certain exceptions that are to be narrowly construed against the employer. In this case both parties agree that in June 1997, the fire investigators were subject to the law enforcement exemption. After that date they lost their police powers and fell outside the exemption. They now dispute whether the fire investigators come within the fire protection exemption. The FLSA does not define the term "fire protection activities." The Department of Labor (DOL), however, has created regulations to provide the necessary definition. Under DOL regulations an employee engaged in fire protection activities must be: (1) employed by a fire department; (2) trained to the extent required by state and local law; (3) have legal authority and responsibility to engage in the prevention, control or extinguishment of a fire; and (4) perform activities which are required for, and directly concerned with, prevention, control and extinguishment of fires. Here, the fire investigators agree that they fall within the first two criteria but argue that they do not satisfy the last two criteria. The county argues that they are responsible for preventing future fires through their arson investigations and that if they appear at the scene of a fire, they are in the chain of command and could be required to engage in suppression activities. Thus, the county claims the investigators

 are actually fire fighters. The FLSA requires a court to determine whether a public employee's actual duties include the prevention, extinguishment and control of fires. Although the county argues that the fire investigators could be called to do so, the county did not establish one incident where investigators were ever asked to perform suppression functions. Likewise, the idea of preventing and controlling fires because arson investigators prevent future fires by removing arsonists from society and deterring others from committing arson does not convert the investigators into suppression fire fighters. The county here has not established that the investigators perform activities that are directly concerned with the prevention and extinguishment of fires, as required by DOL regulations. The FLSA and its regulations are to be narrowly construed against the employer and the court is to look at the actual functions of the employee. From the facts of this case as scrutinized by the court, the conclusion must be reached that the fire investigators are not covered by the fire fighter exemption of the FLSA. They are, therefore, eligible for overtime compensation after working 40 hours per week. Summary judgment for fire investigators. [Lockwood v. Prince George's County, Maryland, 58 F. Supp.2d 651 (D. Md. 1999)]

Promotion procedures
The city utilized written examinations to determine promotion eligibility for fire fighters. Fire fighters who wished to promote took the examination and were placed on a list based on the rank order of their scores. The list remained in effect for one year. In 1995, three white fire captains took the examination and were placed on the list to be promoted to battalion chief. They were not promoted because the list expired before positions became available. In 1996, the top three positions on the list for battalion chief were occupied by minority fire fighters. Ten days before the list was due to expire, the city created three new battalion chief positions and promoted the individuals. City council apparently considered the fact that minorities
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were positioned at the top of the list to offer a unique opportunity. In 1997, three other white fire fighters were positioned at the top of the list for promotion to captain. The previous year the fire department had created temporary positions in anticipation of upcoming retirements. These temporary positions were used to promote minority candidates to captain in order to prevent their names from dying on the list. Because of the use of the temporary positions in 1996, no captain's positions were available in 1997 for the three white fire fighters. The two groups of white fire fighters filed suit alleging race discrimination in the promotion process. City moves for summary judgment.

HELD: To establish a prima facie case of race discrimination promotions, each plaintiff must show that he is a member of a protected class, he was qualified to be promoted and applied to be promoted to the position, that despite his qualifications he was not selected, and that a minority race candidate with equal or lesser qualifications was selected for the position. In this case, white fire fighters are as equally covered by the law as racial minority fire fighters. However, the city argues that there is no discrimination based on race. The white fire fighters claim that the city unlawfully discriminated by making sure that the minority candidates received promotions when they were eligible but not providing the same opportunity for white candidates. The record reflects that each person who was promoted was qualified and that no white candidate was skipped over so that a minority could be promoted. Plaintiffs are simply arguing discrimination based on speculation. None of the plaintiffs were on the promotion list when the alleged discriminatory promotions took place. Each is forced to speculate that, but for alleged discrimination in a prior or later year, he would have been promoted. This subjective belief is not sufficient to maintain a cause of action for race discrimination. The three lieutenants died on the 1996 and 1997 captains' list when the first twelve persons on the list were promoted and they ranked thirteenth, fourteenth, and fifteenth. Similarly, the

 three captains who sought promotion to battalion chief ranked fifth, sixth, and seventh out of the seven who passed the test. The city promoted the first four - three white males and one black male. When the next eligibility test was given one flunked, one did not take the test, and the third ranked last. Off that list, the two highest scoring candidates were promoted. The other four, including one of the plaintiffs, were later promoted as a result of creation of new positions. This procedure does not raise a prima facie case of race discrimination. Summary judgment for city. [Allison v. City of Fort Worth, Texas, 60 F. Supp.2d 589 (N.D. Tex. 1999)]
Settlements

Albuquerque, New Mexico

fire fighters
A new one-year labor pact grants Albuquerque fire fighters a three percent across the board pay raise. The contract postpones for the moment a dispute over whether uniformed fire fighters shall continue to be assigned to the department dispatch center. The dispatch staffing issue will be negotiated next year after the city completes a study of the matter. About 485 fire fighters are covered by the agreement which was negotiated by Local 244 of the International Association of Fire Fighters, AFL-CIO. 

Augusta, Maine

fire fighters
Augusta fire fighters recently ratified a new contract that grants a pay hike in each of its three years while giving the city a break on health insurance premiums. The contract, which takes effect January 1, grants raises of 2.5, 2.75, and 2.75 percent in the three years. After the first of the year, a beginning fire fighter will earn $23,700 annually. The 36 members of the bargaining unit were represented by the Augusta Uniformed Firefighters Association, Local 1650 of the International Association of Fire Fighters, AFL-CIO.