District Chiefs in Orlando Not Covered by First Responder Overtime Protections

A federal judge in Florida has ruled that District Chiefs in the Orlando Fire Department do not qualify under the First Responder Regulations as hourly employees, and therefore may qualify as exempt from FLSA-mandated overtime. However, the court declined to find them exempt white-collar employees at this juncture in the proceeding.

The ruling issued yesterday involved 24 shift District Chiefs (DCs) who claimed they were improperly denied overtime pay under the Fair Labor Standards Act. The plaintiffs argued they were “first responders” as defined in 29 C.F.R. § 541.3(b) and thus not subject to the executive, administrative, professional, or highly compensated employee exemptions commonly used to justify salaried positions without overtime.

The court disagreed. While acknowledging that DCs maintain certain field responsibilities—such as serving as Incident Commanders or Safety Officers at emergency scenes—the Court emphasized that the “primary duty” test still governs exemption status. Citing Emmons v. City of Chesapeake and Sullivan v. Sarasota County, the Court found that the primary duties of Orlando’s DCs were managerial. Quoting from the decision:

• Just because Plaintiffs are firefighters on paper, however, does not necessarily mean they are “fire fighters” under the First Responder Regulation.
• That Regulation describes “fire fighters” as those “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 level.
• This case turns on whether a DC’s “primary duty” is “the performance of work directly related to the management or general business operations of the employer” or the work of a first responder.
• If it is that of a first responder, as Plaintiffs argue, the exemptions cannot apply to Plaintiffs and they are entitled to overtime pay.
• If it is that of management or general business operations, then the exemptions can apply, and the Court will have to undertake the exemptions analysis.
• The regulations define a “primary duty” as “the principal, main, major or most important duty that the employee performs.”
• It is Defendant [city]’s burden to show Plaintiff’s primary duty is managerial rather than those of a first responder.

In concluding that the First Responder Regulations do not apply to the Orlando DCs, the court cited the following factors about their responsibilities:

• Made staffing decisions, reviewed payroll, and coordinated leave approvals.
• Oversaw station and equipment readiness and conducted inspections.
• Had discretion over whether to respond to emergency calls, a factor the Department of Labor has cited as indicative of an executive role.
• Did not ride on fire apparatus but responded in OFD-issued pickup trucks outfitted as mobile command posts.
• Supervised an entire district rather than a single firehouse, and operated with relative independence from direct supervision.

After ruling that the First Responder Regulations did not apply to the DCs, the court held that the City failed to carry its burden in proving that the DCs qualified under either the administrative or highly compensated employee exemptions. It is not clear why the court focused on the administrative exception to the exclusion of the executive exemption. For the highly compensated employee exemption, the City stipulated that DCs earned over $107,431—just one dollar short of the regulatory threshold for the highly compensated employee exemption.

While the decision leaves open the question of whether the plaintiffs ultimately qualify for overtime, it forecloses their argument that the First Responder Regulation categorically disqualifies them from exemption. As litigation proceeds, the City will need to provide further evidence to justify its exemption defenses under the remaining FLSA criteria.

The ruling underscores how fact-specific the “primary duty” analysis can be for fire department officers. The title “chief” alone does not resolve FLSA exemption status. The specific responsibilities, which vary greatly from department to department, will ultimately be the key factor.

The next most likely battle in this case will be over whether the DCs have “discretion with regard to matters of significance,” a necessary finding for either the executive or administrative exemptions. Discretion with regard to matters of significance often involved making hiring, promotion, and bonus decisions – factors that often are out of the control of even higher-ranking chief officers but are commonly within the responsibilities of private sector managers. So are common purchasing decisions that in the public sector are relegated to municipal spending regulations that purposefully limit “discretion with regard to matters of significance.”

Here is a copy of the decision: