In Charlton MA, A Case for Suing Your Current Employer?

July 9th, 2010. By Hunter West

In 2003 Curt Meskus had a long-standing commitment to the Charlton Fire Department as a call firefighter. At any time of the day or night he could be called in to help fight a fire, or help manage some other emergency the fire department might respond to. He would be paid an hourly rate by the fire department, a service provided by the municipality.

Then, seven years ago, Meskus was hired as the Building Commissioner for that same municipality. The latter would be a full-time job v. the on-call, as-needed structure of his fire department gig that he intended to keep.

Why not do both? Months could go by without a whiff of smoke. If he was, indeed called out during regular hours of his building commissioner job, he could always make up the lost time after hours.

Some may say Meskus has initiative. Others might call him greedy—you know, double-dipping*. But no one could argue Meskus’ status as an honest citizen who is completely above-board. When he was hired by the municipal selectmen for the building commissioner job in 2003, Meskus was up-front about his firefighting responsibilities, which he had no intention of abandoning. In fact, Meskus was the assistant call fire chief.

The municipality didn’t appear to have a problem. In fact, Meskus has been re-appointed to the position of Building Commissioner every year since by the municipal selectmen in Charlton, MA, without hesitation or debate.

Then someone complained. Another municipal employee questioned if the arrangement violated the Fair Labor Standards Act (FLSA). It’s a fair question. But the municipality should have already known the answer—as it should have when a local citizen with a history of disputes with Meskus in his role as Building Commissioner took the matter to the Ethics Commission (EC).

That citizen had every right to do so. But the municipality should have already anticipated the outcome, based on having done their due diligence.

Now, it turns out that two agencies are offering divergent views on what to do. The state Ethics Commission (EC) for Massachusetts says that Meskus cannot receive firefighter pay for emergency calls during regular business hours.

But according to FLSA rules it’s okay. “It appears that there are no FLSA violations regarding him holding both positions or by paying him straight time when he answers a fire call as long as he’s a salaried employee,” Town Administrator Robin Craver said in a story appearing July 2^nd in the Telegram & Gazette.

And yet, Meskus says, “the Ethics Commission has made it very clear that I cannot get paid during building commissioner hours by the Fire Department.” Meskus placed the call to the EC himself.

Why did he have to make that call in the first place? Where’s the town in this?

While the debate rages (and has since May), Meskus is not accepting pay for any work he does with the fire department that happens to conflict with his regular hours of work as Building Commissioner—on average about 8 times per year. He could just leave the fire department in the lurch if a call comes in during office hours and not respond, since he isn’t being paid anyway.

But that’s not what Meskus is all about, apparently. He puts community first. And if the department, and by extension the town of Charlton needs him, he’s there and without pay. Temporarily, mind you—but who knows how long this could go on?

And here’s another thing. As long as he continues on in his duties as assistant call fire chief without pay, he is in violation of FSLA.

It’s a classic Catch 22. The trouble is, it shouldn’t be Meskus’ to bear.

Way back in 2003 he was completely transparent about what he wanted to do. He even filed an ethics disclosure with the town clerk in Charlton describing the arrangement.

It was accepted—and has been every year since.

It begs the question—just who is responsible for checking with the various agencies? Meskus? Sure, he could have—but the buck stops with the Town of Charlton. They should have checked to make sure all was kosher with the various agencies prior to accepting the arrangement.

In fact, they should have known all this stuff beforehand. Is it not their responsibility?

The debate is at a stalemate, with one agency saying there’s a problem, while the other claims there isn’t. In the interim, so long as Meskus continues his duties as assistant call fire chief without accepting pay; he is in violation of FLSA, a federal statute.

Serving his community as a firefighter is obviously important to him. Yet is he going to give up a job that pays him $62,000 a year just so he can legally participate with the fire department for a handful of hours each year, at a pay rate of maximum $24.32 per hour?

Someone is going to have to bend. Doesn’t sound like it will be the EC. Meskus could always register a business and have his firefighting earnings directed to it, as opposed to him personally. But somebody would probably find fault with that.

Meskus is in a no-win situation that should have been dealt with seven years ago before he was ever hired as Building Commissioner in the first place. And it’s the town that should have had all their ducks in a row at the time. You can’t expect a job applicant to be up on all the regulations.

That’s the employer’s responsibility.

Meskus’ only recourse, in the end, might be to give up one of his jobs.

After which, he would have every right to sue his employer for putting him in the position to have to make that choice, seven years after the fact.

*Editor’s Note: In case you’re wondering, that ice cream scoop shown above is a Zeroll—a Martha Stewart fave and available at finer kitchen supply stores for about $19.

Tags: Charlton MA, Curt Meskus, Employment, FLSA

This was posted on Friday, July 9th, 2010 at 9:47 am and is filed under Emerging Issues, Employment . Feel free to respond, or trackback. Read our comments policy.