District Court Rules Vista Fire Department Battalion Chiefs Exempt from Overtime

On September 30, 2023, the district court in the Southern District of California granted summary judgment in favor of City of Vista Fire Department and against three Battalion Chiefs for the filed a collective action pursuant to the Fair Labor Standards Act (“FLSA”) alleging the City misclassified them as exempt employees and failed to pay them overtime. The City moved for summary judgment claiming the Plaintiffs qualified as exempt employees under the executive, administrative, and highly compensated employee exemptions of the FLSA. Plaintiffs opposed the motion, arguing the Department of Labor’s “first responder regulation” under 29 C.F.R. § 541.3(b) established a bright-line rule excluding all firefighters from FLSA exemptions.

The court held that the first responder regulation did not categorically exclude all levels of firefighters from exemption. Rather, FLSA exemptions turn on the nature of an employee’s actual primary duties, and as such, the inquiry is highly fact-specific. Here, Plaintiffs spent the majority of their on-duty time performing non-manual office work, including management tasks and “special projects” related to the administration of the Department. Critically, Plaintiffs spent an average of only 1.79% of their total shift time on emergency response. Based on these facts, the court held the Battalion Chiefs were not covered by first responder regulation. The court further held that these Plaintiffs met the three requirements to be exempt under the FLSA highly compensated employee exemption. Therefore, the court granted summary judgment for the City and dismissed the case.

FACTS

The Vista Fire Department Battalion Chiefs’ Duties were Primarily Managerial

A thorough understanding of Plaintiffs’ regular duties is essential to the exemption analysis as it depends on individualized circumstances. As Battalion Chiefs, Plaintiffs ranked third in the Department’s chain of command, under the Fire Chief and two Deputy Fire Chiefs. During the discovery phase of this case, Plaintiffs affirmatively admitted that they spent the majority of their on-duty time performing office or non-manual work including management tasks and administrative “special projects.” In contrast, they spent very minimal time performing emergency response duties.

Management Duties – Plaintiffs oversaw the operations of six fire stations, supervising six Captains (one at each station) and 12 to 24 Firefighter Engineers and Paramedics, including:

• Ensuring adequate staffing to respond to emergencies;
• Checking that no employee worked unauthorized overtime;
• Ensuring Captains were following Department polices and standards;
• Monitoring and evaluating Captains’ performance and issuing disciplinary actions;
• Coaching, counseling, and/or reprimanding lower ranked firefighters;
• Completing annual performance evaluations for Captains, which impacted pay;
• Reviewing Captains’ performance evaluations of lower-ranking members;
• Conducting trainings on effective emergency response and fire suppression operations.

Special Project Duties – each Battalion Chief was assigned non-manual office work necessary for Department operations in one of three areas.

• Records management – ensuring proper recordkeeping of fire incidents; generating summaries for the Fire Chief; learning and training staff on new software.
• Purchasing equipment and supplies – maintaining inventory; purchasing replacements as needed; ensuring all firefighters were adequately outfitted with PPE; tracking access.
• Maintaining fire engines and firefighting equipment - coordinating maintenance and repairs for all fire engines, scheduling testing and repairs for equipment; obtaining necessary certifications required for the firefighters to use their equipment.

Emergency Calls and Fire Suppression Duties – Plaintiffs spent an average of only 1.79% of their total shift time spent on emergency response, and their emergency duties differed significantly from those of the frontline firefighters they supervised:

• They were dispatched to less than 4% of emergency calls;
• They had discretion to add or remove themselves to and from an emergency call;
• When they did arrive on scene, Battalion Chiefs usually did not perform frontline firefighting work. Instead, about 75% of the time they acted as Incident Commander, a managerial role monitoring equipment, surveilling communications, and directing resources and medical personnel where they were needed;
• They were periodically deployed to help other fire stations at larger fires in neighboring areas or to the Strike Team to help in areas further away.

ANALYSIS

The First Responder Regulation Does Not Categorically Bar Firefighters from Exemption

The court first analyzed Plaintiffs’ contention that the first responder regulation at 29 C.F.R. § 541.3(b) creates a bright-line rule that all firefighters are barred from exempt status regardless of the primary duties of their employment. The regulation explains that FLSA exemptions do not apply to firefighters who perform work such as “preventing, controlling or extinguishing fires of any type” because “their primary duty is not management of the enterprise.”

