United States District Court, D. South Carolina, Charleston Division
James Regan and Mason Underwood, on behalf of themselves and all others similarly situated, Plaintiffs,
City of Hanahan, Defendant.
ORDER AND OPINION
Richard Mark Gergel United States District Court
moved for Conditional Class Certification for Subclass One
and Subclass Two. (Dkt. Nos. 46, 46-1.) On April 18, 2017,
this Court granted Plaintiffs' motion for Conditional
Class Certification of Subclass One and denied the motion
without prejudice for Subclass Two, ordering the parties to
submit supplemental briefing on Subclass Two. (Dkt. No. 57.)
Plaintiffs filed a renewed motion for Conditional Class
Certification of Subclass Two. (Dkt. No. 58.) For the reasons
set forth below, Plaintiffs' motion for Conditional Class
Certification of Subclass Two is denied.
Regan and Mason Underwood filed this class and collective
action on behalf of themselves and all others similarly
situated ("Plaintiffs") against Defendant City of
Hanahan (the "City"), alleging violations of the
Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§§ 201-219, and the South Carolina Payment of Wages
Act, SC Code Ann. § 41-10-10, et. seq.
("SCPWA"). Specifically, Plaintiffs allege that the
City, which employed them as firefighters and EMS personnel,
administered two payment plans that violated the FLSA. The
first payment plan, which was in place through July 2015,
allegedly incorporated illegal sleep time and meal time
deductions. The City implemented a new payment plan in July
2015 which Plaintiffs allege did not compensate them for
overtime work as required under the FLSA.
have asked the court to certify this matter as a collective
action for actual damages, liquidated damages, and
attorneys' fees and costs under 29 U.S.C. § 216(b)
and to define two subclasses. The Court granted
Plaintiffs' motion for Conditional Class Certification of
Subclass One and ordered the parties to submit supplemental
briefing about Subclass Two in light of three decisions from
different Circuit Courts of Appeals: Gonzalez v. City of
Deerfield Beach, Fla., 549 F.3d 1331 (11th Cir.
2008); Lawrence v. City of Philadelphia, P., 527
F.3d 299 (3d Cir. 2008); and Cleveland v. City of Los
Angeles, 420 F.3d 981 (9th Cir. 2005). (Dkt. No. 57.)
Both parties have submitted supplemental briefs, so the Court
now considers Plaintiffs motion for conditional class
certification of Subclass Two.
Subclass Two: For individuals employed from July 1,
2015 to the present: All individuals employed by Defendant in
its Fire Department, but were assigned to EMS ("on the
box"), who were non-exempt employees (paid an hourly
wage) and who worked in excess of forty (40) hours in any
given work week, but who did not receive overtime
compensation of at least one and one-half (1.5) times their
regular hourly wage for all overtime hours.
(Dkt. No. 46-1 at 5.) The City objects to conditional class
certification of Subclass Two, arguing that the pay plan in
place from July 2015 did not violate the law because
Plaintiffs had the "legal authority and responsibility
to engage in fire suppression" so were subject to the
FLSA's overtime exemption under 29 U.S.C. § 207(k).
the FLSA, an action may be maintained by any one or more
employees against an employer on behalf of themselves and
"other employees similarly situated." 29 U.S.C.
§ 216(b). This Court follows a two-step approach to
decide whether employees are "similarly situated."
The first step is notice. If this Court determines that
notice should be given to potential members of the class, it
will conditionally certify the class to facilitate notice and
allow individuals to opt-in to the class action.
Purdham v, Fairfax Cty, Pub. Sck, 629
F.Supp.2d 544, 547 (E.D. Va. 2009), Although Plaintiffs'
burden at this stage is not particularly onerous, conditional
class certification is not a rubber stamp: this Court will
not facilitate notice unless the facts and circumstances of
the case indicate that a class of employees exists that is
made up of individuals who are similarly situated as
"victims of a common policy or plan that violated the
law." Id. at 548 (quoting Choimbol v.
Fairfield Resorts, Inc., 475 F.Supp.2d 557, 563
(E.D.Va.2006) (citations omitted)). The second step is final
class certification. After discovery is completed, the Court
determines whether Plaintiffs have met their burden of
demonstrating that the class is similarly situated. If so,
the Court will then certify the class.
FLSA imposes certain overtime pay requirements on employers
of non-exempt employees. 29 U.S.C. § 207(a). Section
207(k) partially exempts certain employers of employees
"in fire protection activities" from this overtime
pay requirement, imposing an increased overtime threshold
over a longer work period of seven to twenty-eight days. The
First Circuit Court of Appeals has explained the purpose and
effect of the Section 207(k) exemption:
The effect of the § 207(k) partial exemption is to
soften the impact of the FLSA's overtime provisions on
public employers in two ways: it raises the average number of
hours the employer can require law enforcement and fire
protection personnel to work without triggering the overtime
requirement, and it accommodates the inherently unpredictable
nature of fire fighting and police work by permitting public
employers to adopt work periods longer than one week.
O'Brien v. Town of Agawam, 350 F.3d 279, 290
(1st Cir. 2003). Previously, under 29 C.F.R. § 553.212,
individuals like Plaintiffs who spent more than twenty
percent of their working time performing nonexempt activities
(in this case, paramedic duties) did not fall under the
Section 207(k) overtime exemption. In 1999, Congress amended
the FLSA to "clarify the overtime exemption for
employees engaged in fire protection activities." Pub,
L. No, 106-151, 113 Stat. 1731 (codified as amended at 29
U.S.C. § 203(y)). Under 29 U.S.C. § 203(y), the
following employees are, by definition, considered to be
involved "in fire protection activities" for the
purposes of the Section 207(k) exemption:
an employee, including a firefighter, paramedic, emergency
medical technician, rescue worker, ambulance personnel, or
hazardous materials worker, who ... is trained in fire
suppression, has the legal authority and responsibility to
engage in fire suppression, and is employed by a fire
department of a municipality, county, fire district, or
State; and is engaged in the prevention, control, and