Fourth Circuit Denies Chesapeake Battalion Chiefs the FLSA Protections of the First Responders Regulation

             On December 4, 2020, the United States Court of Appeals for the Fourth Circuit held that Battalion Chiefs (BCs) for the Chesapeake Fire Department were exempt from overtime requirements under the Fair Labor Standards Act (FLSA) because their “primary duties” were to manage the department rather than to act as front-line first responders. (Emmons v. City of Chesapeake (4th Cir., Dec. 4, 2020, No. 19-1755) 2020 WL 7086608.)

            In 2018, a group of seven BCs filed a lawsuit in federal court challenging their classification as overtime exempt employees. The district court granted summary judgement in favor of the Department, concluding as a matter of law that the BCs were executive employees, and thus were exempt from FLSA overtime requirements. The BCs appealed the decision to the Fourth Circuit, and the three-judge panel affirmed the lower court’s decision.

            The FLSA, in relevant part, requires that employers pay their employees overtime whenever they work more than 40 hours a week. However, it exempts workers employed in an “executive, administrative, or professional capacity.” The Department of Labor has promulgated a series of regulations further defining these statutes. The First Responders Regulation (codified in 29 CFR § 541.3(b)) exempts certain workers from the FLSA’s exemptions including police officers and firefighters, provided that their “primary duties” are not managerial. In determining an employee’s primary duty, courts consider the following factors: 1) the relative importance of the exempt duties as compared to other duties, 2) the amount of time performing the 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 non-exempt work performed.

            In considering these factors, the court determined that BCs were exempt managerial employees. The court noted that BCs primarily perform high-level managerial and supervisory duties including making staffing decisions, monitoring and guiding company officers, and making decisions regarding discipline. The court also stated that BCs were not “front-line firefighters,” and even in the rare instances where they responded to an emergency, their job was to “strategize and to command.” The court also noted that BCs were relatively free from supervision. BCs worked 24-hour shifts while their supervisors did not, meaning BCs were unsupervised for most of their time at work. In regards to the fourth factor, the court noted that BCs were paid relatively the same as the next lowest person in the chain on command. However, they found that this fourth factor was not sufficient to overcome the other three.  

            Throughout the Emmons opinion, the court contrasted the BCs job duties with those of fire captains in the previous Fourth Circuit case of Morrison v. County of Fairfax (4th Cir. 2016) 826 F.3d 758. In Morrison, the court came to the opposite conclusion, finding that the fire captains were not exempt workers. The court specifically noted that in Morrison, the fire captains spent their majority of the time in the station and on emergency calls acting as first responders, and had little executive or managerial duties. As discussed above, the same was not true of the BCs in this case.

            The Emmons opinion is concerning for employees in the fire service and their unions because it narrows the protections afforded by the First Responders Regulation.  Thankfully for California Fire Fighters, this Fourth Circuit decision is not binding on the Ninth Circuit Court of Appeals.  However, until the First Responders Regulation or the exemptions are clarified expect California agencies to argue that Ninth Circuit courts should adopt the Emmons reasoning.    

DOL Opinion Letter Addresses Travel To and From the Office When Teleworking

             Due to the COVID-19 pandemic, many businesses have extended teleworking opportunities for employees. Even as businesses begin to reopen, many of these teleworking capabilities are likely to remain in place. Recently, the U.S. Department of Labor (DOL) released an opinion letter that addresses travel time for an employee who chooses to telework for part of the day and work from the office for part of the day. The DOL concluded that under the scenarios raised in the letter, the travel time was not compensable.

            Under a principle of the Fair Labor Standards Act (FLSA) known as the “continuous workday rule”, all time between the first and last principal activity of the day is generally considered compensable work time. Under this doctrine, otherwise non-compensable travel that occurs after the beginning of the employee’s first principal activity, and before the end of the employee’s last principal activity, is covered under the FLSA. Meaning, travel from worksite to worksite is generally compensable while time spent commuting to and from work is generally not. However, the distinction between commute and worksite-to-worksite travel becomes more complicated when considering employees who spend some of their time teleworking.

