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.
