GERARD MORRISON; CHRISTOPHER THOMPSON; ELTON POLEN, JR.; CALVIN ALEXANDER; MICHAEL ALLEN; ROCCO ALVARO; THOMAS ARNOLD; WILLIAM ATWELL; ROBERT BANASIK; TIMOTHY BARB; TODD BARB; MATHEW ARNHART; MERVIN BARRERA; OSCAR BEASLEY; WILLIAM BEST, JR.; BILL BETZ; DANIEL BORDEN, JR.; EDWARD BOWMAN; FRED BRANDELL; DONALD BRASFIELD; CHRISTOPHER BROWN; JON BRULEY; CLYDE BUCHANAN; CARLTON BURKHAMMER; ROBERT BURLINGAME; MATTHEW BURNS; LEO BURT; LEROY BUTLER, JR.; KEITH CERZULLO; JOHN CHESEK, JR.; MICHAEL CIARROCCHI; STEVEN CLARK; BRADFORD COCHRANE, JR.; THOMAS CONNOLLY; DAVID CONRAD; ARTHUR COX; DUSTIN CRAMER; TRACY CRAWFORD; KEITH CROSS; ERIC CUNNINGHAM; CHARLES CUNNINGHAM; DANNY DANIELS, II; MICHAEL DAVIS; TROY DEAN; YOLANDA DEMARK; SAMUEL DEVERA; KEITH DUBETSKY; BRIAN EDMONSTON; KEVIN EDWARDS; DEREK EDWARDS; FELECIA EDWARDS; SEAN EVANS; MARK FEASTER; MICHAEL FISCHER; COLIN FLANIGAN; THOMAS FLINT; MICHAEL FONTANA; RAMIRO GALVEZ; MICHAEL GARCIA; KENNETH GEFFEN; JARED GOFF; GEORGE GONZALEZ; TODD GORHAM; SAMUEL GRAY; RAYMOND GRIFFIN; WESLEY GRIGG; DAVID GRUENDEL; MARK GUDITUS; DAVID HALL; JAMES HARRISON, III; SHERYL HEMINGWAY; CHARLES HENDERSON; KIT HESSEL; JOHN HIGGINBOTHAM; JAMES HOBGOOD; KIMBERLY HOOD; TRENTON HOUGHTON; GREGORY HUNTER; JAMES IACONE; MICHAEL ISTVAN; JAMES ISTVAN; ANTHONY JACKSON; JAMES JOHNSON; REGINALD JOHNSON; THOMAS JOHNSON; WALTER JOHNSON; JOSEPH KALEDA; GLENN KAPLAN; PATRICK KELLY; REBECCA KELLY; WILLIAM KINGDON; JOSPEH KISER; ROBERT KITCHEN; JOSEPH KNERR; ROBERT KONCZAL; TONY KOSTECKA; RONALD KULEY; DAVID LANGE; JAMES LEE; JOHN LEETE; JEFFREY LEWIS; ROBERT LISON; MATTHEW LOPEZ; WILLIAM LYNCH; BARRY MAHAM; MICHAEL MARKS; CHARLES MARTIN; JAMES MASIELLO; PAUL MASIELLO; GLENN MASON; COREY MATTHEWS; THOMAS MAYHEW; STEVEN MCFARLAND; ROGER MCGEHEE; RICHARD MCKINNEY, JR.; KERWIN MCNAMARA; FRANCIS MENSAH; MARK MENTON; JOSEPH MERRITT, JR.; STEPHEN MILLER; ROBERT MOHLER; JEFFREY MONGOLD; DONALD MONTAGUE; BRIAN MORAVITZ; JOHN MORRIS; RICHARD MOXLEY; JOHN NIEMIEC; BRYAN NIX, JR.; STEVEN NORRIS; STEPHEN O'BRIEN; MILTON PAINTER; JOSPEH PALAU, III; DENNIS PASSMORE; GARY PEMBERTON; JOHN PETERS; DALLAS PHILLIPS; RALPH PISANI; CHARLES PULLEN; E. MARTIN RANCK, III; BARRY RATHBONE; JOHN RICHTER; NATALIE ROBB; RONNIE RODRIGUEZ; MATTHEW RYAN; WILLIAM SCHELLHAMMER, III; MARK SCHROEDER; DAVID SCHWARZMANN; MICHAEL SEASE, II; DAVID SELLERS; DANIEL SHAW; RICHARD SMITH; SCOTT SMITH; MICHAEL SNAPP; JAMES A. SOBOTA; JAMES STICKLEN; REX STRICKLAND; CHERI STROUP; RONALD SYDNOR; KENDALL THOMPSON; LORENZO THROWER; CHRISTOPHER TILLES; DAVID TOBIN; JEFFREY TOLLE; GLENN TSCHANN; WILLIAM VANNOY; DONALD VAUGHT; JACK WALMER, JR.; JOHN WALSER; THOMAS WEALAND; OSCAR WELLS; WAYNE WENTZEL; MICHAEL WHETSELL; PAUL WHITE; KENNETH WILDMAN; JEROME WILLIAMS; MARCUS WILLIAMS; ELTON WRIGHT; RICHARD LANCING, Plaintiffs – Appellants,
COUNTY OF FAIRFAX, VA, Defendant-Appellee. and GARY DIZE, Plaintiff, UNITED STATES DEPARTMENT OF LABOR, Amicus Curiae.
Argued: January 27, 2016
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00005-CMH-JFA)
A. Elkin, WOODLEY & MCGILLIVARY, LLP, Washington, D.C.,
Rewari, HUNTON & WILLIAMS LLP, McLean, Virginia, for
