Three Newton County, Georgia Battalion Chiefs (BCs) have filed a federal lawsuit claiming the County’s Fire Department fails to pay them overtime in violation of the FLSA. Battalion Chiefs Bobby Cagle, Brian Massey, and Ralph “Trey” Stewart III filed the lawsuit in the U.S. District Court for the Northern District of Georgia, on November 27, 2019. Specifically, the three BCs allege the county changed their pay status to overtime exempt in July of 2018. Prior to that date BCs received FLSA overtime. The trio estimate each is losing out on several thousand dollars of FLSA overtime per year as a result of the new pay policy.
This lawsuit is the latest of several pending and resolved lawsuits that involve battalion chiefs (and other shift commanders) challenging their employer’s classification as “white-collar” overtime exempt employees. Whether a battalion chief can be properly classified as an overtime exempt employee hinges on the specific facts involved. This means that a battalion chief in one fire department may meet the requirements of a “white-collar” overtime exempt employee, yet the neighboring communities battalion chiefs do not.
Generally speaking, the analysis in which any court will rely upon to determine whether a battalion chief, or any high-ranking fire department officer is a “white-collar” overtime exempt employee relies on two key factors. First, the way and amount the officer is paid, which is referred to as the “salary test.” And second, the duties that the officer performs, which is referred to as the “duties test.”
In the majority of circumstances involving high-ranking fire officers, the employer—i.e. fire department—can easily satisfy the salary portion of the equation. However, the real challenge lies in satisfying the second factor. In order to deny a fire officer overtime under the “white-collar” overtime exemption, a court must find that his or her primary duty, their principal, main, or most important duty they perform is acting as a manager and not as a first responder. This is necessary because Department of Labor (DOL) regulations prohibit an employer from treating first responders as “white-collar” overtime exempt employees. In fact, the DOL’s First Responder Regulations clearly state that first responders are entitled to overtime “regardless of rank or pay level.”
Needless to say, this is and continues to be one of the most hotly debated FLSA topics in the fire service today. We will be watching this one closely as it develops. Stay tuned for updates. Here are some of the specific allegations made by the Newton County BCs from their complaint:
- Prior to July 1, 2018, Defendant had classified Battalion Chiefs as non-exempt and entitled to overtime pay for all hours worked in excess of 106 in a fourteen (14) day work period.
- Effective July 1, 2018, Defendant reclassified each Plaintiff Battalion Chief as exempt from FLSA’s overtime pay requirements.
- Effective July 1, 2018, each Plaintiff Battalion Chief was paid on a salary basis as defined by 29 C.F.R. § 541.602.
- As a result of the Defendant’s reclassification of Plaintiff Battalion Chiefs as exempt from the FLSA’s overtime pay requirements, each Plaintiff has suffered and will continue to suffer a substantial decrease in pay of several thousand dollars per year.
- Despite Defendant’s reclassification of Plaintiff Battalion Chiefs as exempt from the FLSA’s overtime pay requirements, the primary duties of each Plaintiff have remained unchanged from when they were each classified as non-exempt.
- The Newton County Fire and Rescue Department employs approximately 66 sworn firefighters of various rank and operates seven fire stations.
- The Newton County Fire Department employs three (3) Battalion Chiefs, with one (1) Battalion Chief on duty at any given time.
- As a Battalion Chief, each Plaintiff is stationed at and is assigned to a fire station (Station 1).
- As a Battalion Chief, each Plaintiff works a shift of twenty-four (24) hours, followed by forty-eight (48) hours of being off duty, which is the same work schedule as all other firefighters.
- As a Battalion Chief, each Plaintiff regularly is scheduled to work, and does in fact work in excess of 106 hours in any given fourteen (14) day work period.
- Defendant classified each Plaintiff Battalion Chief as wholly exempt from the FLSA’s overtime pay requirements effective July 1, 2018 and has not paid each Plaintiff for hours worked in excess of 106 hours in any given fourteen (14) day work period since July 1, 2018.
- As a Battalion Chief, each Plaintiff was trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, is employed by a fire department of a County and is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
- As a Battalion Chief, each Plaintiff’s primary duty is to fight fires, rescue fire and accident victims and minimize property damage from accidents and fires.
- Defendant has adopted policies which set forth, among other things, the types of calls that Plaintiffs, as Battalion Chiefs, are required to respond.
- As Battalion Chiefs, each Plaintiff is required to respond to the following types of emergency calls: all fire, all car accidents with injuries, all rescue calls, all stabbing and shooting victim calls, all hazardous material calls, all water rescue calls, all bomb threat calls, all drowning calls, all hazmat level 2 calls, all hazmat level 3 calls, all motor vehicle accident commercial, all motor vehicle accident with entrapment calls, all motor vehicle on interstate with entrapment calls, all aircraft down calls, all technical rescue calls, all train derailment and all train engine or car fire calls.
- While each Plaintiff would direct the work of other firefighters and rescue personnel at the scene of the calls to which he responded, each Plaintiff also performed the work of fire extinguishment and rescue of accident victims.
- As a Battalion Chief, each Plaintiff is expressly defined as ineligible for exempt employee status pursuant to 29 C.F.R. § 541.3(b), known as the “First Responder Regulation.”
- Each Plaintiff also regularly performed work while not on shift and for which Defendant did not maintain accurate time records. Such work includes, but is not limited to attending training and meetings on days which they were not otherwise scheduled to work.
- Other regular work performed by each Plaintiff on days each was not scheduled to work and for which Defendant did not maintain accurate time records included finding replacement firefighters and other personnel to fill-in for employees who called in sick or to address other manpower shortages.
- Defendant has failed to meet the requirements of any exemption from the overtime pay requirements of the FLSA for any Plaintiff from July 1, 2018 to date.
- As a Battalion Chief, each Plaintiff is required to be compensated at a rate of one and one half times his regular hourly rate for each hour worked in excess of 106 in any given 14-day work period.
- Defendant knew or should have known that the FLSA applied to each Plaintiff and that no exemption from the overtime pay requirements of the FLSA existed.
- Upon information and belief, in failing or refusing to pay each Plaintiff overtime wages as required by the FLSA, Defendant has not relied on any letter ruling from the Department of Labor indicating that Plaintiffs, as Battalion Chiefs whose primary duty was that of a first responder, was subject to any exemption from the overtime pay provisions of the FLSA.
- Upon information and belief, in failing or refusing to pay each Plaintiff overtime wages as required by the FLSA, Defendant has not relied on any legal advice indicating that each Plaintiff, as a Battalion Chief, was subject to any exemption from the overtime pay provisions of the FLSA.
- Defendant’s conduct constitute willful violations of §§ 207 and 215 of the FLSA, entitling each Plaintiff to all relief afforded under the FLSA, including the award of liquidated damages and reasonable costs of litigation and attorneys’ fees.
Here is a copy of the complaint.