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Ninth Circuit:
Overtime Wages Not Due to Firefighters for Pandemic Confinement While Training
Opinion Says Suit Alleging Entitlement to Extra Pay for Hours Spent in Hotel, With Orders to Remain on Premises Due to COVID-19 Restrictions, Fails Under Federal Regulation
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that summary judgment was properly granted in favor of the County of Los Angeles in a class action suit alleging wage violations for the failure to pay firefighters overtime for hours they spent confined to a hotel, with orders not to leave due to the COVID-19 pandemic, during academy training in 2020 as the restrictions did not turn the after-hours time into compensable work.
Appealing the judgment was Bryan Hunt, who filed a class action complaint against the county and others on June 18, 2021 asserting that it failed to properly compensate firefighters for their attendance at the county’s Fire Fighting Training Academy.
The complaint specifically alleges that, from March through May of 2020, recruits were required to stay at a hotel for six out of seven days, over a four-week span, during which time they were required to remain in their rooms without compensation for the after-training hours, the defendants removed the case to federal court the following month.
Summary Judgment
After both sides filed motions for summary judgment, District Court Judge Percy Anderson of the Central District of California granted the county’s motion on July 6, 2023. Anderson said that 29 C.F.R. §553.226(c) bars relief on Hunt’s complaint.
The section provides:
“Police officers or employees in fire protection activities, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.”
Anderson acknowledged that the pandemic restrictions in place at the time subjected the plaintiffs’ free time to certain limitations but said in the order:
“Here, the undisputed facts show that Plaintiff was a Fire Fighter Trainee in attendance at the County’s Fire Academy. After training sessions, while at the Hotel, Plaintiff was free to engage in activities such as resting, studying, watching television, making phone or video calls, bathing, and spending time with other Trainees. Plaintiff also testified that he spent the majority of his time at the Hotel sleeping.” He continued: “Although Plaintiff was required to reside at the Hotel from Sunday evenings through Saturday afternoons/evenings and was subject to additional restrictions (i.e., no visitors), such restrictions were the result of extenuating circumstances—specifically, the COVID-19 pandemic and Governor Newsom’s ‘stay-at-home’ Executive Order. That is, all California residents, not just the Trainees, were somewhat restricted in what they could do during their free time in March and April of 2020.”
The Ninth Circuit affirmed the order in a memorandum opinion filed yesterday and signed by Circuit Judges Ryan D. Nelson, Eric D. Miller, and Roopali H. Desai.
Sec. 553.226(c)
The panel, agreeing with Anderson, reasoned that §553.226(c) resolves the matter. They said:
“The regulation’s plain text resolves this case. Hunt, an employee attending a fire academy, was ‘not in class or at a training session’ during his hotel time….All such classes and training took place at the Academy itself.”
Looking at how Hunt spent his after-training hours, the jurists wrote:
“We are not persuaded by Hunt’s argument to the contrary. Hunt argues that the regulation does not apply because he was ‘always on call and tethered to the hotel,’ and thus was not ‘free to use such time for personal pursuits.’ But the undisputed facts show that Hunt was not expected to do anything work-related during his time at the hotel and that he did, in fact, use the time for ‘personal pursuits’ such as showering, laundry, and video chatting with friends and family.”
Pointing to wage and hour jurisprudence, decided before the COVID-19 pandemic, relating to on-call employees, the judges said:
“Hunt’s hotel time is not compensable just because the County, in its efforts to comply with California’s stay-at-home order, required him to remain at the hotel….A contrary conclusion…would turn ‘all or almost all on-call time’ into ‘working time, a proposition that settled case law and the administrative guidelines clearly reject.’….As such, Hunt’s free time at the hotel was not compensable.”
The case is Hunt v. County and City of Los Angeles, 23-55778.
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