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Employment & Labor Law for Public Safety Agencies
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F.L.S.A. - Administrative & Executive Exemptions
Monthly Law Journal Article: Overtime Pay Entitlement for Public Safety Employees Under the Fair Labor Standards Act (FLSA), Part 1, 2016 (9) AELE Mo. L. J. 201.
Battalion chiefs in a fire department had responsibility for many administrative tasks. They lacked authority to make direct hiring and firing decisions but conduct performance evaluations and approved vacations. Their suggestions and recommendations on hiring, firing, advancement, or promotion were given “particular weight” They were also required from time to time to serve on “standby” duty and be “on call” from 5:00 p.m. until 8:00 a.m. the following morning for seven days. They sued, asserting claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, seeking overtime. The plaintiffs received 1.5 hours of pay for each day of standby duty, plus overtime pay for hours worked if they were called back to active duty while on standby. The person on standby duty was required to monitor a pager and a radio, answer phone calls, and help handle problems. They were sometimes required to respond to the scene of a fire while on standby duty. A federal appeals court upheld a determination that the plaintiffs were exempt from the FLSA’s overtime pay requirement under the “executive exemption.” There was “ample” evidence that their primary duty was managerial. Holt v. Battle Creek, #18-1981, 2019 U.S. App. Lexis 16561, 2019 Fed. App. 0114P (6th Cir.).
Current and former county fire
captains filed suit under the Fair Labor Standards Act (FLSA), 29 U.S.C.
201-219, claiming that they were entitled to overtime pay. The appeals court
rejected an argument that the plaintiffs fell within the FLSA' s exception for
certain executive and administrative employees whose primary duties are
management-related. The county failed to submit evidence that would permit
reasonable jurors to find by clear and convincing evidence that the plaintiffs'
primary job duties were anything other than first response to emergencies such
as fires. The captains, therefore were entitled to overtime compensation.
Summary judgment for the plaintiffs was ordered. Morrison v. County of Fairfax,
VA, #14-2308, 2016 U.S. App. Lexis 11211, 166 Lab. Cas. (CCH) P36450, 26 Wage
& Hour Cas. 2d (BNA) 1103 (4th Cir.).
A federal appeals court upheld a jury verdict for
a city in an overtime lawsuit under the Fair Labor
Standards Act (FLSA), 29 U.S.C. 207(a) brought by fifty-four fire suppression
lieutenants. The city raised an affirmative defense under the executive
exemption to the overtime provisions, and judgment as a matter of law for the
plaintiffs was properly denied because a reasonable jury could find, based on
the evidence, that each category of disciplinary suspensions and deductions was
permissible as falling under either a workplace conduct rule or a safety rule of
major significance. The plaintiffs' proposed instructions on wait time, which
the trial court declined to give, was not an accurate statement of the law.
Watkins v. Montgomery, Alabama, #13-11718, 2014 U.S. App. Lexis 24416 (11th
Cir.).
The professional duties of police sergeants did
not make them management, and did not make them qualify for the bona fide
executive exemption of the overtime pay provisions of the Fair Labor Standards
Act, 29 U.S.C.S. § 207(a)(1). Summary judgment for the defendants on the
sergeants' overtime pay claims, therefore, was reversed. Mullins v. City of New
York, #09-3435, 2011 U.S. App. Lexis 16132 (2nd Cir.).
Port Authority helicopter pilots are not exempt
from overtime pay provisions. Pignataro v. Port Auth. of NY-NJ, #08-3605, 593
F.3d 265, 2010 U.S. App. Lexis 1840 (3rd Cir.).
Labor Dept. issues opinion that exempt employees
cannot be docked for lost or broken equipment (including laptops and cell
phones) and that exempt workers who fail to make up part of a personal absence
on a workday cannot be disciplined. Wage and Hour Opinion Letter, FLSA2006-7.
[2006 FP Jun]
DoL rules that police lieutenants, police
captains, and fire battalion chiefs are exempt from overtime under the Fair
Labor Standards Act because their primary duty is management, even though they
do not make the ultimate decisions on hiring and firing. Wage & Hour Opin.
