The lead attorney for the City of Rockingham, Norwood Blanchard of Cranfill, Sumner and Hartzog, said the city will be filing a response to the complaint in federal court. Firefighters are suing the city over the issue of overtime.
“I hope and I think the city would like to see this matter resolved fairly quickly, and the first step in doing that will probably be to invite the plaintiff’s attorney down to talk with them about how the fluctuating work week works, and how these employees are paid,” Blanchard said. “Hopefully, they’ll be able to see there is clearly no violation after that.”
He voiced his legal opinion that the city is in full compliance with the federal Fair Labor Standards Act, and cited a regulation on the federal books as to how the “fluctuating workweek” works.
“We can clearly understand that someone may have difficulty understanding how their paycheck is calculated using the fluctuating workweek method, but the city is in full compliance with the Fair Labor Standards Act in this case,” Blanchard said.
Blanchard said he worked on a similar suit that was filed against Brunswick County, and won the case.
He also cited cases in Wake County and New Hanover County where this type of suit was won by the local government.
M. Travis Payne of Edelstein & Payne explained Arthur Traynor of Woodley and McGillivary in Washington, D.C. is the lead attorney for the firefighters, and he is serving as local counsel.
Traynor declined comment and deferred questions to the firefighter’s union.
Payne said he is not familiar with the particular circumstances of this case, but he has represented employees in cases like this against local governments before.
“I can’t believe that this case isn’t going to be successful, I really can’t,” Payne said. “Woodley and his folks up in Washington know this area of case law very well, and I’ve only lost one of these case out of 15 I’ve filed, and that was a very unique case.”
He explained appeals ruled on in federal court before that case came to trial changed the circumstances it was filed under.
“I can’t tell you that I have always won everything I thought my clients were entitled to, but I can tell you I have always won something out of these cases,” he continued. “It is fairly easy, just from sitting down with your client, or in this case multiple clients, for an hour or two looking at timesheets, looking at payroll records, it’s pretty easy to determine whether or not there’s been a violation.”
At the center of this issue is the type of compensation firefighters are entitled to, according to both legal counsels.
The salaries of fire fighters, paramedics and police officers typically are paid differently from the average worker.
Federal regulations stipulate the average worker in the private sector be compensated time and a half for every hour worked over 40 hours in a seven day workweek.
For firefighters in particular, the regulations are different because many of their shift hours are spent not actually working, Blanchard explained.
In the City of Rockingham, he said fire fighters work on a 14-day workweek schedule, and they are essentially allowed an average of 106 hours for that workweek before qualifying for overtime.
He said these hours are averaged out over a set period of time.
“What we are finding is that not only is the city not in violation of Fair Labor Standards Act, but in some instances they pay their employees substantially more than what is required by the FLSA,” he said. “But they are in full compliance.”
Payne pointed out he’s worked on cases where there were stringent requirements for a firefighter during their off-time. Some firefighters are asked to respond within 15 minutes of being paged, meaning their time is still tied-up even when they’re not at work.
“In a case like that they deserve to be compensated for that time,” he said.
He was careful to add that he has not been in contact with the group of firefighters bringing the suit against the city, and was only serving as local counsel while Traynor is the lead attorney and has all the details of the case.
Blanchard said there is a strong possibility this case won’t go to trial.
“Actual trials in these type of cases are very uncommon, typically the two sides either reach a settlement or the judge typically decides for one side or the other,” he said. “The payroll records typically speak for themselves.”
One thing is clear to both sides in this case, the firefighters who have filed the suit have protection under the law from being fired by the department despite the state of North Carolina’s “employment-at-will” policy for governmental employees.
“Once you assert your legal rights, as limited as they are, you do have some protection from being terminated from the department in retaliation,” Payne said. “The law actually states you cannot be discriminated against for bringing a labor question to court.”
He said even if they lose the case, these protections remain in place, provided the judge finds there was a legal question in the suit, and it was not “completely frivolous.”
However, Blanchard pointed out this doesn’t amount to a tenure type of situation.
“What is prohibited is terminating someone because they brought a lawsuit,” he said. “So, let’s say for instance that a city has a policy of firing people who get caught drunk-driving, and an employee files a labor complaint, then is caught drunk-driving two or three days later. The city is perfectly within the law to terminate that person on that basis.”
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