Kay Marcus, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Amicus Curiae.
Evangeline C. Paschal, HUNTON & WILLIAMS LLP, Washington,
D.C., for Appellee.
Patricia Smith, Solicitor of Labor, Jennifer S. Brand,
Associate Solicitor, Paul L. Frieden, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Amicus Curiae.
TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit Judges.
HARRIS, Circuit Judge.
the Fair Labor Standards Act ("FLSA"), employees
who work overtime generally are entitled to overtime pay.
There is an exception - like all FLSA exceptions, narrowly
construed - for certain "executive" and
"administrative" employees whose primary job duties
are management-related. The question in this case is whether
the fire captains of Fairfax County, Virginia, firefighters
who serve as first responders to fires and other emergencies,
fall within that exception so that they are not entitled to
district court held that all of the current and former
Fairfax County fire captains bringing this suit are exempt
executives, and entered summary judgment for Fairfax County.
On appeal, the County takes a different approach, arguing
that some of the Captains are exempt executives while others
are exempt administrators. We conclude that on this record,
no reasonable jury could find by the requisite clear and
convincing evidence that any of the Captains is exempt from
the FLSA's overtime requirement. Accordingly, we reverse
the district court's judgment and remand with
instructions to enter summary judgment for the Captains.
begin by setting out the statutory and regulatory scheme that
governs this case. The Fair Labor Standards Act of 1938, 29
U.S.C. §§ 201–219, is "remedial and
humanitarian in purpose" reflecting an intent by
Congress to protect broadly the "rights of those who
toil." Tennessee Coal, Iron & R.R. v. Muscoda
Local No. 123, 321 U.S. 590, 597 (1944); Purdham v.
Fairfax Cty. Sch. Bd., 637 F.3d 421, 427 (4th Cir.
2011). Consistent with that purpose, courts are to construe
the FLSA liberally, "recognizing that broad coverage is
essential" to accomplish the statute's goals.
Tony & Susan Alamo Found. v. Sec'y of Labor,
471 U.S. 290, 296 (1985); see Purdham, 637 F.3d at
427 ("[T]he Supreme Court has cautioned that the FLSA
'must not be interpreted or applied in a narrow, grudging
manner.'" (quoting Tennessee Coal, 321 U.S.
the protections the FLSA provides employees is overtime pay,
or the right to be paid at time and a half for work above the
statutory limit, generally 40 hours per week. See 29
U.S.C. § 207. There are, however, exemptions from this
requirement, including the so-called "white collar"
exemption for workers "employed in a bona fide
executive, administrative, or professional capacity." 29
U.S.C. § 213(a)(1). As we have recognized, FLSA
exemptions, including this one, "are to be 'narrowly
construed against the employers seeking to assert them,
'" and applied only in instances "plainly and
unmistakably within the exemptions' terms and
spirit." Desmond v. PNGI Charles Town Gaming,
L.L.C., 564 F.3d 688, 692 (4th Cir. 2009) (alterations
omitted) (quoting Arnold v. Ben Kanowsky, Inc., 361
U.S. 388, 392 (1960)).