Ltr. # FLSA2005-40, 2005 DOLWH Lexis 52 (10/14/05). {N/R}
Iowa Supreme Court holds that sergeants were
exempt from the overtime provisions of the FLSA, but meal time for officers was
compensable. Raper v. Iowa Dept. Public Safety, #86/03-0255, 688 N.W.2d 29,
2004 Iowa Sup. Lexis 277, 10 WH Cases2d (BNA) 76 (2004). {N/R}
First Circuit holds that police sergeants are
exempt from FLSA overtime requirements.O'Brien v. Town of Agawam, #03-1685, 350
F.3d 279, 2003 U.S. App. Lexis 24220 (1st Cir. 2003). {N/R}
The Supreme Court has declined to review an
appellate court holding that supervisory Border Patrol agents are "executives,"
and are exempt from the FLSA's overtime provisions. Lotz v. United States, 322
F.3d 1328, 8 WH Cases2d 929 (Fed. Cir. 2003); cert. den. #03-146, 2003 U.S.
Lexis 8016, 72 Law Week 3307 (2003). {N/R}
Federal appeals court upholds an Office of Personnel
Management definition of the executive exemption to the Fair Labor Standards
Act. Billings v. U.S., #02-5069, 2003 U.S. App. Lexis 4547 (Fed Cir. 2003).
{N/R}
Appeals court finds that various city employees
were exempt from the FLSA; the fact that the city docked plaintiffs' pay if
they failed to work a full eight-hour day did not alter their exempt status.
Demos v. City of Indianapolis, #01-2952, 2002 U.S. App. Lexis 17934 (7th Cir.
2002). {N/R}
Although GS-12 first line supervisory border
patrol agents were entitled to overtime, GS-13 Agents In Charge and Assistant
Patrol Agents In Charge were exempt from the FLSA. Bates v. U.S., #96-931, 51
Fed. Cl. 460; 2002 U.S. Claims Lexis 7 (Ct.Cl. 2002). [N/R]
Police Dept's disciplinary procedures did not
establish an employment policy that effectively communicated a likelihood of
pay docking for higher level law enforcement officers whom city claimed were
exempt from FLSA overtime. Kelly v. City of New York, 2000 U.S. Dist. Lexis
11619, 6 WH Cases2d (BNA) 753 (Unpub., S.D.N.Y.). {N/R}
Two lawyer-police officers who accepted executive
assignments lost their right to claim overtime as nonexempt employees. The fact
their pay stubs listed hourly pay and leave time was not determinative of their
exempt status. Kavanagh v. City of Phoenix, 87 F.Supp.2d 958, 2000 U.S. Dist.
Lexis 2776, 6 WH Cases2d (BNA) 661 (D. Ariz). [2000 FP 169]
A city policy of salary reduction of police
sergeants and lieutenants for absences of less than one day did not defeat
their salaried status, where since 1989, no deductions have been made and no
suspensions for less than one week have been imposed. FOP L-3 v. Baltimore City
Police Dept., 1999 U.S. Dist. Lexis 15384, 5 WH Cases2d (BNA) 1383 (D.Md.).
{N/R}
The fact that police lieutenants often work
alongside their subordinate officers does not qualify them for FLSA overtime.
Anderson v. City of Cleveland, Tenn., 90 F.Supp.2d 906, 2000 U.S. Dist. Lexis
4705 (E.D. Tenn.). {N/R}
Second Circuit holds that detective sergeants and
lieutenants in a N.Y. police department were not exempt from FLSA overtime pay
provisions. Kelly v. Mount Vernon, 1998 U.S. App. Lexis 31540 162 F.3d 552 (2d
Cir.). {N/R}
Appeals court upholds a former police captain's
overtime demands. Senior officers were not exempt because they were subject to
short-term disciplinary suspensions. Bowman v. Indianapolis, 133 F.3d 513, 1998
U.S. App. Lexis 212 (7th Cir.). [1998 FP 120]
Supreme Court rejects St. Louis police
sergeants" overtime suit and reaffirms the "salary test" for
exempt employees. Justices avoid a constitutional attack on the FLSA. Auer v.
