Settlement taking shape between city and underpaid Petaluma firefighter

A settlement is currently taking shape between the city and a member of the Petaluma Fire Department that sued over years of unpaid wages, alleging violations of the Fair Labor Standards Act that may have also occurred with other firefighters.

In a federal lawsuit filed in April 2018, longtime firefighter Kevin Burris claims he went at least three years without receiving lump sums of in-lieu payments for working on holidays and also declining city-sponsored medical benefits.

As a result, the city failed to separate those payments from his base salary, resulting in a systematic underpayment of overtime wages that corresponded with his regular rate, the complaint said.

Following a settlement conference last week, the framework for a forthcoming agreement is in place as both sides bring the deal back to their respective parties, said Burris’ attorney, Dave Mastagni. Since the mediation is ongoing, details of the settlement are currently confidential.

So far the dialogue has been amicable, Mastagni said, and he characterized the case as more of an accounting issue than an instance of emotional litigation.

Similar complaints have arisen in cities throughout California that failed to compensate public safety workers in this complex gray area between union contracts and the ever-changing legal precedents surrounding the FLSA.

Following a May 2017 denial by the U.S. Supreme Court to hear Flores v. City of San Gabriel, the controlling law established by the Ninth Circuit Court of Appeals in this case became the standard, establishing the rule that in-lieu payments have to be combined with an employee’s regular rate and overtime pay when calculating wages.

Training on how to comply with that change has been provided to city agencies, and failure to meet the obligation “was not in good faith, and was a willful violation of the FLSA,” the complaint said.

City Attorney Eric Danly described last week’s conference as “productive,” and conceded that the city took the better part of a year to analyze the new case law and synchronize the payroll system with the manual calculations that it would require. Adapting to the changes in federal law is an area other municipalities also have been lagging in, he said.

Avoiding litigation would have been preferable to avoid using public resources, he said, but Danly recognized the time it was taking to adapt, and expects back pay to be a part of the settlement.

“It’s not a question of mistake or incompetence in terms of the city’s fiscal management,” he said. “It’s a matter of unanticipated changes in certain areas of the law.”

Petaluma Fire Chief Leonard Thompson declined to comment on the case, and attempts to reach PFD engineer and Local 1415 president Ken Dick were unsuccessful.

Petaluma firefighters work 48 hours on and 96 hours off, with 13 holidays observed in the contract between the union and city. Under the most recent agreement available, which covers fiscal years 2013-17, holiday pay is calculated by using the employee’s base hourly rate multiplied by 12 hours.

Whether in-lieu payments combined with the regular rate would result in higher overtime payouts, as opposed to what’s in the current agreement, remains unclear.

The PFD has been grappling with an increased workload and growing response times in recent years with service calls spiking at a record-setting pace.

Despite population gains of more than 17,000, PFD staffing has remained relatively static over the last 30 years, with 58 employees currently in the agency – 51 of which serve as first responders.

Petaluma’s General Plan calls for one fire suppression worker for every 1,000 residents, which means the city is at least nine shy of where it would like to be.

In 2018, the department responded to 7,091 calls for service, up from 6,744 in 2017, 6,290 in the fiscal year 2015-16 and 5,286 in 2014-15. Each tally marked a new record in service calls.

City officials are currently exploring ways to increase staff by providing a third paramedic vehicle to respond to medical emergencies within the service area.

(Contact News Editor Yousef Baig at yousef.baig@arguscourier.com or 776-8461, and on Twitter @YousefBaig.)