Fire Captains Not Exempt Under FLSA

Fairfax County, Virginia treated its fire captains as exempt “executive or administrative employees” under the Fair Labor Standards Act (FLSA), and did not pay them overtime. The captains sued and the case wound up before the federal Fourth Circuit Court of Appeals.

The Court held that the captains were not exempt and were legally entitled to overtime. The Court began with a review of the general law under the FLSA: “As we have recognized, FLSA exemptions, including this one, are to be narrowly construed against the employers seeking to assert them and applied only in instances plainly and unmistakably within the exemptions’ terms and spirit.

“The Department of Labor has promulgated regulations interpreting the FLSA’s exemptions for executive and administrative employees, the two categories at issue in this case. Under the DOL regulations, an ‘employee employed in a bona fide executive capacity’ is one who earns at least $455 per week, has authority over hiring and firing, routinely supervises at least two other employees, and – most relevant here – whose ‘primary duty is management of the enterprise in which the employee is employed.’ The administrative exemption similarly turns on a management-related primary duty: An ‘employee employed in a bona fide administrative capacity’ is one who, in addition to earning at least $455 per week and exercising discretion on significant matters, has as a ‘primary duty’ the ‘performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.’”

In 2004, the Department of Labor enacted significant changes in its exemption regulations. In particular, the DOL issued a new regulation, 29 C.F.R. § 541.3, clarifying the scope of the exemptions as applied to first responders. The DOL’s regulations provide that the exemptions “do not apply to…firefighters and other first responders, regardless of rank or pay level.” In its second and third parts, the regulation explains why: “Such employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise as required, and such employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer.”

The Court found that the County’s captains “spend only a small portion of their time actually fighting fires. Most of their time is spent at the station, and of that time, the single biggest block goes to daily training for their first-response duties. Like all first responders, the captains are required to participate in emergency response training, which takes an average of approximately two hours per shift. Held to the same physical fitness standards as other firefighters, the captains also must undergo daily physical fitness training with their crews to ensure that they are physically able to perform their first-response functions. That physical fitness training consumes an additional two hours or so each day.

“The captains have no authority to administer discipline without the approval of a battalion or deputy chief. But the station and shift commanders are required to report disciplinary infractions up the chain of command and then to administer the discipline decided upon by the higher-ranking officers, tasks which take no more than three hours per year. The EMS supervisors and safety officers have less involvement in discipline. EMS supervisors occasionally take part in inquiries into medical issues and are infrequently ordered to issue discipline. Safety officers occasionally participate in accident review boards but do not decide the appropriate outcome.

“Similarly, while the captains do not write or disseminate station policies, station commanders are responsible for updating station policies on an annual basis so that they conform to updates in County-wide policies. That task takes less than five hours per year. Finally, station commanders and EMS supervisors create ‘wish lists’ of supplies for their stations, accounting for fewer than four hours per year. The captains do not set or control the budget, hire or fire employees, set minimum staffing levels, change employees’ work schedules, or approve overtime.”

Putting all this together, the Court concluded that “a police officer or firefighter whose primary duty is to investigate crimes or fight fires is not an exempt executive merely because the police officer or firefighter also directs the work of other employees in the conduct of an investigation or fighting a fire. That example can be read only as a single illustration of a broader principle, establishing that management-like tasks undertaken in conjunction with, or directly related to, primary first responder duties do not turn a first responder into an exempt executive or administrator.

“We find that no reasonable jury could find, by clear and convincing evidence, that the captains’ primary job duty is anything other than emergency response. The first factor, the relative importance of exempt duties, decidedly falls in the captains’ favor. Whatever the precise importance of the captains’ non-firefighting duties – the evaluations, the disciplinary reports, the annual conforming changes to station policies – it is clear that fighting fires is the more important part of the job. When an emergency call comes in, it takes priority, and the captains do not have discretion to decline to respond. And unlike their superiors, captains are part of the core group of firefighters who are required to respond to a typical call; an engine cannot leave the station without its captain on board.

“The County repeatedly emphasizes that the captains spend very little of their work time actually responding to emergency calls; it follows, the County argues, that first response cannot be the captains’ primary duty. We think this analysis misapprehends both the nature of the ‘time’ factor and the nature of firefighting. That a fire captain’s direct firefighting duties do not consume the majority of his or her time is simply the nature of first response work. Any given day for a firefighter may consist of extended periods of boredom, punctuated by periods of urgency and moments of terror. Second, the regulation directs attention not to the amount of time spent performing non-exempt work like fighting fires, but specifically to ‘the amount of time spent performing exempt work.’ And it will not do simply to assume, as the County seems to on occasion, that the two are inversely correlated – that any time a captain is not on the scene of a fire, he or she is engaged in an exempt managerial task. On the contrary, some of the things firefighters do at the station while awaiting emergency calls, like sleeping and eating, are decidedly non-managerial.”

Morrison v. County of Fairfax, 2016 WL 3409651 (4th Cir. 2016).