The United States Court of Appeals for the Fourth Circuit (covering such east coast states as Virginia, West Virginia, and Maryland) recently held that a group of fire Captains are entitled to overtime under the FLSA because their primary duty is being a first responder.  The case, Morrison v. County of Fairfax, Virginia, was decided June 21, 2016

In Morrison, over 100 current and former fire Captains sued Fairfax County for denial of overtime pay.  The Captains fell into two groups:  (1) Shift Commanders and Safety Officers, and (2) Station Commanders and Emergency Medical Service Supervisors (“EMS Supervisors”).  The trial court granted summary judgment to the County finding that all of the Captains were exempt executives under the FLSA.  In reaching its conclusion, the trial court held that 29 C.F.R. §541.3, the “first responder regulation,” only applied to blue collar workers and did not apply to the Captains.  The Fourth Circuit reversed.

The Fourth Circuit’s analysis is based on the first responder regulation in 29 C.F.R. §541.3.  This regulation was passed to clarify whether the overtime exemptions for administrative, executive, and other white collar employees found in 29 C.F.R. §541 (the “white collar exemptions”) would apply to first responders and manual laborers.  29 C.F.R. §541.3(b)(1) provides that the white collar exemptions “do not apply to … fire fighters … regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims … or other similar work.”  Section (b)(2) goes on to explain that “[s]uch employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed.  Thus, for example, a … fire fighter whose primary duty is to … fight fires is not exempt … merely because the… fire fighter also directs the work of other employees in … fighting a fire” (emphasis added).  The Fourth Circuit determined that under this regulation, whether the Captains are exempt employees depends upon whether their primary duty is management or administrative work directly related to management.  Four factors are considered in determining whether exempt duties comprise the primary duty of an employee:

  1. The importance of the exempt duties compared to other duties;
  2. Amount of time spent performing exempt work;
  3. Amount of freedom from direct supervision; and
  4. Comparison of the employee’s salary and with wages paid to other employees for non-exempt work.

In Morrision, the Fourth Circuit found that the evidence failed to show that the Captains’ primary duty was management-related.  Rather, the Court found that the Captains’ primary job duty was responding to emergency calls.  The Captains lacked discretion to refuse to respond to emergency calls, which take priority over all other aspects of their job.  The Captains respond to every emergency call that comes in during their shift and is assigned to their engine.  “[A]n engine cannot leave the station without its Captain on board.”  At the scene, Station and Shift Commanders work side-by-side with subordinates to fight fires and rescue victims.  EMS Supervisors and Safety Officers also have no discretion to refuse to respond to calls and are responsible for transporting equipment and rendering emergency care at the scene.

Like most firefighters, the Captains only spend a small amount of their time actually fighting fires.  Most of their time goes to training for their responder duties and physical fitness training.  The Court, however, rejected the County’s argument that the Captains were exempt because they spent only a small portion of their time actually responding to emergency calls.  It did so for three reasons.  First, the nature of first-responder work is to wait for an emergency, not only to respond to emergency calls.  Thus, the significant time spent waiting cannot be ignored.  Second, the regulation focuses not on the time spent doing non-exempt work, but on the time spent performing exempt work.  Just because a Captain only spends a small amount of time actually engaged in first responder work does not mean that he or she is spending that remaining time engaged in exempt work.  Third, the Captains’ training, which is the same as all firefighters, is to enable them to perform their first responder work and “underscores the importance of those direct response duties.”

The evidence showed that while the Captains do have some tasks that are distinct from their first-responder duties, such as completing annual evaluations, reporting disciplinary infractions and administering discipline, updating station policies, and creating wish lists of supplies.  The Court reasoned, however, that all of these tasks combined take at most 25 hours out of 2600 hours of work per year.  The Captains also have no responsibility for setting or controlling the budget, hiring/firing employees, setting staffing levels, changing work schedules, or approving overtime.

Nor did the evidence show the Captains were free from direct supervision.  The Captains’ role was to carry out their supervisors’ orders, and they were in constant contact with their supervisors.  Finally, there was no significant pay gap between the Captains and non-exempt Lieutenants just below them in rank.

Application to California Fire Departments:

Morrison is from outside of California and the Ninth Circuit (the federal appellate court covering California), and is not controlling authority in this state.  Nevertheless, it provides guidance on how fire departments in California should consider treating their employees under the FLSA.  For any exempt firefighters, regardless of their rank or pay, the fire department should evaluate whether the employee’s primary duty is to fight fires or act as first responder, regardless of the amount of hours the employee actually spends engaged in those tasks.  In addition, the focus of any inquiry should be the amount of time the employee is engaged in exempt work (such as managerial or other administrative tasks), rather than the amount of time spent being a first responder.  If the primary duty is fighting fires or being a first responder, the employee likely will not be exempt under the FLSA.

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Photo of Alison Kalinski Alison Kalinski

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful…

Alison Kalinski is an experienced litigator representing independent schools and public agencies, including cities, counties, and special districts before state and federal court, arbitrations, and administrative agencies.  She represents clients on claims of harassment and discrimination, whistleblower retaliation, wage and hour violations, wrongful termination, failure to accommodate, defamation, First Amendment, and due process violations from employees.  In addition, Alison defends schools in litigation on student issues, including disability discrimination, failure to accommodate, breach of contract, and defamation claims. Alison has argued before state and federal courts and the California Court of Appeal and has obtained a workplace violence restraining order to protect employees.

Alison Kalinski also regularly advises independent schools, including religious schools, nonprofit organizations, and public agencies in matters pertaining to employment and students. Alison is a trusted advisor to employers in all aspects of employment issues, including the hiring and termination of employees, the interactive process and leave requests, discrimination and harassment issues, assisting with investigations, overtime, and drafting employee handbooks and agreements.  In addition to employment advice, Alison counsels schools on student and parent issues, including bullying, student discipline, accommodating disabilities, enrollment agreements, student handbooks, parent and tuition disputes, and subpoenas. Alison especially enjoys working with schools and nonprofit clients by helping them meet their legal obligations while achieving their mission and maintaining the values of their school and organization.

Alison is also an experienced presenter and regularly trains clients on preventing discrimination, harassment, and retaliation in the workplace, accommodating disabilities in the workplace, mandated reporting, and other employment matters.

Prior to joining Liebert Cassidy Whitmore, Alison practiced as a litigator in the New York City offices of two international law firms before relocating to Los Angeles.  At her prior firms, Alison represented large private employers in class action litigation arising from gender discrimination and wage and hour matters, and obtained a full dismissal of all claims in both actions.

Committed to pro bono work, Alison obtained cancellation of removal under the Violence Against Women Act for a victim of domestic violence and sex-trafficking and obtained asylum for a refugee from Cameroon who was tortured for being a homosexual.

While in law school, Alison served as managing editor of the Tulane Law Review.  Upon her graduation magna cum laude, Alison clerked for the Honorable Steven M. Gold in United States District Court for the Eastern District of New York.  Alison is admitted to practice in California and New York.