Robbins, 1997 U.S. Lexis 1272, 117 S.Ct. 905. [1996 FP 4-5, 151-2 (prior
decis.); 1997 FP 39]
Federal appeals court holds that battalion chiefs
were hourly workers because they were subject to disciplinary periods of less
than one week. McGuire v. City of Portland, 91 F.3d 1293, 1996 U.S.App. Lexis
18997 (9th Cir.). [1996 FP 151]
$2.9 million awarded to EMS personnel in Maryland.
West v. Anne Arundel Co., Opinion: 1995 U.S.Dist. Lexis 15679; Order of final
judgment (D.Md. 1996). Also see 4th Cir. opin. later. [1996 FP 56]
7th Circuit awards double overtime rates to
Illinois police sergeants. Bankston v. Illinois, 60 F.3d 1249 (7th Cir. 1995).
[1996 FP 4]
9th Circuit finds that pay docking test of
salaried employees did not apply to the public sector before 1991. Service
Empl. Intern. Union L-102 v. City of San Diego, 60 F.3d 1346, 1995 U.S.App.
Lexis 40787 (9th Cir.), amending 35 F.3d 483. [1996 FP 5]
7th Circuit upholds DOL regulation prohibiting
disciplinary suspensions of FLSA exempt personnel. Mueller v. Reich, 54 F.3d
438 (7th Cir. 1995). [1996 FP 5]
Article: "Exempt or not exempt under the
administrative exemption of the FLSA," 11 (2) The Labor Lawyer (ABA)
209-230 (Summer 1995). {N/R}
Fire captains in Michigan were not exempt as
executive personnel. Abbey v. City of Jackson, 883 F.Supp. 182 (E.D.Mich.
1995). {N/R}
Fire captains in Kansas were exempt as executive
personnel. Aaron v. City of Wichita, 54 F.3d 652 (10th Cir. 1995). {N/R}
Article: "Exempt or not exempt under the
administrative exemption of the FLSA," 11 (2) The Labor Lawyer (ABA)
209-230 (Summer, 1995).
City did not lose executive exemption because
police commanders received comp. time per CBA. McGrath v. Philadelphia, 864
F.Supp. 466 (E.D.Pa. 1994). {N/R}
Failure to submit wage and hour claims to
arbitration did not bar suit under the FLSA. Tran v. Tran, 54 F.3d 115 (2d Cir.
1995). {N/R}
Three-day suspension of a police lieutenant
"destroyed his salaried status." Avery v. City of Talledega, 24 F.2d
1337 (11th Cir. 1994). [1995 FP 55]
First sergeants, lieutenants and captains in the
Oregon State Police were entitled to overtime pay because of their
susceptibility to disciplinary suspensions of less than a pay period. Hurley v.
St. of Oregon, 27 F.3d 392 (9th Cir. 1994). [1995 FP 55]
Managerial employees who were subject to
suspensions without pay of one to four days were not entitled to liquidated
(double) damages, even though the city knew the policies were not in compliance
with FLSA regulations. Yourman v. Dinkins, 865 F.Supp. 154 (S.D.N.Y. 1994).
[1995 FP 55]
Criminal investigators were not "administrative"
employees exempt from overtime provisions. Ahern v. New York, 807 F.Supp. 919;
aff'd Reich v. New York, 3 F.3d 581 (2nd Cir. 1993). {N/R}
District and deputy fire chiefs were
"executive employees" in a Texas fire dept. Simmons v. Fort Worth, 805
F.Supp. 419 (N.D.Tex. 1992). {N/R}
Fire platoon supervisors were "executive
employees." Amos v. Winston-Salem, 1 WH Cases (BNA) 578 (M.D.N.C. 1993).
