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White Collar Exemption for Certain Police and
Firefighting Employees
EXECUTIVE EXEMPTION
The regulations providing for the executive exemption specifically state that the exemption DOES NOT APPLYto a specific list of non-management public safety, firefighting and emergency personnel. Under the new regulations, police officers, detectives, investigators, inspectors, correctional officers, parole or probation officers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials handlers, and other similar workers, regardless of rank or pay level, DO NOT QUALIFY for the Executive exemption if they perform the following types of work: preventing, controlling or extinguishing fires of any type, rescuing fire, crime or accident victims, preventing or detecting crimes, or conducting investigations or inspections for violations of law, performing surveillance, pursuing, restraining or apprehending suspects, detaining or supervising suspected and convicted criminals, interviewing witnesses, interrogating and fingerprinting suspects, preparing investigative reports or other similar work.
This rule is aimed at those employees who do not have management as their primary duty, but who might direct the activities of others from-time-to-time such as the ranking officer at a crime scene. These individuals therefore, are entitled to the minimum wage and overtime protections of the FLSA. Law enforcement officers, firefighters and emergency personnel whose primary duties are management may still qualify for the executive exemption if they meet the requirements set forth in the rules governing application of the Executive exemption.
If a public safety, firefighter or emergency services employee has as their primary responsibility the management of the enterprise, they may qualify as an exempt executive. “Management” is not specifically defined in the regulations, but may include interviewing, selecting and training employees as well as setting and adjusting their hours of work and rates of pay. Supervision of and appraising the performance of employees is also an indicator that the position is in the nature of management. Workers who handle employee complaints and grievances and who also are responsible for employee discipline are often found to be in management positions.
Firefighters
Employees in the upper echelons of the fire department are the most likely to qualify for the executive exemption. These position probably include: the fire chief and deputy chief, battalion chief, fire captain and fire lieutenant. The regulations are abundantly clear, however, that the employer may not rely on the job description of the employee, but must demonstrate that the actual duties performed are primarily of a managerial nature.
Some of the duties that have been deemed to be of a managerial nature include: filing out daily logbooks and reports relating to casualties, training accidents, performance evaluations, overtime authorization and reprimand notices; directing others to generate and maintain reports such as fuel use, tool inventory, daily pump readings and personnel probation; preparation of a survey locating hydrants in the fire district and commanding the activity at a fire scene.
One of the hallmark indicators of being in a managerial is the lack of close supervision. Since lieutenants and captains bear primary responsibility for the readiness of the station to respond to an incident and also possess discretion in handling assigned duties, they are the most likely candidates to be included in the executive exemption. This is true even if the ranking officer participates in the more menial duties of operating a fire station, as that would be a management decision on his/her part.
On the other hand, if the fire lieutenant or captain is nothing more than a “working foreman”, the position will not qualify as an exempt executive. For example, if the fire lieutenant or captain spends a minimal amount of time in management activities and is paid by the hour, the exemption will not apply. This is especially true if the fire lieutenant or captain does not really supervise two or more employees or if their discretion over disciplinary maters is limited.
“Swing” lieutenants” and “truck linemen” have been held not to be executives because since they only supervise minimal activities or a specific piece of equipment, if their supervisory responsibilities did not approach those of shift commander.
Emergency Medical Personnel
EMS captains have been found to be exempt where 90% of their duties were spent in management activities. Similarly, EMS directors, whose primary duties involve management of the EMS division, training of personnel, coordination of fire and EMS activities, procurement of supplies, and personnel responsibilities , were exempt executives under the new regulations.
Police Officers
Courts have held that police communications sergeants, criminal investigation sergeants, fiscal management sergeants, planning sergeants, internal affairs sergeants, and animal control sergeants were exempt executives under the regulations., But other courts have held that patrol sergeants, tactical sergeants, and vice/narcotics sergeants were not exempt executives. Therefore it must once again be emphasized that the exemption will be analyzed on a case-by-case basis comparing the actual job duties performed against the executive exemption regulations.
ADMINISTRATIVE EXEMPTION
Employees who earn a salary of at least $455 per week and whose primary duty is office or non-manual that is directly related to the management or general business operation of the employer or the employer’s customers and which involves the exercise of discretion and independent judgment will generally qualify as exempt administrative employees. The criteria contained in the regulations can also be applied to public safety, firefighter and emergency service personnel.
Depending on the actual job duties and the level of administrative functions and discretion and independent judgment, fire captains and lieutenants have been held to be exempt administrative employees as well as exempt executive employees.
PROFESSIONAL EXEMPTION
It has been argued, without much success, that some firefighting occupations, primarily paramedics and paramedic lieutenants would qualify for the professional exemption. At least one court has said that paramedic training is not comprised of the advanced intellectual content contemplated by the regulations. Given the requirement for a course of specialized intellectual instruction in a field of science or learning, it is unlikely that the professional exemption will apply to many public safety, firefighting or emergency medical services occupations.