Are BCs Eligible for Overtime Under the FLSA

Today’s burning question: Are battalion chiefs considered to be exempt executives under the Fair Labor Standards Act and not eligible for overtime?

Answer: That is the key question in a recently filed suit out of Vancouver, Washington. Eight current and former Vancouver battalion chiefs are suing the department claiming they were only paid time and a quarter for the extra hours they worked.

The suit was filed in US District Court for the Western District of Washington on May 31, 2017. It alleges that the battalion chiefs do not qualify as exempt executives because they:

  • do not and have not had the authority to hire or fire employees for the City
  • cannot promote employees, or discipline them
  • suggestions and recommendations as to the hiring, firing, discipline, promotion, or any other material change of status of other employees has not been given particular weight by the Fire Chief or any other decision-maker. Instead, Plaintiffs’ suggestions and recommendations are routinely ignored.

To understand the significance of the above allegations, in order for an employee to qualify as an exempt executive, the employee must meet all of the following:

  • Be responsible for management of the enterprise or a recognized department or subdivision of the enterprise
  • Exercise of discretion and independent judgment with regard to matters of significance (ie does not simply follow established policies but has broad discretion in areas whether there are no policies)
  • Supervises 2 or more employees
  • Have the ability to hire/fire employees, or whose recommendation has particular weight

Besides questions as to whether battalion chiefs are truly “white collar executives” based upon their job duties, a separate issue will be the applicability of the Fire Responder Regulations to chief officers. The First Responder Regulations were enacted by the US Department of Labor in 2004 to help clarify which ranks of police officers and firefighters are eligible for overtime and which could be classified as exempt employees.

The regulations read as follows:

29 CFR § 541.3 Scope of the section 13(a)(1) exemptions.

(a) The section 13(a)(1) exemptions and the regulations in this part do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. Such nonexempt “blue collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees such as medical doctors, architects and archeologists. Thus, for example, non-management production-line employees and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the Fair Labor Standards Act, and are not exempt under the regulations in this part no matter how highly paid they might be.

(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.

(3) Such employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer’s customers as required under § 541.200.

(4) Such employees do not qualify as exempt professionals because their primary duty is not the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as required under § 541.300. Although some police officers, fire fighters, paramedics, emergency medical technicians and similar employees have college degrees, a specialized academic degree is not a standard prerequisite for employment in such occupations.

There have been surprisingly few cases applying the First Responder Regulations since 2004. Pre-2004 the cases were all over the board with some courts finding lieutenants to be exempt executives and others finding deputy chiefs to be hourly employees. It was the inconsistent nature of the pre-2004 decisions that led the DOL to enact the First Responder Regulations.

A recent case out of the 4th Circuit ruled that fire captains were not exempt executives under the First Responder Regulations. Morrison v. County of Fairfax, Va., No. 14-2308, June 22, 2016 (4th. Cir., 2016). That case resulted in a $7.85 Million settlement in favor of the captains. The Vancouver case appears to be the next logical case to consider.

Here is a copy of the complaint: Tracy v Vancouver

More on the story.

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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