            In the December 31, 2020 opinion letter, the DOL addresses a number of scenarios in which an employee works from home for part of the day and works in the office for the remainder of the day, with time spent performing certain personal tasks in between. (FLSA2020-19.) For example, in the first scenario, an employee works in the office until 1 pm, leaves to go to her child’s parent teacher conference, and works from home for the remainder of the day. In the next scenario, the employee works from home in the morning, attends a doctor’s appointment, and then works from the office the rest of the day.

            The DOL concluded that the travel time was not compensable because the employee was either off-duty while traveling or engaged in normal commuting. They reasoned that the travel time was not compensable under the continuous workday doctrine because the employee was not required to travel from worksite to worksite as a part of her job. Rather, she was “traveling of her own volition for her own purposes during off-duty time.” When an employee is completely relieved of any duties such that she can use her time effectively for her own purposes, that time is not compensable. Because the employee arranged her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for her own purposes, the reserved time was not compensable even if the employee used some of that time to drive to the office.

            In coming to this conclusion, the DOL relied on a number of court decisions analyzing situations in which employees chose to perform various tasks at home before or after their commute. These decisions relied on the principle that even if the employee chose to do some preparatory or administrative work at home, they were able to schedule their time and could technically wait until they were on-duty to perform these tasks. The DOL quoted the court in Garcia v. Crossmark stating, “It simply cannot be the case that an employee is empowered unilaterally to convert her commute into compensable time merely by deciding to perform her daily routine in a particular manner.” (157 F.Supp.3d (D.N.M. 2015) 1046, 1049-50.)

            Notably, the opinion letter only addresses situations in which the employee chooses or requests to work from home before or after performing a personal errand on uncompensated time. Thus, the analysis will be different for employees who are ordered by their employer to come into the office in the middle of a telework day or ordered to work from home after coming into the office.

 

 

Supreme Court: Federal Officials Subject to Individual Liablility for Violating Right to Free Exercise of Religion

             On December 10, 2020, in a unanimous opinion, the Supreme Court ruled that Muslim men put on the no-fly list in retaliation for their refusal to act as informants for the FBI could sue FBI agents for monetary damages under the Religious Freedom Restoration Act (RFRA).  The RFRA permits litigants to obtain monetary damages against federal officials in their individual capacity for violating the First Amendment right to free exercise of religion. 

            The case, Tanzin v. Tanvir (U.S., Dec. 10, 2020, No. 19-71) 2020 WL 7250100, centered around three Muslim men who claimed that FBI agents placed them on the no-fly list because they refused to act as informants against their religious communities. The individuals were seeking both an injunction and monetary damages for lost income and wasted airline tickets. The defendants claimed that monetary damages were not permitted by RFRA.

            Writing for the Court, Justice Clarence Thomas noted that the plain language of RFRA permits individuals to sue government officials in their individual capacities. Moreover, the Court found that monetary damages were a form of “appropriate relief” permitted by the statute. The Court noted that money damages have long been authorized in American law, dating back to the beginning of the republic. Specifically, the Court pointed to the Civil Rights Act of 1983, which permits monetary recovery against government officials who violate individuals’ civil rights. RFRA, enacted in 1993, is in that tradition and uses the same terminology. The Court concluded by acknowledging that although there may be valid policy reasons to shield government officials from liability, Congress is the one who must create such policies.  

            Although the recent ruling opens government officials to liability, officials are still entitled to assert a defense of qualified immunity when sued in their individual capacities for monetary damages under RFRA. Qualified immunity shields government officials for being held personally liable for money damages for constitutional violations so long as the officials did not violate a “clearly established” right. The Tanzin Court acknowledged, that the FBI agents were still entitled to raise the defense of qualified immunity. (Id. at p. *5, fn. 2.) 

