Lately, it seems that a week cannot pass without a complaint, settlement, or ruling pertaining to first responders being classified, or misclassified, under the FLSA’s “white-collar” exemptions.
Here are just a couple of recent examples:
- Florida Battalion Chiefs File FLSA Suit
- Virginia Battalion Chiefs File Lawsuit Seeking Overtime Pay
- California City and Firefighters Reach Global Settlement following a 2016 FLSA Lawsuit
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.
The latest overtime claim comes from a former Division Chief for the Monrovia, California, Fire Department. Retired Division Chief Ronald Pelham alleges the city failed to pay overtime for many of the hours he worked in violation of the FLSA. While Pelham’s claim for overtime is not unique, the allegations made in the complaint are.
The vast majority of overtime claims by shift commanders and senior fire department officers center around their responsibilities as first responders. According to the Department of Labor, first responders are eligible for overtime regardless of rank or pay level.
But, whether shift commanders or senior fire officers can be classified as first responders, as opposed to managers of the organization, can require a rather subjective test. Much of the debate surrounding first responders and overtime centers on this subjectivity. As a result, different courts have reached different opinions on whether shift commanders and other senior level fire department officers are entitled to FLSA overtime. For more on that click here.
Here, Chief Pelham, through his attorney makes a slightly different claim. Chief Pelham’s primary allegation is that the city cannot classify him as a “white-collar” employee because he is not paid on a salary basis which is one of the core requirements of the “white-collar” overtime exemptions.
Department of Labor regulations found at 29 CFR §541.602 define “salary basis” as it applies to “white-collar” exemptions:
- 541.602 Salary basis.
- (a)General rule. An employee will be considered to be paid on a “salary basis” within the meaning of this part if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.
If proven, this factor alone will most likely defeat the city’s ability to treat Chief Pelham as an overtime exempt “white-collar” employee. As a result, he would most likely be eligible for overtime.
Chief Pelham is seeking back wages for the past three years, an equal amount of liquidated damages, and attorneys’ fees. Here is a copy of the complaint.