The court found that the first responder regulation does not override the “primary duty test” that is used to determine exempt status. The court explained the plain reading of the regulation clarifies firefighters are nonexempt “if and because their primary duty is direct physical engagement with fires.” The regulation does not state that any worker within the firefighting field is automatically nonexempt. In fact, the preamble of the regulation explicitly states that certain “high-level police and fire officials” could be exempt if their primary duty consisted of “performing managerial tasks.” Therefore, the Battalion Chiefs could not rely on the first responder regulation to claim nonexempt status, and further examination into their primary duties was necessary to evaluate their claims.

The Vista Fire Battalion Chiefs Were Exempt Highly-Compensated Employees

Finding exemption was not barred by the first responder regulation, the court next analyzed whether the Battalion Chiefs qualified for the FLSA highly compensated employee exemption. 29 C.F.R § 541.601. The court found Plaintiffs satisfied each of the three elements as follows:

1) Annual compensation of at least $107,432 annually (at the time of the suit).

2) Customarily and regularly performed any one or more of the exempt duties or responsibilities of an executive, administrative, or professional employee.  Here, Plaintiffs performed executive duties because their “primary duty [was] management of the enterprise,” they regularly directed the work of two or more employees, and their recommendations regarding hiring, firing, and changes in employment status carried weight. See 29 C.F.R. § 541.100(a)(2)-(4). The fact that Plaintiffs were not involved in some personnel duties (i.e., promotions, investigations; labor negotiations; managing budgets, hiring, firing, setting pay levels) did not overcome this relaxed duties test.  

3) Primary duties included performing office or non-manual work. Here, Plaintiffs admitted the majority of their on-duty time was spent on the managerial tasks and non-manual special projects, and only a de minimis amount of on-duty time was spent responding to emergency calls. The Battalion Chiefs’ “principal value” to the employer was in overseeing the operations and personnel of the six fire stations, not on-the-ground firefighting, and they were largely free from direct supervision.

The court frequently referenced two cases that provided guidance in its analysis. In Morrison v. Cnty. of Fairfax, VA, 826 F.3d 758 (4th Cir. 2016), the court found the fire captains were nonexempt because their primary duty was first response. On the other hand, Emmons v. City of Chesapeake, 982 F.3d 245 (4th Cir. 2020),held the battalion chiefs were exempt because they were the brain of the firefighting operation, and their primary duty was management, not frontline firefighting.

CONCLUSION

The court summarized its findings that the Vista Fire Department Battalion Chiefs were “high-level fire officials whose principal mission was to manage fire station operations and personnel to ensure their operational readiness to respond to emergencies.” These managerial primary duties removed Plaintiffs from the first responder regulation. Based on the specific facts of this case, these Battalion Chiefs qualified for the highly compensated employee exemption under the FLSA. Accordingly, Plaintiffs were not entitled to overtime pay and the court dismissed the lawsuit.

Settlement: The "Stipulation with Request for Award"

    

  This blogger greets you again, but with the topic on the most common way to settle your workers’ compensation injury, the “Stipulation with Request for Award”. But what is a “Stipulation with Request for Award” and how does it work?

    A “Stipulation with Request for Award” generally gives you a lifetime medical award (yes, until you die, even if you switch employers, retire, get fired or move out of state). However, medical care is generally limited to treatment in the insurance company’s medical provider network (MPN) subject to denials of care. Your monetary award will be limited to the value of your percentage of permanent disability (PD) which originates from the impairment assigned from the QME or AME which can be further reduced based on apportionment (how much of your disability is from work or is pre-existing or is from non-industrial factors).

    A “Stipulation with Request for Award” generally pays you the value of your percentage of permanent disability in payments of $290.00 per week (for maximum wage earners) until the sum is paid in full. Note, the payments may have started on the “permanent and stationary” date if you were not working at the time of being found “permanent and stationary” by a doctor. If you were working, you would not have received payments beginning on the permanent and stationary date, thus, retro pay may be paid to make you current and to catch up on payments that would have been paid (but were not because you were working). However, there are exceptions to this general rule on when PD payments start.

