By Ronald Miller, J.D.
Concluding that no reasonable jury could find by the requisite clear and convincing evidence that fire captains who served as first responders to fires and other emergencies fell within the executive or administrative exemptions from the FLSA’s overtime requirement, the Fourth Circuit reversed a district court’s judgment and remanded with instructions to enter summary judgment for the captains. Because the employer did not submit any evidence to allow a finding that the captains’ primary duty was anything other than first responders, they were not exempt executives or administrators, and are entitled to overtime compensation under the FLSA (Morrison v. County of Fairfax, Virginia
, June 21, 2016, Harris, P.).
The question raised in this case was whether the fire captains, firefighters who served as first responders to fires and other emergencies, fell within an exception to the FLSA so that they were not entitled to overtime compensation. Among the protections the FLSA provides employees is overtime pay, or the right to be paid at time and a half for work above the statutory limit, generally 40 hours per week. However, there are exemptions from this requirement, including the so-called "white collar" exemption for workers "employed in a bona fide executive, administrative, or professional capacity." Such exemptions are to be narrowly construed against the employer.
First responder regulation.
In 2004, DOL proposed changes to its "Part 541" regulations governing the white collar exemptions, generating concerns that first responders and manual laborers would become exempt employees and lose their right to overtime pay. In response, the DOL promulgated a new regulation, 29 C.F.R. Sec. 541.3, clarifying the scope of the exemptions as applied to blue collar workers and first responders. Subsection (b) of the "first responder regulation" provides in its first part that the Part 541 exemptions "do not apply to . . . fire fighters" and other first responders, "regardless of rank or pay level."
Under the hierarchy of the Fairfax County Fire and Rescue Department, the fire captains were five ranks down from the fire chief, reporting directly to battalion chiefs. Fire captains, along with positions above that rank, were treated as exempt from the overtime pay requirements of the FLSA. Captains were divided into two groups. The "Captain I" group includes Shift Commanders and Safety Officers, and the "Captain II" group includes Station Commanders and Emergency Medical Service Supervisors ("EMS Supervisors").
For every 24-hour shift, a Station Commander or Shift Commander is responsible for supervising each fire station; an EMS Supervisor is responsible for the emergency medical services for each "battalion," or geographic region; and a Safety Officer is assigned to one or two stations, providing advice on any safety issues. Station and Shift Commanders are commonly known as "first responders." They report to every emergency call that comes in during their shifts and is assigned to their engines. They work side-by-side with their subordinates. EMS Supervisors and Safety Officers also are part of the first-response team. They also have no discretion as to whether they will respond to calls.
While captains spend time on tasks that are distinct from their front-line responsibilities, such as completing annual evaluation reports on firefighters, they have no authority to administer discipline without the approval of a battalion or deputy chief. Similarly, captains do not write or disseminate station policies. Further, they do not set or control the budget, hire or fire employees, set minimum staffing levels, change employees’ work schedules, or approve overtime.
Application of first responder regulation.
In January 2014, over a hundred current and former captains brought suit against the employer for the denial of overtime pay. After discovery the parties filed cross-motions for summary judgment. The district court held that all fire captains were exempt executives, and entered summary judgment for Fairfax County. The district court held the first responder regulation inapplicable to the captains, on the ground that it addresses only "blue collar" firefighters. On appeal, the employer took a different approach, arguing that some of the captains are exempt executives while others are exempt administrators.
The Fourth Circuit began its analysis with the first responder regulation. Here, the employer did not dispute that the captains qualified under the first paragraph of Section 541.3(b) as "fire fighters" who "perform work such as preventing, controlling or extinguishing fires." The appeals court concluded that the district court erred in conflating the first subsection of the regulation, addressing "blue collar" and manual laborers, with the second, covering first responders. The court found that there was no basis for treating the two subsections as overlapping. Rather, it noted that the separate subsections are clearly delineated, with the first providing that the exemptions in question do not apply to blue collar employees, and the second that the exemptions "also do not apply" to first responders. Thus, the first responder regulation applied to this case.
"Primary duty" standard.
Nevertheless, the parties did agree that under the first responder regulation whether firefighters are exempt executives or administrators is governed by the "primary duty" standard, under which the captains are exempt if (and only if) their primary duty is "management," or administrative work "directly related to . . . management." Like the Second Circuit in Mullins v. City of New York
, the Fourth Circuit deferred to the Secretary’s interpretation of his agency’s regulation. Thus, the court found that reading the first responder regulation to incorporate the well-established primary duty test did not render the regulation meaningless.
Clear and convincing evidence.
Thereafter, the appeals court found that the record did not contain evidence from which a reasonable jury could find that the employer had met its burden of showing, by clear and convincing evidence, that the captains were covered by the Part 541 exemptions. Rather, taking full account of the character of the employees’ job as a whole, there was no showing that the captains’ primary job duty was anything other than emergency response. First, although captains had certain administrative duties, it was clear that fighting fires was the more important part of the job. The court pointed out that although the captains spent very little of their time responding to emergency calls, it was illogical to give much weight to how much time a captain devoted to answering emergency calls. The nature of the job was that a fire fighter’s day may consist of extended periods of boredom, punctuated by periods of urgency and moments of terror. At any rate, the employer produced no evidence of how much time the captains spend performing exempt management work. Accordingly, the captains were entitled to summary judgment on their claim for overtime compensation.