NYPD Sergeants Not Exempt From Overtime

In Mullins v. City of New York, the canary in a coal mine for a lot of other litigation involving the same issue, the federal Second Circuit Court of Appeals squarely faced the question of whether to defer to the Department of Labor on whether mid-level public safety supervisors were exempt from overtime under the Fair Labor Standards Act. The stakes in the case were high – at issue was the status of more than 4,000 police sergeants working for the New York Police Department. The position of sergeant is the second-lowest rank in NYPD, and sergeants have the following job responsibilities:

“Sergeants are generally involved in activities that include pursuing, restraining, and apprehending suspects. Sergeants interview witnesses, suspects, victims, and vehicle operators. They are dispatched to all arrests in their unit and must respond when directly dispatched. Sergeants are responsible for verifying whether probable cause to arrest a suspect exists. They also verify the target location for search warrants and determine whether a warrant is appropriate based on their judgment and evaluation as to the existence of probable cause. Sergeants secure and determine the size and scope of a crime scene prior to the arrival of the Crime Scene Unit. Sergeants also make the determination as to whether a show-up or line-up identification procedure may be conducted under the circumstances.”

When a trial court dismissed part of the sergeants’ lawsuit and sent the rest of the case to trial under jury instructions that generally adopted the employer’s interpretation of the law, a jury found the sergeants to be exempt. The sergeants then appealed to the Second Circuit.

After oral argument in the case, something unusual happened. The Second Circuit’s panel asked the DOL to weigh in with an amicus curiae (“friend of the court”) brief. The DOL agreed to the request and submitted a letter brief. In sum, the DOL took the position that the trial court badly misinterpreted the post-August 23, 2004 regulations, and suggested that the sergeants had the better half of the argument.

The Second Circuit sided with the sergeants and the DOL. The heart of the Court’s opinion is as follows:
“Contrary to the City’s position, the Secretary’s interpretation does not exceed her statutory authority. The FLSA delegates authority to the Secretary to ‘define and delimit’ the scope of the exemptions from the FLSA’s overtime requirements, and the new regulations were promulgated pursuant to the Secretary’s delegated authority. The Secretary’s interpretation does not articulate an ‘industry specific’ exception by separating out first responders for particular treatment, and even if it did, industry-specific exceptions are not precluded by the text of the statute. Based on Congress’ express grant of authority, the Secretary established the scope of ‘management’ by delimiting that term and excluding certain types of activities that are typically performed by police officers, firefighters, investigators ‘and similar employees.’ The regulation thus focuses on particular types of activities, which are performed generally by front-line responders, rather than on a particular industry.

“Even to the extent that the Secretary’s regulation could be interpreted to treat first responders differently than workers in other industries, the Secretary’s interpretation does not, as the City maintains, depend fundamentally on the location of those activities. That such activities occur ‘in the field’ is not the dispositive element; the Secretary’s reasoned justification is that such activities, when performed by first responders in the course of their front-line duties, do not involve the ‘management of the enterprise in which the employee is employed,’ and therefore should not be deemed ‘management.’”

The Court concluded that the DOL had distinguished between “supervision” and “management,” a distinction it not only found the DOL was entitled to make, but which the Court thought was the correct distinction:
“The Secretary does not, as a result, eliminate the primary duties test in her interpretation of the first responder regulation. While ‘directing operations at crime, fire or accident scenes’ appears, at first blush, to be a type of management that sergeants undertake, when their supervisory activities are viewed within the context of the first responder regulation as interpreted by the Secretary, it becomes apparent that, because these activities form part of sergeants’ primary field law enforcement duties, such supervision is not to be deemed ‘management.’ Even to the extent that the City identifies a tension between the text of the first responder regulation and the primary duties test, this is, at best, an ambiguity that does not preclude deference to the Secretary’s interpretation.

“Addressing that ambiguity, the Secretary argues that certain managerial tasks such as ‘directing operations at crime, fire or accident scenes’ when performed by high-level personnel who typically did not engage in any front-line activities would still be considered ‘management.’ The Secretary’s interpretation is consistent with both the text of the first responder regulation and the bona fide executive exemption and therefore far from clearly erroneous.”

The Court remanded the case to the trial court with instructions to enter judgment in favor of the sergeants and for “additional proceedings not inconsistent with this opinion” (in other words, to calculate the damages owed the sergeants).

This article appears in the September 2011 issue