Monday, July 18, 2016

Federal Appeals Court Vindicates First Responder Regulation in Ordering Overtime for Fire Captains

In Morrison v. County of Fairfax, VA, --- F.3d --- (4th Cir. June 21, 2016, No. 14-2308) 2016 WL 3409651, the Fourth Circuit Court of Appeals enforced Fire Captains' right to overtime under the First Responder Regulations of the Fair Labor Standards Act (FLSA).  

Under the FLSA employees who work overtime generally are entitled to overtime pay.  However, public entities that fail to properly pay overtime often argue Fire Captains and Police Sergeants are exempt from the overtime requirements of the FLSA.  The FLSA does provide an an exception, which must be narrowly construed, for certain “executive” and “administrative” employees whose primary job duties are management-related.

The district court erroneously held that Fairfax County fire captains were exempt executives, and entered summary judgment for Fairfax County.  On appeal, the County doubled down arguing some of the Captains are exempt executives while others are exempt administrators.

However, under the First Responder Regulations of the FLSA, the executive and administrative exemptions to the FLSA overtime requirements did not apply to certain firefighters regardless of rank or pay level unless their primary duty was management or directly related to management, applied to fire captains employed by county fire department.

The Department of Labor applies four factors in determining whether exempt duties constitute the primary duty of an employee: [1] relative importance of the exempt duties as compared with other types of duties; [2] the amount of time spent performing 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 nonexempt work performed by the employee. 

The Court ruled that the evidence failed to show that the captains’ primary duty was management related and instead was to respond to emergency calls. First, fire fighting is clearly the more important job when compared to the captains’ exempt duties. Emergency calls take priority and captains do not have discretion to disregard the duty. Second, while captains do have some tasks that are distinct from their first-responder duties, these duties take at most 25 hours out of the working year. Third, the captains’ role is to carry out their supervisors’ orders and are thus in constant contact with their supervisors. And lastly, there was nothing evidencing a significant pay gap between the captains and non-exempt lieutenants just below them. Therefore, the court ruled Fire Captains are entitled to overtime compensation under the FLSA. 


Hopefully this decision will put to rest the boilerplate defense raised in public sector FLSA cases that Fire Captains and Police Sergeants are exempt from the FLSA's overtime protections.  Public safety employees whose primary duty is to investigate crimes or fight fires are not exempt merely because they also direct the work of other employees in the conduct of an investigation or fighting a fire.