No Overtime for Washington State Battalion Chiefs

In what is likely to be the first of several legal decisions involving fire department shift commanders and Fair Labor Standards Act (FLSA) overtime eligibility, eight current and former Vancouver, Washington battalion chiefs (BCs) have lost their bids for FLSA overtime.

This litigation began almost two years ago, after a small group of current and former BCs filed a federal lawsuit seeking FLSA overtime. Up until that time, these BCs were only paid time and one-quarter (as opposed to time and one-half of their regular rate) for overtime hours. Click here, for more on the initial complaint, from Curt Varone’s Fire Law Blog.

Whether high-ranking fire department officers are eligible for FLSA overtime depends on the specific facts surrounding each particular situation. Here a jury was tasked with determining whether these BCs were in fact overtime-eligible first responders or overtime-exempt executive employees. Unfortunately, as this case illustrates, there are few bright-line rules that differentiate between the two.

The City of Vancouver claimed the BCs were FLSA overtime-exempt “white-collar” employees. Section 213(a)(1) of the FLSA and Department of Labor (DOL) regulations provide complete overtime and minimum wage exemptions for bona fide executive employees, as well as some highly compensated “white-collar” employees. But in order to utilize any of the FLSA’s “white-collar” exemptions, the city had to prove the BC’s primary duty (which the DOL defines as the principal, main, major, or most important duty an employee performs) was management of the fire department.

Obviously, the BCs argued the opposite, specifically that their primary duty was acting as first responders, as opposed to management. The distinction of being classified a first responder is essential for any fire officer looking for FLSA overtime. In 2004, the DOL issued regulations found at §29 C.F.R. 541.3 [referred to as the first responder regulations] that clearly exclude first responders from any of the so-called “white-collar” exemptions, “regardless of [their] rank or pay level.” Therefore, if the BCs could prove that they were first responders, they would be entitled to FLSA overtime. For more on the First Responder Regulations and Shift Commanders click here.

At the end of the day—or to be more precise, at the end of a seven-day trial—the jury found the BCs to be overtime-exempt executives. Unfortunately, since this decision was made by a jury as opposed to a judge, there is no written legal opinion that can be analyzed and dissected by FLSA scholars. We will most likely never know which factors the jury found persuasive in denying the BCs’ overtime claims.

Some of the debate during the trial appeared to center around the amount of time BCs engage in management-type activities versus emergency response-type activities. In particular, attorneys representing the BCs argued that the time spent standing by for emergency calls [specifically time spent eating and sleeping] should be considered first responder-type activities. Additionally, these attorneys also claimed time spent training, both as instructors and as students, should also be considered first responder-type activities. Again, it is nearly impossible to determine how the jury reached the ultimate decision denying these battalion chiefs FLSA overtime.

However, it is possible that this decision will have far-reaching repercussions beyond the confines of Washington State. Recently across the country, shift commanders and other high-ranking fire department officers have filed several lawsuits seeking overtime pay under the FLSA. These cases are churning through various jurisdictions, with more decisions inevitable in the coming months. Additionally, many other high-ranking fire officers across the country are anxiously watching these cases develop. Some are looking to see if they too could be eligible for overtime, while some others are wondering if they will be able to continue receiving overtime.

It is entirely possible (if not likely) that these other cases will lead to different outcomes. We could have battalion chiefs in one jurisdiction classified as overtime-exempt executives, while others in a neighboring jurisdiction are overtime-eligible first responders. Only time will tell. We will keep you posted.

For anybody that wants to take the deep dive into this one, here are some of the various motions and objections filed on behalf of the BCs by their attorneys, as well as the instructions given to the jury. Folks with a deep interest in this issue will likely find these documents interesting.

Tracy v. Vancouver Jury Verdict

Tracy v. Vancouver FLSA Jury Instructions

Tracy FLSA Plaint. Objection to Jury Instructions

Tracy FLSA Def. Trial Brief

Tracy FLSA Plaint. Trial Brief

Tracy v. Vancouver Costs Waiver