FLSA Question: I am a battalion chief in a mid-sized municipal fire department. I command a platoon of firefighters and work 24-hour shifts. I work an average of 56 hours per week. I do not receive any overtime. The city considers myself and other BCs overtime-exempt executives. . . . I recently read that “first responders” are entitled to overtime pay under the FLSA “regardless of rank or pay level.” I also read that some BCs get overtime, while others do not. . .. What is the deal here?
Chief, you have stumbled into the most hotly debated wage and hour issue facing the fire service today: whether first responders can be properly classified as overtime-exempt executives under the Fair Labor Standards Act (FLSA). Here is the short answer to your question. According to Department of Labor (DOL) regulations, first responders cannot be considered overtime-exempt executives. However, whether you, as a battalion chief, can be considered a first responder may be a question of fact that is open to interpretation. Let’s start with a little background.
The FLSA contains numerous exemptions, exceptions, and exclusions. One of the most common FLSA exemptions found in the fire service is the executive exemption. Very often this exemption is referred to as the white-collar exemption. For an employer to classify any employee as an exempt white-collar executive requires a careful examination of two factors: first, the way that employee is paid, and second, that employee’s primary duty. To put it simply, an overtime-exempt executive employee must be paid on a salary basis, and his or her primary duty must be management of the organization or enterprise.
These exemptions are applied on a case-by-case basis and are very fact specific. Job titles alone will not create a white-collar exemption. Employers need to carefully evaluate each employee’s salary and primary duty in order to determine if they meet the requirements of white-collar overtime-exempt employees.
First Responder Regulations
In 2004, the DOL issued regulations entitled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule.” These types of updates are not unusual; however, the 2004 update contained a very important provision, commonly referred to as the First Responder Regulations. The First Responder Regulations make it abundantly clear that first responders are entitled to overtime pay and cannot be considered white-collar overtime-exempt employees “regardless of rank or pay level.” Click here for the DOL Fact Sheet on First Responders.
This determination is rooted in the notion that firefighters’, paramedics’, and other first responders’ primary duty is not management of the enterprise, but instead responding to calls. The DOL makes it crystal clear that—regardless of rank or pay level—if your primary duty is responding to emergencies, you should receive overtime pay.
However, the regulations also provide valuable guidance on instances where certain high-level fire officials can be classified as overtime exempt if certain criteria are met. In particular, high-level fire officials whose primary duty is managing the department, as opposed to responding to emergency calls, can be classified as overtime-exempt executives. The DOL specifically identifies the ability for these officials to exercise “discretion to determine whether and where their assistance is needed” as relevant in making this determination.
This makes sense. A staff chief who typically works in the office handling important business of the department (this may include hiring, budgeting, promotions, strategic planning, and other important managerial tasks) can certainly be considered an overtime-exempt executive. While these officers may respond to calls occasionally, they typically exercise discretion as to whether to respond. Their primary duty is not necessarily responding to calls at this stage of their career.
Unfortunately, that is not the end of the discussion. Courts must interpret these regulations. There have been several instances where courts from various jurisdictions either failed to follow the First Responder regulations or placed greater value in a fire officers’ administrative duties over emergency response activities.
In 2014, the U.S. Eleventh Circuit Court of Appeals upheld a lower court ruling finding that fire suppression lieutenants, officers assigned to a large city’s engine and ladder companies, could be classified as overtime-exempt executives. In this critical case the lower court failed to even acknowledge the First Responder regulations, never mind follow them. The court utilized cases decided before the 2004 regulations were enacted to support its ultimate conclusion. The court found that since the company officers were in-charge of their individual engine and ladder companies their primary duty was management as opposed to responding to emergencies. For more on that decision, click here.
Coincidently, the United States District Court for the Eastern District of Virginia decided a similar case in October of 2014. In that decision, the court found fire captains assigned to engine and truck companies’ overtime-exempt executives. While this court acknowledged the existence of the First Responder regulations, the court wrote those regulations only apply to “blue-collar” firefighters. . . .
Now, fast forward a couple of years. In 2016, the U.S. Fourth Circuit of Appeals reversed this lower court’s ruling regarding fire captains from Virginia. The Fourth Circuit found the fire captains were eligible for overtime pay and should not be classified as overtime-exempt executives. Critical to the Fourth Circuit’s ruling was that this court found the captains’ primary duty was acting as first responders and not as managers of the enterprise. Here the fire captains’ main responsibility or primary duty, was to respond to emergency calls at a moment’s notice. Whatever managerial or high-level administrative task the captain may be performing while on-duty is quickly dismissed when an emergency call is received. For more on that decision, click here.
Most recently, in a highly unusual case out of Washington State, a fire department is suing the union that represents its firefighters, looking for a court to find battalion chiefs and fire marshals overtime-exempt executives. That case began just over a year ago, continues to churn in the federal court system, and does not appear to be close to a resolution yet. For more information, click here.
Where Are We Today?
Did I mention that I believe this to be the most hotly debated wage and hour issue facing the fire service today?
Legal decisions over the executive exemption in the fire service can go either way. There are two important takeaways from this article. First, no two situations are the same, and whether any firefighter, of any rank, can be properly classified as an overtime-exempt executive depends on the individual facts and circumstances of that specific situation. Second, the DOL’s first responder regulations were intended to reduce confusion and debate surrounding overtime eligibility for firefighters and other emergency service workers “regardless of rank or pay level.” However, one could argue that neither of those objectives has been achieved with any uniformity. Nor will they be, if courts continue to deny their existence or skew the facts to match preconceived notions or ideologies.
This is a developing topic. Your situation is not unique. The DOL has very clearly stated that one of the critical factors in determining whether senior fire officers are subject to the First Responder regulations is whether they have “discretion to determine whether or where their assistance is needed.” As a battalion chief, do you have that kind of discretion? The DOL also cites high-level management type activities as consistent with the white-collar executive exemption. As a battalion chief, are you involved in budgeting, hiring, promotions, and strategic planning? Will courts in your jurisdiction even look to the DOL regulations for guidance? The answers to these questions will determine whether you are eligible for FLSA overtime.
Needless to say, I believe the decision that will soon emerge from Washington State may have profound impact on this topic for a great number of firefighters throughout the country. We will have to keep you posted.
As a final thought, I leave you with this point. Brian Massatt, my colleague and co-instructor for the FLSA for Fire Departments seminars, likes to raise the following scenario:
All of the fire department command staff is sitting around a table in City Hall reviewing next year’s budget with the city’s financial officer. Tones drop for a reported structure fire. The folks who are still sitting around that table sixty seconds after the call discussing the line item for fuel purchases are most likely your executives. Everyone who left . . . your first responders.
Pretty valid point. . . .