In its recent decision in Morrison v. County of Fairfax, Virginia, the United States Court of Appeals for the Fourth Circuit reversed the Eastern District Court of Virginia, and held that a group of Fairfax County fire Captains were entitled to overtime pay under the Fair Labor Standards Act because of the “first responder” regulation.
In Morrison, over 100 hundred current and former fire Captains filed suit against Fairfax County for the denial of overtime compensation under the FLSA. The County moved for summary judgment on the grounds that the Captains were exempt from the FLSA’s overtime pay requirements because of the executive exemption. The Captains filed a cross-motion for summary judgment and argued that they did not fall within the exemption, particularly in light of the first responder regulation. Judge Hilton, of the Eastern District Court of Virginia in Alexandria, granted summary judgment in favor of the County holding that the Captains’ reliance on the first responder regulation was misplaced as the regulation only applied to “blue collar” employees.
The Fourth Circuit reversed the district court’s ruling and held that the Captains were entitled to summary judgment. In support of its reversal, the Fourth Circuit examined the first responder regulation, which was passed by the Department of Labor to clarify whether the overtime exemptions for administrative, executive, and other white collar employees applied to first responders, “blue collar” workers, and manual laborers. Based on its construction of the regulation, the Fourth Circuit concluded that the applicability of the first responder regulation to the case at hand was dependent upon the primary duties of the Captains; if the Captains’ primary job duties were managerial or administrative in nature, then they would be exempt under the FLSA and not entitled to overtime pay.
In furtherance of its consideration of whether the Captains’ employment duties were primarily managerial or administrative, the Fourth Circuit analyzed four factors: (1) the relative importance of the Captains’ exempt duties as compared with their other duties; (2) the amount of time the Captains spent performing exempt work; (3) the Captains relative freedom from direct supervision; and, (4) a comparison of the Captains’ compensation to the wages paid to other employees who performed non-exempt work.
Based on its examination of the record of the case and each of these factors, the Fourth Circuit held that “no reasonable jury could find, by clear and convincing evidence, that the Captains’ primary job duty is anything other than emergency response.”
With respect to the first factor, the Fourth Circuit concluded that the evidence clearly showed that the Captains’ primary job duty was responding to emergency calls. The Captains could not refuse to respond to an emergency call; and, fighting fires was more important than any of the Captains’ non-firefighting duties.
As for the second factor, the Fourth Circuit held that there was little evidence in the record to support that the Captains’ duties largely consisted of exempt managerial work. The Captains’ unrebutted deposition testimony showed that the Captains worked approximately 2600 hours per year, but spent less than 25 of those hours on management tasks. Moreover, to the extent the Captains performed tasks such as submitting annual evaluations, reporting infractions, and confirming changes to policies, the Fourth Circuit deemed such tasks as largely “ministerial in nature.” The Captains did not have any responsibility for “the kind of specific high-level management tasks ordinarily associated with executives or administrators” such as planning and controlling a budget, selecting new employees, and settings rates of pay and hours of work.
The Fourth Circuit was also unpersuaded that the County produced sufficient evidence to satisfy the third and fourth factors of the primary duty inquiry. The evidence showed that the Captains were not relatively free from direct supervision; and, the County did not present any evidence of a significant gap in pay between the Captains’ salary and the wages paid to other employees for performing the same firefighting work.
Takeaway: As reflected in the Fourth Circuit’s opinion in Morrison, the applicability of an exemption requires an intensive analysis of the record and an employer faces the substantial burden of proving its position by clear and convincing evidence. While the Fourth Circuit (which hears appeals from the nine federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as from federal administrative agencies) is traditionally regarded by many as a “pro employer” forum, the Morrison decision is certainly a victory for law enforcement, fire fighters, and other first responders. It will be interesting to see how federal district courts within the Fourth Circuit apply Morrison to “blue collar” workers and “manual” laborers in FLSA exemption cases moving forward.