In the latest legal twist involving battalion chiefs (shift commanders) and FLSA overtime eligibility, United States Magistrate Judge Lawrence R. Leonard has dismissed an overtime lawsuit filed by seven Chesapeake, Virginia Battalion Chiefs (BCs). The seven BCs filed the suit last July, in the U.S. District Court for the Eastern Division of Virginia, alleging the City of Chesapeake failed to pay them overtime as required by both the FLSA and Virginia Law. Specifically, they claimed the city improperly classified BCs as “white-collar” overtime exempt employees. Click here for more information on the initial filing (from FirefighterOvertime.org) including a copy of the complaint.
As expected, the city argued the BCs were FLSA overtime-exempt “white-collar” employees and were not eligible for FLSA overtime. Section 213(a)(1) of the FLSA and Department of Labor (DOL) regulations provides a complete overtime and minimum wage exemption for bona fide executive, administrative, professional, and highly compensated “white-collar” employees.
But in order for the city to utilize any of the FLSA’s “white-collar” exemptions, the city had to prove two critical points. First, the city had to prove the BCs primary duty—which the DOL defines as the principal, main, major, or most important duty an employee performs—was management of the fire department as opposed to acting as first responders. This is necessary since DOL regulations prohibit first responders being classified as “white-collar” overtime exempt employees. And, second, the city also had to prove the BCs met the salary and duty tests established by DOL regulations related to “white-collar” overtime exempt employees.
In a twenty-eight-page opinion Magistrate Leonard determined as a matter of law (prior to trial) that no reasonable jury could find the BCs were first responders and thus automatically eligible for FLSA overtime. Next, the magistrate analyzed several of the “white-collar” exemptions cited by the city as relevant to defeat the BCs overtime claims. Magistrate Leonard also ruled as a matter of law that the BCs were indeed bona-fide “white-collar” overtime exempt executive and highly compensated employees (HCEs) and thus ineligible for any FLSA overtime.
Magistrate Leonard based his decision on “undisputed facts” presented in the initial pleadings, depositions, and other preliminary evidence gathered during the discovery phase of the lawsuit. It is common in FLSA litigation for both the defendant and the plaintiff to petition the court in an effort to have the case decided before trial. In rare circumstances a judge—or in this case a Magistrate—will grant this request. It is worth noting at this point, these BCs have already filed a notice to appeal this decision before the U.S. Fourth Circuit Court of Appeals.
This is a noteworthy decision for a number of reasons. First, as regular firefighterovertime.org readers are aware, overtime eligibility for battalion chiefs is one of the most hotly debated FLSA topics in the fire service today. There are several lawsuits currently pending across the country involving battalion chiefs and FLSA overtime. There have been surprisingly few legal decisions interpreting the DOL’s First Responder regulations and as a result, both firefighters and fire departments are closely monitoring this line of cases as they develop.
But this decision is also noteworthy because whether any employee is ineligible (or exempt) from the FLSA’s overtime requirement is a legal question of fact. As a general rule, questions of fact are left in the hands of a jury to decide. Typically, an employee’s status as overtime exempt is established through witness testimony and other evidence presented at trial. The jury weighs the credibility of the evidence and makes a decision based on that evidence. Here, Magistrate Leonard made this decision without a jury or most importantly without a trial.
While the magistrate referenced “undisputed facts” and “authoritative case law” as the basis for his decision, there is likely to be some debate regarding how he chose to summarize those facts and interpret relevant case law. Whether or not battalion chiefs in particular are first responders requires a very fact-based analysis. It is likely a battalion chief views his or her role within the department differently from that of city management or even the fire chief.
Specifically, the magistrate found Chesapeake BCs primary duty was “Ensur[ing] the Battalion and its Members are Response Ready” as opposed to acting as First Responders. These BCs are assigned to 24-hour shifts, dispatched to a variety of emergency calls, and primarily direct departmental operations while on-scene. However, Magistrate Leonard found the DOL’s First Responder Regulations inapplicable, since the BCs “do not directly fight fires or engage in hands-on on-scene emergency response; rather, BCs often oversee incidents from their SUV-command vehicle, and strategize, supervise, and direct the actions of personnel and allocation of equipment and resources to most effectively resolve an emergency or crisis situation.”
Magistrate Leonard went on to write: “[w]hile Plaintiffs’ role on-scene is unquestionably crucial to successful emergency response, overseeing, strategizing, supervising, directing personnel, and allocating resources does not constitute “firefighting” as contemplated by the primary duty test or the First Responder Regulation.”
Additionally, Magistrate Leonard drew a comparison between the Chesapeake, BCs and BCs from Battle Creek, Michigan. The U.S. Sixth Circuit Court of Appeals recently upheld a lower court’s decision—a decision reached after a trail—denying overtime claims from two Battle Creek, Michigan, BCs. The court found those BCs were in fact FLSA overtime exempt “white-collar” employees.
Magistrate Leonard noted that the Battle Creek BCs supervisory role on a fire scene was “virtually identical to that performed by plaintiffs” in this case. However, there is one critical distinction that needs to be mentioned. The Battle Creek BCs were not assigned to work 24-hour work shifts. They worked a Monday-Friday work schedule and were required to remain on-call to respond to major incidents during overnight and weekend hours. This is an important factor that should be addressed.
As noted above, the BCs have begun the process of appealing this ruling to the U.S. Circuit Court of Appeals for consideration. If the BCs continue with the appeal it will be interesting to see the approach taken by that court. The court of appeals will likely not conclude whether these BCs primary duty is that of first responders or managers, however the court may weigh in on whether that decision is best left to a jury to decide, or if the facts in this case are so compelling no reasonable jury could find these BCs eligible for FLSA overtime. We will have to wait and see.