{N/R}
Police officers with significant managerial
authority over subordinates were "executive employees." Officers who
spent half their time answering phone calls were not "administrative
employees." Shockley v. Newport News, 997 F.2d 18 (4th Cir. 1993). {N/R}
Claims by lieutenants, captains and battalion
chiefs that they were misclassified as FLSA exempt executive/administrative
employees was brought in a timely fashion. Operative date is not when they were
classified; each time they receive a paycheck the law is broken. Knight v. City
of Columbus, 19 F.3d 579 (11th Cir. 1994); cert. petit. #94-234. {N/R}
D.C. police lieutenants and captains were exempt
from overtime provisions of the FLSA. Hilbert v. Dist. of Columbia, 23 F.3d 429
(D.C. Cir. 1994). {N.R}
Federal court in St. Louis denies overtime pay to
police sergeants except those with the bomb & arson and accident
reconstruction units. Auer v. Clarke, #88-2071-C (4),(E.D.Mo. 1994). Note: The
exemption was affirmed as to all sergeants; see Auer v. Robbins, 65 F.3d 702.
The U.S. Supreme Court granted review in 1996. [1994 FP 118-9]
Ninth Circuit disallows overtime claim of police
executives, even though their accumulated comp. time is docked for absences of
less than one day. Their regular pay may not be reduced, however. Barner v.
City of Novato, 17 F.3d 1256 (9th Cir. 1994). [1994 FP 89-90]
Fire captains and lieutenants were
"executives" exempt from FLSA overtime provisions. Keller v. City of
Columbus, 778 F.2d 1480 (S.D.Ind. 1991). {N/R}
Deputy fire chiefs and captains were exempt from
overtime in Huntington WV; lieutenants were not. Masters v. City of Huntington,
800 F.Supp. 355 and 369 (S.D.W.Va. 1992). [1993 FP 87]
Federal court in Texas holds that district and
deputy fire chiefs were "salaried executives" exempt from overtime.
Simmons v. City of Ft. Worth, 805 F.Supp. 420 (N.D.Tex. 1992). [1993 FP 104]
Fire captains and lieutenants were
"executives" exempt from FLSA overtime provisions. Keller v. City of
Columbus, 778 F.2d 1480 (S.D.Ind. 1991). {N/R}
Federal court rejects city's claim that sergeants
were exempt from FLSA as supervisors, because it disciplined sergeants with pay
suspensions of less than an entire pay period. Pautlitz v. City of Naperville,
781 F.Supp. 1368 (N.D.Ill. 1992). [1992 FP 168-9] Note: court later allowed
sgts. to recover liquidated (double) damages; see 874 F.Supp. 833 (1994). {N/R}
Fire lieutenants who were paid on an hourly basis
were not exempt from FLSA overtime provisions. Thomas v. County of Fairfax, 758
F.Supp. 353 (E.D.Va. 1991). [1992 FP 71-2]
Federal court declines to exclude police
lieutenants from time and one-half overtime provisions of FLSA. Hilbert v.
Dist. of Columbia, 788 F.Supp. 597 (D.D.C. 1992). [1992 FP 87]
Federal appeals court in California includes
battalion chiefs within overtime provisions of FLSA. They did not come under
the "executive" exemption as "salaried" employees because
their pay was subject to deductions for absences of less than a day. Abshire v.
County of Kern, 908 F.2d 489 (9th Cir. 1990). Appeals court in New York
concludes that Port Authority police officers are "hourly" and not
"salaried" employees for the same reasons. Whitmore v. Port Auth. of
N.Y. & N.J., 907 F.2d 20 (2d Cir. 1990).
D.C. police sergeants were not exempt as
"administrative" employees. Double (liquidated) damages awarded.
D'Camera v. Dist. of Col., 693 F.Supp. 1208 (D.D.C. 1988) and 722 F.Supp. 799
(D.D.C. 1989). {N/R} Fire Dept. shift commanders were exempt from FLSA overtime
provisions. Hartman v. Arlington Co., 903 F.2d 290 (4th Cir. 1990).
Undersheriff, though second-in-command, was not
exempt from FLSA overtime pay provisions. Duties were not
"administrative." Dollison v. Osborne County, 763 P.2d 1101 (Kan.
1988).