Duties Are More Important than Titles in Determining Overtime Coverage

Fire department battalion chiefs are managers, not front-line firefighters, and as such are not excepted as first responders from the Fair Labor Standards Act's (FLSA's) exemptions from overtime pay, the 4th U.S. Circuit Court of Appeals decided.

The battalion chiefs sued their employer for noncompliance with the overtime pay requirements of the FLSA. The district court had granted summary judgment in favor of the fire department, finding that the battalion chiefs' primary duty was management.

On appeal, the 4th Circuit noted that the battalion chiefs had extensive in-station duties, including staffing, supervision, administration, budgeting and hiring responsibilities. Each battalion chief was responsible for six or seven company officers and for the 31 to 46 firefighters under them. Each chief worked seven 24-hour shifts every 21 days.

Carrying out their duties required a keen understanding of the firefighters under their command, the operational needs of their battalions and the impact of staffing decisions, the appeals court said. Their supervisory responsibilities included evaluating the performance of firefighters under their command, monitoring the progress of new recruits, making hiring and advancement recommendations to their superiors, and administering or recommending discipline.

In addition to their in-station duties, battalion chiefs also played a significant role in direct emergency response. On average, battalion chiefs were dispatched to one of every 10 emergencies, usually the more complex situations, such as commercial fires, aircraft accidents and flammable liquid spills. They traveled to the scene of emergencies in command vehicles equipped with a radio suite, computers and command boards, the court noted. On the way, the battalion chiefs analyzed data and formulated response plans.

Once on the scene, battalion chiefs coordinated the response to achieve tactical priorities, the 4th Circuit said. Consequently, the battalion chiefs did not typically engage in any hands-on firefighting, such as handling hoses, climbing ladders or entering burning structures.

The battalion chiefs, whose annual pay averaged $98,775, did not receive overtime pay. Captains, who fell immediately below them in rank and received overtime pay, had an average gross pay of $97,980.

The FLSA requires that employers pay their employees at a rate of one-and-one-half time for every hour over 40 worked in a given week. However, exemptions to this general rule narrow its scope to exclude any worker employed in a bona fide executive, administrative or professional capacity.

In addition, an interpretive regulation issued by the Department of Labor (DOL), known as the first responder regulation, excludes certain classes of worker—including police officers, detectives and firefighters—from the FLSA's exemptions. The classes of worker "who perform work such as preventing, controlling, or extinguishing fires of any type; rescuing fire, crime or accident victims; or other similar work," regardless of rank or pay, must be paid overtime.

The regulation states that the listed employees "do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed," the court noted. This presupposes, according to the court, that "the primary duty of each enumerated group is not to 'manage the enterprise' but rather to engage in particular sorts of hands-on activity, such as—in the case of firefighters—extinguishing fires and rescuing fire and accident victims."

Determining the battalion chiefs' primary duty required consideration of four factors:

• The relative importance of the exempt duties as compared with other types of duties.
• The amount of time spent performing exempt work.
• The employee's relative freedom from direct supervision.
• The relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.

Applying the primary duty test to the first and second factors, the court found that the chiefs' exempt, managerial duties greatly outweighed any other nonexempt duties they had. Their management of resources impacted the effectiveness of every battalion member, whether they were personally on the scene or not. Further, their principal role in responding to any emergency was unambiguous: "to strategize and command," the court said.

With regard to the third factor, the court said battalion chiefs were relatively free from direct supervision, noting that their staffing and supervisory decisions were not typically subject to review.

The court found the fourth factor less clear because the average salary of a battalion chief was only slightly greater than the average captain's pay including overtime. However, this final factor did not overcome the first three elements, the court said.

Because the battalion chiefs' primary duty was not front-line firefighting but managerial, the first responder regulation did not pre-emptively exclude the battalion chief position from the executive exemption, the court concluded. Ruling that the battalion chiefs, as executive employees, were not due overtime pay under the FLSA, the appellate court affirmed the lower court's judgment.

Emmons v. City of Chesapeake, 4th Cir., No. 19-1755, (Dec. 4, 2020).

Professional Pointer: In determining whether a first responder is entitled to overtime pay under the FLSA, courts are likely to focus closely on the question of an employee's primary duty. Even the DOL's first responder regulation—which excludes certain public employees from the FLSA's overtime exemptions for executive, administrative or professional employees—is premised on the employee being engaged in hands-on rescue work rather than management of the operation.

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.