Ky. City Wrapped Up in Firefighter Overtime Battle

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Nov. 06--SOMERSET -- The City of Somerset, facing hefty legal costs in an ongoing fight against a ruling that stated several Kentucky cities must pay their firefighters several years' worth of overtime pay, may decide whether to proceed in that fight within the next month or so.

When asked about any updates on a legal battle that has lasted several years, Somerset City Attorney Carrie Wiese told the council during the Oct. 24 meeting that the case was still pending, and that the city was in a waiting mode.

"Whatever ... amount it is, then we'll come to you guys and at that point you can give me the authority to let our attorneys go ahead and settle with the (Department of Labor) and agree to it or keep fighting," Wiese told the council. "It'll be up to you guys."

Somerset and several other Kentucky communities became involved in the case after the Supreme Court ruled in 2007 that the City of Louisville would have to pay its firefighters overtime on a $3,500 annual supplement for training. That directly contradicted the state's Department of Labor, which had mandated that cities would not be required to pay overtime on those incentives. It was after that decision that the Department of Labor began enforcing the new rule in all cities.

Several of those cities joined together in the current case to challenge the authority of the Department of Labor to enforce the Louisville decision. Those cities claim they should be protected under the doctrine of sovereign immunity because they were acting as agents of the state in distribution of the state supplement.

The Supreme Court rejected those arguments, holding that the cities were not entitled to immunity because immunity had been waived by the General Assembly under state law. The Supreme Court further held that the wage and hour statutes and firefighter supplement statutes were not inconsistent and could both be enforced without creating a statutory conflict.

According to the Kentucky League of Cities, the latest ruling in the case, which was handed down this summer, states that the training supplement for firefighters employed on a schedule of 24-hours on/48-hours off should have been reduced to an hourly rate for calculation of overtime pay based on a 40-hour work week, thereby requiring overtime pay on the supplement for scheduled overtime hours worked prior to the 2009 legislative amendments.

This opinion means that cities with firefighters employed on a schedule of 24-hours on/48-hours off will likely collectively owe up to as much as $25 million in back overtime pay and employer retirement contributions. This figure does not include any pending retirement delinquency charges.

The case is still in Franklin County Circuit Court because the Supreme Court judges only addressed some of the issues connected to the case.

During the Oct. 24 meeting, Wiese noted that the city's legal fees are fast approaching what they may owe in back pay, which is around $500,000.

"We've been fighting for a couple years now," Wiese told the council. "How much more do we want to fight? How beneficial is it going to be to us?

... We're getting to that plateau," Wiese added.

That amount may be reduced drastically if the Supreme Court judges respond to the cities' requests to clarify the back pay calculations.

"It could save us a significant amount of money," Wiese said on Friday. "But what we might save we might have to turn arounf and pay to our attorneys anyway."

If the court declines to respond to the request, then the current calculation stands.

Wiese said a conference between the administrative law judge currently residing over the case and the Department of Labor has been set for Nov. 17. The city should receive more information -- and be able to make a decision on whether to continue the court battle based on that -- after the conference.

"We'll have enough information then, and we can present it to the city council and see if they want to keep fighting the state," Wiese said.