    Accrued benefits owed to you are generally paid to your attorney first (if you are represented). Sometimes the accrued PD is not enough to pay the attorney fee and in that case the insurance company will borrow money off the back end of your payments to pay your attorney. Borrowing money off the back end of your payments generally involves a 3% interest rate which is much cheaper than interest rates today. Payments to you should continue until the remainder is paid. Then, no further PD money is owed to you. However, there are exceptions to this general rule and in some cases, additional PD payments can occur.

    Why is permanent disability paid in payments? Well, permanent disability is first translated into a number of weeks of payments under Labor Codes §§ 4453 and 4658. Then, the amount paid per week is determined on your average weekly wage multiplied by two-thirds with a minimum permanent disability payment per week of $160.00 and a maximum permanent disability payment per week of $290.00. Put another way, a 12% permanent disability rating that is worth 38.25 weeks of payments, is worth $6,120.00 to a minimum wage earner and $11,092.5 to a maximum wage earner. Through this example, you can see that the same injury to a minimum wage earner is worth less compared to a maximum wage earner. This concept applies to wage loss supplemental pay as well, which we call temporary disability and highlights how the workers’ compensation system regarding indemnity discriminates based on earnings.

    In a “Stipulation with Request for Award,” you can reopen your claim within 5-years of your original date of injury if your injury worsens, thereby seeking an increase in the percentage of permanent disability. Also, within 5-years of your original date of injury, you can seek compensation for a compensable consequence (a consequential injury that would have never occurred but for the original injury). Within 5-years from your original date of injury, you can also use unspent temporary disability pay if a work comp doctor pulls you off work or gives you work restrictions your employer cannot accommodate (but that is rare if a doctor has already deemed you to be “Permanent and Stationary”).

    In conclusion, I hope this information helps you better understand how the most common settlement type (the “Stipulation with Request for Award”) works. However, please beware, much more can be settled, waived, dismissed or released in a “Stipulation with Request for Award” so you must read and fully understand everything that is agreed upon. That is why having a skilled, trained and knowledgeable attorney is important. Having a good attorney can help you secure a good QME or AME to start with and can help you secure proper compensation and medical care. 

    Mastagni Holstedt attorneys have built a track record of success at trial and on appeal in state and federal courts across California. Founded on attorney-client privilege, we have been assisting police officers, firefighters and other safety workers for decades in matters ranging from internal discipline and criminal defense to wage and hour, disability and workers’ compensation claims. If agreed upon, our office can file your claim for you, direct you to treatment, give you the best advice and see you through your injury until the end. This blog is for educational purposes only. This is not legal advice. There is no substitute for competent legal advice tailored to your specific circumstance. 

By Jonathan Drake Char, Esq. 

US Supreme Court Delivers Big Win For Police Officer in Title VII Challenge to Involuntary Transfer

 On April 17, 2023, the United State Supreme Court ruled in Muldrow v. City of St. Louis (2024) 601 U.S. 346 that to prevail in a Title VII suit, an employee must show some harm from a forced transfer, but the harm does not need to satisfy any particular level of significance. The Court held that changes to working conditions such as responsibilities, duties, schedules, and work perks were sufficient to establish an employment disadvantage. 

A St. Louis Police Department Sergeant, Jatonya Clayborn Muldrow, brought suit alleging that the Police Department violated Title VII by transferring her to another position due to her gender. Between 2008 and 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Division commander initiated a transfer of Muldrow out of the unit against her wished, so that she could be replaced with a male officer. The outgoing commander communicated with the new commander that Muldrow was an exemplary sergeant. The new commander testified that he deemed Muldrow’s male replacement to be a “better fit for the Division’s very dangerous work.” Additionally, the new commander repeatedly referred to Muldrow as “Mrs.” rather than “Sergeant.” 

Muldrow’s rank and pay remained the same, but her perks, responsibilities, and schedule changed. After the transfer, Muldrow no longer worked with high-ranking officials on specialized Intelligence Division priorities and instead supervised the day-to-day activities of patrol officers. Muldrow also had her FBI status and access to an unmarked take-home vehicle revoked and her schedule became less regular and included weekend shifts. 

