Labor & Employment Law Daily City fire department ‘Battalion Chiefs’ were exempt from overtime, not first responders
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Tuesday, December 8, 2020

City fire department ‘Battalion Chiefs’ were exempt from overtime, not first responders

By Ronald Miller, J.D.

An employee is not a “fire fighter” under the First Responder Regulation merely because the words “fire fighter” appears in his job title, or because he happens to be employed by a fire department.

Finding that Battalion Chiefs were first and foremost managers within a municipal fire department, not frontline firefighters, the Fourth Circuit ruled that they were not categorically excluded from the FLSA’s system of exemptions as first responders under 29 C.F.R. § 541.3(b). After finding that the Battalion Chief’s staffing and supervisory duties constituted exempt managerial work, the appeals court observed that their response vehicles come outfitted with computers, control boards, and a radio suite, and they were expected to remain in the command vehicle and assume command of a typical response. Thus, applying the law of the executive exemption to the undisputed facts on the record, the appeals court determined that the Battalion Chiefs fell within its scope (Emmons v. City of Chesapeake, December 4, 2020, Wilkinson, H.).

Hierarchy. The City of Chesapeake Fire Department consists of 449 employees spread across five operational divisions. Sixteen employees within the department hold a chief officer position, including 16 Battalion Chiefs. The command structure allocates between three and four Battalion Chiefs to each of the CFD’s three fire battalions. Each battalion consists of five fire stations and their personnel. Additionally, each Battalion Chief bears responsibility for between six and seven Company Officers and, indirectly, for the 31 to 46 firefighters under them. Each Battalion Chief worked seven 24-hour shifts every 21 days.

Responsibilities. Battalion Chiefs are responsible for staffing, supervision, administration, budgeting, or hiring. Staffing duties require close attention to shifting leave schedules and to variations in operational needs and operational readiness. Battalion Chiefs also review and decide on requests for leave. A Battalion Chief’s supervisory responsibilities consist of evaluating the performance of the firefighters under his command, training them, and, when necessary, administering or recommending discipline. They also meet regularly with Company Officers to discuss emergency responses; to identify areas of strength and weakness; and to provide the “coaching and feedback” necessary for improvement. Additionally, they exercise disciplinary authority and make hiring and advancement recommendations to their superiors.

Battalion Chiefs have a role to play in the CFD’s direct emergency response. A Battalion Chief’s position authorizes him to exercise discretion over dispatches. The Battalion Chief does not typically engage in any hands-on firefighting, such as handling hoses, climbing ladders, or entering burning structures.

Like all other chief officers, Battalion Chiefs did not receive overtime pay. In 2018, they filed suit under the FLSA and Virginia Gap Pay Act for unpaid overtime and gap wages. A district court granted the CFD’s motion for summary judgment, finding that management, not first response, was the primary duty of the Battalion Chiefs. Accordingly, it determined that they were not excluded from the executive exemption to the FLSA’s overtime requirement. This appeal followed.

First Responder Regulation. At the center of this case about whether Section 213(a)(1)’s executive exemption covered the Battalion Chiefs was interpretive regulation 29 C.F.R. § 541.3(b)—the First Responder Regulation. The First Responder Regulation categorically excludes certain classes of worker from the FLSA’s exemptions. However, an employee is not a “fire fighter” under the First Responder Regulation merely because the words “fire fighter” appears in his job title, 29 C.F.R § 541.2, or because he happens to be employed by a fire department. Section 541.3(b)(1) presupposes that the primary duty of each enumerated group is not to “manage[] the enterprise” but rather to engage in particular sorts of hands-on activity.

Primary duty. Determination of an employee’s primary duty “must be based on all the facts in a particular case,” and must focus on the substance of his work as performed in practice. Under 29 C.F.R. § 541.700, an employee’s primary duty includes consideration of the following four factors: “[1] the relative importance of the exempt duties as compared with other types of duties; [2] the amount of time spent performing exempt work; [3] the employee’s relative freedom from direct supervision; and [4] the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.”

Under 29 C.F.R. § 541.102, the staffing and supervisory duties that the Battalion Chiefs perform in-station constituted exempt managerial work. As for matters touching directly on emergency response, the uncontested facts showed that the Battalion Chiefs were not frontline firefighters. Their response vehicles come outfitted with computers, control boards, and a radio suite. They were expected to remain in the command vehicle and assumed command of a typical response.

Applying the primary duty test with this understanding of the Battalion Chiefs’ managerial duties in mind, the appeals court found that they were uniquely situated in the CFD command structure. They were the only officers capable of discharging the necessary staffing and supervisory duties both effectively and efficiently. Moreover, the amount of time they spent performing exempt work also militated in favor of treating Battalion Chiefs’ primary duty as managerial. Further, because Battalion Chiefs were the only chief officers that worked 24-hour shifts, they were effectively without supervision for much of the time they spend on the job.

Although the pay ranges between Battalion Chiefs and a CFD captain overlapped, the appeals court nevertheless determined that this factor was not sufficient to overcome the combined force of the first three factors. Accordingly, the appeals court concluded that the primary duty of the Battalion Chiefs was not frontline firefighting, but management.

As a consequence, applying the law of the executive exemption to the undisputed facts on the record, the appeals court determined that the Battalion Chiefs fell within its scope, and so were exempt from overtime pay.

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