Lance Vanzant

A recent case out of the U.S. Court of Appeals for the Fourth Circuit gives a detailed explanation of the rules regarding overtime pay for fire and police department personnel. In Morrison v. County of Fairfax, a group of over one hundred current and former fire captains brought suit against Fairfax County for the denial of overtime pay. Under the Fair Labor Standards Act (FLSA), employees who work overtime are generally entitled to overtime pay. The FLSA provides an exception to the overtime pay requirement for those employed in “executive” and “administration” jobs where primary job duties are management related. The U.S. Department of Labor promulgated regulations interpreting the FLSA exemptions for executive and administrative employees. A bona fide executive employee is one who:

  1. Earns at least $455 per week (increased to $913 per week effective December 1, 2016);
  2. Has authority over hiring and firing;
  3. Routinely supervises at least two other employees; and
  4. Whose primary duty is the management of the enterprise in which the employee is employed.

To clarify these “Part 541” regulations as applied to first responders and blue collar workers, the Department of Labor added Section 541.3 which stated in relevant part that “overtime exemptions, do not apply to police officers, . . . . firefighters, . . . . 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; . . . . or other similar work.” And specific to the Fairfax case, the rule stated that “a police officer or firefighter whose primary duty is to investigate crimes or fight fires,” is not exempt under the executive exemptions merely because the police officer or firefighter also directs the work of other employees in the conduct of an investigation or fighting a fire.

In the organizational structure of the Fairfax County Fire and Rescue Department, the position of Captain is five ranks down from the Fire Chief. Nevertheless, Captains were treated as exempt from the overtime pay requirements of the FLSA. While the Captains were responsible for supervising each fire station, they were also required to report to each emergency call that was assigned to the engine for which they were responsible. In fact, the engine could not leave the station without its designated Captain on board. The Court found that the Captains were not exempt from overtime pay requirements in light of the first responder regulations.

Regardless of rank, pay level, or regular supervising responsibilities, if an individual is responsible for fighting fires, they are entitled to overtime pay. In every employment context, it is critical to remember that job title or rank are not dispositive and are sometimes irrelevant in determining an employee’s status under the FLSA. It is critical for an employer to conduct a fact-intensive inquiry into an employee’s actual duties prior to classifying them as an exempt employee.

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