The District Court granted the City summary judgment which was affirmed by the Eighth Circuit because Muldrow failed to show that the transfer caused her a “materially significant disadvantage.” (30 F.4th 680, 688.) Because the transfer had caused “only minor changes in working conditions” and not “a diminution to her title, salary, or benefits,” Muldrow’s suit could not proceed. 

The Supreme Court overruled the Eighth Circuit, holding that the harm required for a challenged transfer under Title VII need not be significant. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such an individual’s sex.” (42 USC § 2000e-2(a)(1).) The statutory language therefore merely required that Muldrow prove some disadvantageous change to an identifiable employment term or condition as a result of the transfer. The statute does not require that the harm be economic or tangible. 

The transferee does not have to show that the harm was significant or exceeded some heightened bar as “discriminate against” means simply to be treated worse on some basis. Nowhere in the statute is there a demand for significant harm, as was required by the Eighth Circuit. 

The City presented three arguments to justify a heightened significance standard: statutory text, precedent, and policy. The Court held that none of these arguments justified the use of such a bar. The Court rejects the statutory text argument because any harm resulting from a discriminatory employment action is united on that basis, making all effects equal regardless of significance. Additionally, past Supreme Court decisions have only imbued a significant harm standard on retaliatory employer actions serious enough to dissuade an employee from pursuing a discrimination charge. Lastly, the Court found it unpersuasive that employees would flood the courts with litigation without a significant harm standard because courts have multiple ways to dispose of meritless claims. Regardless, the Supreme Court refused to add words to the statutory language to "achieve what the City would deem a desirable result.”

This decision provides police officers additional legal basis to challenge an involuntary transfer, even without a direct loss in pay.  The Peace Officers' Procedural Bill of Rights and the Firefighters Bill of Rights guarantee California public safety employees the due process right to appeal any transfer for the purpose of discipline or resulting in the loss of pay.  However, these statutes provide limited protections for non-disciplinary transfers from desirable or career enhancing assignments that are not associated with special assignment pay. 

        As a result of this decision, an employee who is forcefully transferred to a new role because of sex, gender, race, or some other protected basis may challenge the transfer under Title VII even if there is not a direct loss in pay, so long as there was some harm to his or her employment conditions. The employee need not prove that the transfer caused a significant, serious, or substantial adverse effect, only that there was an adverse effect at all.This decision has since been cited by the Ninth Circuit and the Second District Court of Appeal of California.

PORAC Podcast episode drop🎙️ Measure N: Stockton POA Seeks Binding Arbitration

Peace Officers Research Association of California (PORAC) just published its podcast of David E. Mastagni and Stockton Police Officers' Association Vice President Chris Sherman discussing Measure N, a ballot imitative in Stockton to establish interest arbitration as the impasse resolution process in contract negations for Stockton Police and Firefighters.  The initiative was drafted by Mastagni and the POA Board to establish a process that will eliminate prolonged periods where the POA and Fire union are out of contract by empowering an arbitration panel with a representative from the city and the union and jointly agreed upon neutral to promptly establish the terms of a labor agreement based upon the compensation of similar officers and firefighter in their market. The initiative will not cause any taxes to be increased.  

Historically, Stockton's lack of a meaningful impasse resolution process has resulting public safety employees working months or longer without a labor contract.  This in turn cause Stockton's compensation to fall below the market average for months, and has prompted officers and firefighter to leave for higher paying jobs in more stable jurisdictions.  As a result, the Police Department has experienced chronic understaffing and difficulties attracting quality cadets to send to the academy.  Many newly hired officers leave for better opportunities within their first couple of years, converting Stockton into a training ground for surrounding agencies. The understaffing prevents the city from providing the level of safety the citizens of Stockton deserve.

If enacted, this initiative will quell these staffing shortages and restore labor stability to Stockton. Proper staffing is necessary to improve public safety, which is the primary goal of the men and women protecting Stockton.   

In this episode, President Brian Marvel and VP Benjamin T. speak with Stockton POA VP Chris Sherman and David Mastagni with Mastagni Holstedt, A Professional Corporation about Measure N, which would give binding arbitration in their City Charter and could have statewide implications if passed. They explain the measure, what it intends to do, and why it is beneficial.

