Ex-EMS worker is suing county
By Steve Herring
Published in News on January 16, 2014 1:46 PM
A class action lawsuit alleging Wayne County does not pay its emergency medical technicians time and a half for overtime work is headed to mediation.
The lawsuit also alleges the county has failed to pay those employees for sick time they are owed.
Both the county and the Wayne County Board of Commissioners, which approved the current pay plan, are named as defendants in the complaint, which was filed in October in U.S. District Court. Commissioners have not mentioned the lawsuit in open board session.
The action was filed by Billy McLawhorn of Lenoir County, who worked with the EMS department from Nov. 15, 2010, until his resignation on Feb. 8, 2013. His base pay was $30,590 annually.
While McLawhorn's name is the only one on the complaint, he said in the filing that he is bringing the lawsuit on behalf of all emergency medical technicians who either currently work for the county, or who worked with the county over the past three years.
According to the suit, that number is in excess of 100.
The lawsuit does not ask for a specific amount of damages. It does seek compensatory damage in the form of the back pay owed, "believed to be in excess of $20,000." The suit also seeks "liquidated damages," which essentially allows an employee to receive double his or her unpaid wage compensation and asks that the county and commissioners pay attorneys' fees and the cost of the court action. The lawsuit also seeks any other relief that the court "deems just and proper."
"The McLawhorn suit is in the discovery stage," said Goldsboro attorney Walter Webster, who is representing McLawhorn. "I am working with opposing counsel to designate a mediator for the case currently, but no mediation date has been set."
Commissioners and the county are being represented by attorneys with the Raleigh law firm of Patterson Dilthey. Attorney Chris Derrenbacher said he could not comment.
McLawhorn further alleges that the county is improperly basing how it calculates overtime pay for emergency medical technicians by classifying them under a fire protection exemption in the Fair Labor Standards Act.
He alleges that the county is doing so even though its EMS department is separate from the county's independent volunteer fire departments.
According to the complaint, the county pays emergency medical technicians on a monthly pay period that is tied to calendar months and not to a set number of days. It adds that the employees work in 24-hour shifts in an alternating pattern that results in them regularly working anywhere from 48 to 72 hours per week.
Commissioners in October 2012 agreed that beginning Dec. 1, 2012, that overtime pay for Office of Emergency Services' employees would be based on time and a half instead of the complicated fluctuating work week.
But they reversed that decision in December 2012, saying that the county could not afford the $1 million to $1.5 million that would be required annually to pay time and a half.
Commissioners said they had based their original vote on incorrect information by County Manager Lee Smith that the cost would be much lower, around $200,000. Smith said the figure he had used had been how much it would cost per quarter.
Under the pay plan approved by commissioners in April 2013, employees are compensated based on a monthly salary for their scheduled shifts, which makes up their annual salary. An hourly rate is derived by dividing that annual salary by 2,088 hours per year.
The remaining, or extra hours over 40, are then paid at straight time which is equal to their regular hourly rate computed from the above formula.
If the employee on either schedule works an additional shift outside the schedule (filling in for a sick co-worker), that time is also paid at the regular hourly rate.