Fourth Circuit Finds Fire Captains Eligible for Overtime

In a case with potentially far-reaching implications for fire departments in Virginia, Maryland, the Carolinas, and West Virginia, the United States Court of Appeals for the Fourth Circuit ruled that Fairfax County, Virginia fire captains are non-exempt employees entitled to overtime compensation. Morrison v. County of Fairfax, No. 14-2308 (June 21, 2016).  The Court reversed a grant of summary judgment in favor of the County and granted summary judgment to the captains.

Although the evidence showed that the fire captains spent the majority of the time in the fire station and performed management duties such as evaluating performance and administering discipline, the appellate court found this to be insufficient to make them exempt as either executives or administrative employees.  The Fourth Circuit ruled that their “primary duty” is responding to emergency calls, just as is the case with the non-exempt lieutenants and other fire suppression and emergency medical services personnel. The court summarized their duties as follows:

Station and Shift Commanders are what are commonly known as “first responders.” They report to every emergency call that comes in during their shifts and is assigned to their engines: A fire engine cannot leave the station without its designated Station or Shift Commander on board, and these Captains may not refuse to respond to a call. At the scene, Station and Shift Commanders work side-by-side with their subordinates, wearing the same protective gear. With their crews, they operate hoses and ladders, ventilate buildings, and force entry, running into burning buildings to rescue victims or search for signs that a fire will spread. Station and Shift Commanders spend the same amount of time responding to emergencies as their lower-ranked colleagues assigned to their engines.

EMS Supervisors and Safety Officers also are part of the first-response team; like Station and Shift Commanders, they have no discretion as to whether they will respond to calls. EMS Supervisors transport emergency medical equipment to the scene of emergencies and render emergency care, such as controlling bleeding and performing CPR. They also conduct more technical Advanced Life Support (“ALS”) at the scene of fires, initiating intravenous drips, checking EKG rhythms, and the like. Safety Officers transport emergency equipment that allows them to monitor the safety of fire scenes, including measuring gas levels and analyzing the structural integrity of buildings that they and their colleagues will need to enter.

The Fourth Circuit found little evidence to support the County’s argument that the captains were primarily engaged in management work. They spent no more than 12 hours per year completing performance evaluations,  and all disciplinary actions had to be approved by a Deputy Chief or Battalion Chief.  The Captains had no authority to  set or control the budget, hire or fire employees, set minimum staffing levels, change employees’ work schedules, or approve overtime. As the Court stated:

The Captains’ unrebutted deposition testimony shows that they work approximately 2600 hours per year, but spend less than 25 of those hours on identified management tasks: twelve hours completing annual evaluations, three hours reporting disciplinary infractions and administering discipline decided upon by their superiors, five hours updating station policies to conform to county-wide changes, and four hours creating station “wish lists” for purchases.

On these facts, the Fourth Circuit found the captains non-exempt employees. Given that many fire departments in the more urban jurisdictions are structured similarly to Fairfax County’s, employers should expect to see more claims brought by captains alleging they have been improperly classified as exempt employees.

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