Department of Labor ("DOL") has promulgated
regulations interpreting the FLSA's exemptions for
executive and administrative employees, the two categories at
issue in this case. Under the DOL regulations, an
"employee employed in a bona fide executive
capacity" is one who earns at least $455 per week, has
authority over hiring and firing,  routinely supervises at least two other
employees,  and - most relevant here -
whose "primary duty is management of the enterprise in
which the employee is employed." 29 C.F.R. §
541.100. The administrative exemption similarly turns on a
management-related primary duty: An "employee employed
in a bona fide administrative capacity" is one who, in
addition to earning at least $455 per week and exercising
discretion on significant matters,  has as a "primary duty" the
"performance of office or non-manual work directly
related to the management or general business operations of
the employer or the employer's customers."
Id. § 541.200.
2004, DOL proposed changes to its "Part 541"
regulations governing the white collar exemptions, generating
concerns that first responders and manual laborers would
become exempt employees and lose their right to overtime pay.
See U.S. Dep't of Labor, Wage & Hour Div.,
Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer
Employees, 69 Fed. Reg. 22, 122, 22, 129 (Apr. 23, 2004) (the
"Preamble"). In response, DOL promulgated a new
regulation, 29 C.F.R. § 541.3, clarifying the scope of
the exemptions as applied to blue collar workers and first
responders. Preamble at 22, 128–29.
(a) of the new regulation provides that the Part 541
exemptions "do not apply to manual laborers or other
'blue collar' workers who perform work involving
repetitive operations with their hands, physical skill and
energy." 29 C.F.R. § 541.3(a). Subsection (b) is
the "first responder regulation, " with potential
bearing on this case. Subsection (b) provides in its first
part that the Part 541 exemptions "do not apply to . . .
fire fighters" and other first responders,
"regardless of rank or pay level." Id.
§ 541.3(b)(1). In its second and third parts, the
regulation explains why: "Such employees do not qualify
as exempt executive employees because their primary duty is
not management of the enterprise . . . as required under
§ 541.100, " id. § 541.3(b)(2); and
"[s]uch employees do not qualify as exempt
administrative employees because their primary duty is not
the performance of work directly related to the management or
general business operations of the employer . . . as required
under § 541.200, " id. § 541.3(b)(3).
Fairfax County Fire and Rescue Department is organized in a
straightforward hierarchy. At the top is the Fire Chief, in
charge of the entire Department. Reporting directly to the
Fire Chief are three Assistant Fire Chiefs; beneath them on
the organizational chart are nine Deputy Fire Chiefs,
followed by Battalion Chiefs. Five ranks down from the top
are the Captain positions at issue in this suit, reporting
directly to the Battalion Chiefs. The County treats all of
these positions as exempt from overtime pay requirements
under the FLSA.
below the Captains on the organizational chart are the
Department's Lieutenants, followed by firefighters and
technicians. All positions below the Captain position -
Lieutenants, firefighters, and technicians - are treated by
the County as non-exempt under the FLSA and thus entitled to
the parties disagree about the fundamental character of the
Captains' jobs, the record reveals certain undisputed
facts about the Captains' specific responsibilities and
work activities. The Department divides its Captains into two
groups. The "Captain I" group includes Shift
Commanders and Safety Officers, and the "Captain
II" group includes Station Commanders and Emergency
Medical Service Supervisors ("EMS Supervisors").
For every 24-hour shift, a Station Commander or Shift
Commander is responsible for supervising each fire station;
an EMS Supervisor is responsible for the emergency medical
services for each "battalion, " or geographic
region; and a Safety Officer is assigned to one or two
stations, providing advice on any safety issues that arise
and serving as the Department's primary contact
concerning these issues.
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
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 ...