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.