Fire Captains Are Entitled to Overtime

By Randi J. Ensley Aug 3, 2016
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​Fire captains are not exempt from overtime pay requirements.

Fire captains serving as first responders to fires and other emergencies are not exempt from overtime pay under the Fair Labor Standards Act (FLSA), according to the 4th U.S. Circuit Court of Appeals.


One of the protections the FLSA provides employees is overtime pay, or the right to be paid at time and a half for work above the statutory limit, generally 40 hours per week. There are, however, exemptions from this requirement including the so-called white-collar exemption for workers "employed in a bona fide executive, administrative, or professional capacity." Workers falling under the white-collar exemption must, among other things, have as a primary duty either management or administrative work "directly related to ... management." The Department of Labor has further clarified the scope of the exemption as it applies to blue-collar workers and first responders by promulgating the first-responder regulation, which provides that the exemption does not apply to firefighters and other first responders regardless of rank or pay level. Such employees do not qualify as exempt employees because their primary duty is not management or performance of work directly related to management.

The fire captains of Fairfax, Va., are collectively responsible for supervising each fire station, providing emergency fire medical services for each battalion and giving advice on any safety issues that arise. The fire captains are commonly known as "first responders" or are otherwise considered part of the first-response team. They report to every emergency call that comes in during their shifts and go out on every call that is assigned to their engines, while working side-by-side with their subordinates. While captains spend time on tasks that are distinct from their first-response responsibilities, such as completing annual evaluation reports of firefighters, they have no authority to administer discipline without the approval of a battalion or deputy chief. Similarly, captains do not write or disseminate station policies nor do they set or control the budget, hire or fire employees, set minimum staffing levels, change employees' work schedules, or approve overtime.

Over one hundred current and former captains brought suit against their employer for denial of overtime pay. The district court held that the captains were exempt executives under the FLSA. On appeal, the 4th Circuit reversed and held that the captains were entitled to overtime compensation because there was no evidence that the captains' primary job duty was anything other than emergency response.

The appellate court held that the first responder regulation incorporates the well-established primary duty test and that the exemption only applies if the captains' primary duty is management or management-related. Taking into account the character of the job as a whole, the appellate court found no evidence that the captains were covered by the white-collar exemption. The focus of the captains' duties was fighting fires, rescuing victims and administering emergency aid.

Although the captains performed some duties related to management distinct from first response activities and even though the captains spent very little of their time responding to emergency calls, the court nevertheless found that emergency response was the captains' principal and most important duty. It took priority over all other responsibilities, and the captains did not have discretion to decline to respond to emergency calls, the court noted.

In addition, the captains spent a large portion of their time performing nonmanagerial work such as training with other firefighters and eating and sleeping while awaiting emergency calls. Thus, the court concluded the employer failed to show that the captains' primary duty is management or management-related.

Morrison v. County of Fairfax, 4th Cir., No. 14 2308 (June 22, 2016).

Professional Pointer: In determining whether the executive or administrative exemption applies in order to classify an employee as exempt from the FLSA overtime requirements, employers should place emphasis on the characteristics of an employee's job as a whole, including the relative importance of the exempt duties as compared to other duties as well as time spent performing exempt work. Employers should be careful not to focus on the employee's title and duties that purport to be managerial but which are largely ministerial in nature.

Randi J. Ensley is an attorney with Bullard Law in Portland, Ore., a Worklaw® Network member firm.

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