FLSA Executive Exemption for Company Officers Burning Question

Today’s burning question:  Your book says that officers assigned to a shift are considered hourly employees. I heard the 11th Circuit recently decided a case that says they are not. What gives?

Answer: Would you believe my book is right and the 11th Circuit is wrong? I mean, that is what my professional opinion is after reviewing the applicable law. But let’s take a closer look – and once I get done explaining and you have read the law and the case, you tell me who is right and who is wrong.

The question goes to the heart of the Fair Labor Standards Act. For that let me turn to my resident expert on FLSA issues, firefighter attorney Bill Maccarone. Here is Bill’s take:

The 11th Circuit threw everyone a curveball on December 24, 2014. Unfortunately for the Lieutenants that work in Montgomery Alabama, it was more than just a curveball.

In 2004, the US Department of Labor issued “First Responder” regulations under the FLSA to clarify which firefighters were potentially subject to the Executive Exemption. (i.e. which firefighters were truly salary employees not entitled to overtime). Here is the regulation:

  • 541.3   Scope of the section 13(a)(1) exemptions.

(a) The section 13(a)(1) exemptions and the regulations in this part [regulations governing the executive exemption] do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. …

(b)(1) The section 13(a)(1) exemptions and the regulations in this part also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, 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; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

(2) Such employees do not qualify as exempt executive employees because their primary duty is not management of the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof as required under §541.100. Thus, for example, a police officer or fire fighter whose primary duty is to investigate crimes or fight fires is not exempt under section 13(a)(1) of the Act merely because the police officer or fire fighter also directs the work of other employees in the conduct of an investigation or fighting a fire.

Essentially, firefighters assigned to a shift, actively engaging in firefighting and fire prevention, do not qualify for the executive exemption. Even though the FF may directly supervise a company of firefighters as a Lieutenant, or a station of firefighters and Lieutenants as a Captain, or even are charged with supervising an entire shift of firefighters as a Battalion Chief, they do not qualify for the executive exemption under the 2004 regulations. The regulations were designed to achieve a degree of uniformity in applying the FLSA to first responders throughout the country.

Then came the case of Watkins et al v. City of Montgomery, 775 F.3d 1280 (11th Cir.,2014). Fifty-four “fire suppression lieutenants” from the Montgomery Alabama, fire department filed suit after the city classified them executives. The Lt.’s sought overtime as prescribed under FLSA. The Lieutenant’s work 24 hour shifts followed by 48 hours off duty, on 22 fire companies throughout the city of Montgomery. They command a crew consisting of one sergeant and two fire fighters and worked under 4 district chiefs, which also work the 24/48 schedule.  

One would expect the district court to apply the 2004 first responder regulations to the facts of the case and return a judgment as a matter of law in favor of the fire lieutenants. Somehow the district court found the firefighters were executives, exempt under FLSA. The Eleventh Circuit could have quickly righted the ship and reversed the lower court in favor of DOL first responder regulations, however they ultimately affirmed the lower court’s ruling. Why?

The 11th Circuit failed to even address the First Responder regulations in the ruling. Briefly touching on the fact the lieutenants were claiming overtime pursuant to the first-responder regulations in reciting the travel of the case and again in a foot-note citing the first-responder regulation “not an issue on appeal”, the court side-stepped the issue.

While it is difficult to understand the Court’s reasoning in denying the MFD Lt.’s claims, it is apparent the Court did not follow DOL regulations in reaching its decision. Unfortunately there seems to be an undercurrent in today’s human resource practices that seeks to find loopholes and fine print to undermine the clear intent of both the letter and intent of the law. It is even more disturbing when courts appear to subscribe to this emerging phenomenon and allow these practices to continue.

In the end, it is very apparent through DOL regulations and subsequent case law (from other jurisdictions) that fire officer’s assigned to a shift are in fact hourly employees entitled to overtime under FLSA and not exempt under the executive exemption.

A big thank you to Bill for sharing his perspective!!! Interesting that the 11th Circuit chose Christmas Eve to release this ruling. I am sure it was intended as a symbolic gift to someone… certainly not the Montgomery firefighters and their families.

Here is a copy of the Montgomery decision: Watkins v City of Montgomery

Incidentally, Bill and I will be discussing the challenges associated with the FLSA in our new three-day program, Fair Labor Standards Act for Fire Departments, being held in Las Vegas – February 9-11, 2016, hosted by the Clark County Fire Department. For more information, including $49/night rooms at the Orleans Hotel & Casino, click here.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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