Fire Marshals, Administrative Overtime Exemption, and the FLSA

Today’s FLSA Question: I am the Fire Marshal for a mid-sized fire department. The town considers my position overtime exempt. I have been pressing town hall for an explanation of why my position is classified this way. The HR Director initially told me I was an overtime exempt executive employee. However, I informed him that exempt executives must supervise other employees. I do not. In response, I was told that I am an overtime exempt administrative employee. I am beginning to think town hall is making this up as they go… I spend virtually all of my time conducting commercial and residential inspections, plan review and some public education. I suppose that is administrative work, no?  Does the FLSA allow denying overtime to fire marshals based on the administrative exemption?

Answer: Unfortunately, the FLSA does not contain a bright line rule that requires fire marshals receive overtime. But that does not mean fire marshals are automatically exempt from overtime either. Whether a fire marshal (or any employee) can be a classified as an overtime exempt employee depends on the specific facts and circumstances. However, there are a couple of general FLSA principles and some Department of Labor (DOL) guidance that will help answer your question. 

First General Rule. The FLSA creates a presumption that all employees are entitled to overtime. In the event an employer wants to avoid paying federally mandated overtime—by classifying the employee as overtime exempt—the employer must prove that the employee meets the requirements of the exemption. Therefore, your fire department must prove that your position meets the requirements of one of the FLSA’s overtime exemptions in order to avoid paying you overtime.

Second General Rule. The FLSA and DOL regulations contain numerous exemptions, exceptions, and exclusions from minimum wage and overtime requirements. The most common FLSA exemption applies to bona fide executive, administrative, and professional employees (EAP). These exemptions are frequently referred to as either “white-collar” or EAP exemptions. Each exemption contains specific requirements that must be satisfied in order for an employer to claim that particular exemption for that employee.

For example, in order to classify an employee as an overtime exempt administrative employee, all of the following criteria must be met:

1. The employee must be paid on a salary basis of at least $684 per week.
2. The employee’s primary duty must be performance of office or non-manual office work directly related to the management or general business operations of the employer or the employer’s customers.
3. The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Third General Rule. Whether any employee can be properly classified as a “white-collar” or EAP overtime exempt employee requires a careful examination of the facts. Overtime exemptions are applied on an individual case-by-case basis. For example, a fire marshal in one community may be properly classified an overtime exempt employee, yet a fire marshal in a neighboring community will be entitled to FLSA overtime. It all depends on the facts of that particular situation.

Now, let’s apply the three general rules referenced above to your specific question.

Are you paid on a salary basis? Is that salary at least $684 per week? If you answered ‘yes’ to both of those questions, then the first requirement of the administrative employee exemption will be satisfied.

Next, as the fire marshal, are you required to perform office or non-manual work directly related to the management or general business operations of the fire department? At first glance, one might think many fire marshals would meet this requirement. The non-manual work aspect of the requirement is most likely satisfied, however do the actions of the fire marshal directly relate to the management or business operations of the fire department?

This requires a little more analysis based on your specific role within the organization. Department of Labor regulations require an overtime exempt administrative employee to make high-level decisions related to running the organization. This is typically related to developing policy, budgeting, strategic goals, etc. As fire marshal are you involved in these types of high-level decisions?

The administrative overtime exemption contains one other requirement, which may very well prove a to be a significant hurdle for your department to overcome. Specifically, the administrative overtime exemption requires that the administrative employee exercise discretion and independent judgment with respect to matters of significance.

Generally, discretion and independent judgement requires “the comparison and the evaluation of possible courses of conduct” and “making a decision after the various possibilities have been considered.” Is the interpretation and enforcement of fire and/or life safety code discretionary? As a fire marshal, do you exercise discretion and independent judgement when performing plan review or conducting inspections? Remember, the employer must prove all three factors in order to utilize this exemption.

Finally, DOL regulations found at 29 CFR §541.203 provide examples of various occupations that typically satisfy the “white-collar” administrative overtime exemption. These same regulations also provide examples of various occupations that typically do not satisfy the “white-collar” administrative overtime exemption.  Here is a portion of that regulation:

§ 541.203 Administrative exemption examples.

(j) Public sector inspectors or investigators of various types, such as fire prevention or safety, building or construction, health or sanitation, environmental or soils specialists and similar employees, generally do not meet the duties requirements for the administrative exemption because their work typically does not involve work directly related to the management or general business operations of the employer. Such employees also do not qualify for the administrative exemption because their work involves the use of skills and technical abilities in gathering factual information, applying known standards or prescribed procedures, determining which procedure to follow, or determining whether prescribed standards or criteria are met.

It is important to reiterate; overtime exemptions are applied on a case-by-case basis. Employers need to carefully examine the various requirements of the specific exemption being claimed and compare those exemptions to the actual salary and duties of the employee. There could very well be unusual instances where a fire marshal like yourself meet these requirements. However, that can only be determined after a careful examination of the facts.

When was the last time the HR Director, or anybody from town hall examined your responsibilities and role within the fire department? If you are scratching your head trying to remember the last-time they performed such an audit, I suspect that your local town officials might be shooting from the hip on this one. Best practices require conducting evaluations from time-to-time examining these factors in order to ensure that employees are classified correctly.

The applicability of the EAP overtime exemptions for firefighters and other public safety professionals is one of many topics discussed in-depth at all of our upcoming FLSA for Fire Departments seminars. If you have questions like this one, please consider joining us.