 

Watch David E. Mastagni Testify Against Madatory Personal Liability Insurance Before Select Committee on Police Reform

On December 18, 2020, David E. Mastagni and PORAC PresidentBrian Marvel testified before the California Assembly Select Committee on Police Reform, which is chaired by Assembly Member Mike A. Gipson.  The Committee's stated mission is to "closely examine California's public safety practices and create a new vision with the goal of prioritizing the safety of all members of the public. Broad topics for hearings are expected to include law enforcement hiring and training, as well as options for increasing accountability of agencies and officers to reduce public safety risks."

During their opening statements Mastagni and Marvel outline the ongoing efforts of law enforcement representatives to enact balanced reforms.  Mastagni explained "we have worked tirelessly with the stakeholders and the leadership to modernize use of force legal standards, establish state-wide use of force policy requirements and training, and increase transparency."   Addressing the issue of decertification of peace officers, he stated, "my clients support a licensing revocation process to assist in striking the proper balance that addresses legitimate and shared concerns over bad officers avoiding accountability while maintaining fundamental principles of due process and fairness for innocent officers."   As a matter of due process and thoroughness, we proposed that POST defer its decision until the administrative appeal is complete, providing POST a more complete record to consider revocation and avoiding double jeopardy and inconsistent factual findings and legal determinations. 

At the request of the hearing organizers, he also explained that peace officer disciplinary rights largely mirror the representation rights of all union members, and that due process rights for public employees are mandated by the Constitution.

During the hearing, Deborah Ramirez, Law Professor at Northeastern University, advocated for severely limiting collective bargaining rights and civil service protections for peace officers to eliminate merit-based hiring, promotion and due process protections, which have historically prevented discriminatory or politically motivated employment practices.  Saving the most ill-advised for last, she also advocated for mandating professional liability insurance for peace officers and prohibiting local governments from reimbursing the cost in order to price peace officers out of the profession based on insurance costs.

Mastagni rebutted this end around of due process protections, pointing out that actuarial determined predictions of liability risk, i.e. likelihood of being sued, is a factor that would be primarily driven by the jurisdiction and assignment an officer works.  He cited California's deeply-rooted public policies mandating all employers indemnify employees for liability incurred in the course and scope of their duties.  One of the key flaws with this proposal is that the liability algorithms and actuarial assumptions are not based on an objective analysis of an officer’s conduct, but rather predicted assumptions of potential future liability.

The objective factors that insurance companies use are not well suited for a core government function like public safety because the risk factors will be primarily based on circumstances beyond an officer’s control. These factors are a better predictor of active officers who work dangerous jurisdictions, beats, or assignments, as opposed to a reliable means of identifying bad officers. An insurance mandate would also deter police, Mastagni said, “from rushing to the sound of the gun.”  Applying these factors is against public policy because the officers likely to register as “high risk” are often those involved in the most vital and dangerous calls where a member of the public’s life is on the line and the officer must use force.  The concept is fundamentally flawed in that it essentially abdicates local decision-making authority concerning who should and who should not be a peace officer in a particular jurisdiction to a private, for-profit entity.     

Echoing these concerns, James Touchstone, an attorney for the California Police Chiefs Association, said policing and the medical field are completely different and should not have the same requirements. “It is not comparable whatsoever, in my opinion, to doctors who have time to plan and make a surgical plan, examine a patient multiple times before they're faced with a life-or-death situation,” he said.

The Mission Local correctly noted, "The reactions from Mastagni and Touchstone likely means that any legislation that might establish the insurance would be fought or bargained over fiercely by the unions." (see, "Mandatory professional liability insurance for California police?Lawmakers are interested., December 18, 2020".)

The Testimony of Marvel and Mastagni may be view by clicking the images or links below:

 

David E. Mastagni: https://www.youtube.com/watch?v=nUgbfT6FBUg

 

Brian Marvel: https://www.youtube.com/watch?v=5Laj6kA961w

On December 22, 2020, the Peace Officers Research Association of California, the California Association of Highway Patrolmen and the California Police Chiefs Association submitted a letter articulating the objections raised by Mastagni to the mandatory professional liability insurance proposal.  The linked letter more fully address the legal and public policy flaws infused in this proposal.