Listen on your favorite podcast platform or watch on YouTube: https://lnkd.in/gQW32fcP

JUST IN: Newsom Vetoes 4850 Time for Park Rangers

 

            On September 25, 2024, Governor Newsom vetoed Senate Bill 1058, which would have extended 4850 benefits to about 200 park rangers currently employed by cities, counties, and subdivisions of the state. Introduced by Sen. Angelique Ashby, D-Sacramento, the bill would have allowed county and special district park rangers who experience a work-related injury or illness to receive full-pay salary continuation benefits in lieu of temporary disability.

Current law (under Labor Code section 4850) allows law enforcement, firefighters, and probation officers to receive their full pay when temporarily disabled due to a work injury. Ashby and bill supporters claim the new measure would provide rangers with the same benefit enjoyed by other law enforcement officers who perform similar duties and face similar risks. The bill seeks to address these blatant gaps in workers’ compensation and disability protections.

In her bill analysis presented to the Senate Committee on Labor, Ashby noted that park rangers who obtain peace officer’s standards training, among other duties, provide public safety services at California’s parks and other public properties. They are often the first responders for medical, fire, and other emergencies, and part of their duties also entail addressing unlawful homeless encampments, which places the officers at risk of harm.

Ashby highlighted that in Sacramento County alone, park rangers issued 226 parking citations, 138 infractions, made 83 felony arrests and made 62 misdemeanor arrests just in February of 2024. Moreover, some counties rely on deputy sheriffs or police officers to fill their park ranger positions, further emphasizing both the overlap in responsibilities and disparity in protections. The Sacramento County Criminal Justice Employees’ Union, the sponsor of the bill, wrote in support: “Extending these protections to all peace officers employed on a regular, full-time basis…ensures parity across the state and protects many of these frontline workers.”

      In his refusal, however, Newsom, although recognizing the well-intended measure and the important public service rangers provide, noted that the bill “would significantly expand 4850 benefits that can be negotiated locally through the collective bargaining process.” He emphasized that many local governments face financial stress, and the addition of this costly benefit should be left to local governments given the fiscal impact.

           Despite the bill passing unanimously in the Senate and Assembly, bill opponents echo Newsom’s concerns, asserting that: (1) no objective evidence exists to support expanding salary continuation benefits and (2) the cost to local governments remains uncertain given the lack of a fiscal impact evaluation. Although no fiscal impact evaluation exists specifically for this bill (and the bill bypassed the appropriations committee in either chamber of the Legislature), cost projections for other similar bills may lend some insight into the potential costs of SB 1058.

In 2021, the Assembly Appropriations Committee projected that extending 4850 time to firefighters employed by the Department of Forestry and Fire Prevention (AB 872) would cost around $1 million a year. The Senate Appropriations Committee, however, estimated an increase in the “hundreds of thousands of dollars annually” and an "increase in overtime costs that would likely be in the millions of dollars annually.” Newsom similarly vetoed AB 872, again despite its unanimous pass by both Legislature chambers. Newsom again emphasized that such negotiations were best addressed through collective bargaining “where consideration of how best to allocate limited resources for this crucial state function is viewed holistically.”

Newsom’s veto mirrors that of previous Governor Jerry Brown, who vetoed AB 1451 (proposed adding lifeguards in Oceanside to Labor Code section 4850) in 2015. Brown relatedly asserted that public employers’ costs had increased at an alarming rate and that cities, through the collective bargaining process, could consider providing salary continuation benefits to lifeguards.

Many law enforcement associations continue to back the bill, including the Park Rangers Association of California, the Peace Officers Research Association of California (PORAC), and the Sacramento County Deputy Sheriffs’ Association, to name a few.

           The bill is currently sitting in the Senate, with consideration of the Governor’s veto pending. The Legislature can override the Governor’s veto by a two-thirds vote in both the Assembly and Senate. Hopefully, lawmakers will override Newsom’s veto given that the initial vote was more than enough to do so. It has also now been more than a decade since lawmakers have successfully expanded the list of workers eligible to receive salary continuation benefits under Labor Code 4850. Hopefully, that fact, coupled with the importance of providing parity in disability protections afforded to California’s peace officers, will motivate lawmakers to remain committed to expanding these rightfully afforded protections to park rangers.

Newsom’s veto letter can be read here.