Four thousand New York City Police Department (NYPD) sergeants are not exempt executives under the Fair Labor Standards Act (FLSA) because their primary duty is law enforcement, not management, a federal court has found. As a result, the court found the city liable to the sergeants for back overtime pay going back to 2001.
The 2nd U.S. Circuit Court of Appeals’ ruling in Mullins v. City of New York reflects the interpretation of a U.S. Department of Labor (DOL) amicus brief that the appeals court had requested and subsequently found to be entitled to controlling deference. (Here’s the court’s response.) DOL’s brief interpreted the facts in the Mullins case in light of DOL’s 2004 “white-collar” regulations, which include a provision excepting first responders from the executive exemption if their primary duty is not management, and concluded that the Mullins plaintiffs are nonexempt employees.
The 2nd Circuit’s decision that DOL’s interpretation of its own regulations is entitled to deference affects FLSA-covered employers in New York, Connecticut and Vermont.
The Plaintiffs’ Duties
The parties to Mullins do not dispute the plaintiffs’ general duties, which include pursuing, restraining and apprehending suspects; interviewing witnesses, suspects, victims and vehicle operators; being dispatched to all arrests in their unit; verifying whether probable cause exists to arrest a suspect; and verifying the target location for search warrants and determining whether a warrant is appropriate
Also, the sergeants take charge at crime scenes if they are the highest ranking officers present; only sergeants may use certain equipment such as tasers and water cannons; and sergeants complete “unusual occurrence reports,” which “provide the written details of a significant or unusual occurrence.” Additional responsibilities include instructing police officers on proper procedures and monitoring their use of proper equipment and their accurate recording of daily activities.
Although sergeants may be the commanding officers on a crime scene and have special duties, the appeals court noted that they are the second-lowest ranked officers in the NYPD.
The Executive Exemption
The U.S. District Court for the Southern District of New York ruled that the NYPD sergeants were exempt executives because they supervised subordinate police officers while conducting law enforcement activities in the field (Mullins v. City of New York, (S.D. N.Y., 2007)). The plaintiffs appealed.
An employee must meet all of the following requirements to be exempt as an executive from the FLSA’s minimum wage and overtime provisions:
1. They must be compensated on a salary basis at a rate of not less than $455 per week, exclusive of board, lodging or other facilities.
2. They must have a primary duty that is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof.
3. They must customarily and regularly direct the work of two or more other employees.
4. They must have the authority to hire or fire other employees. Alternatively, the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight (29 C.F.R. §541.100).
While police officers, firefighters, emergency medical technicians and other safety officers may be found eligible for the executive exemption, DOL’s 2004 regulations added a provision making many such officers ineligible for exemption from the FLSA’s overtime requirements. This provision is known informally as the “first responder” rule.
Because the 2nd Circuit found that the management prong of the executive exemption combined with the 2004 “first responder” rule was “at best” ambiguous, it deferred to Labor Secretary Hilda Solis’ interpretation of the agency’s rules in her amicus brief.
The ‘First Responder’ Rule
DOL’s 2004 “first responder” regulation (29 C.F.R. §541.3(b)) states that the executive exemption does not apply to a list of law enforcement and other public safety personnel who — “regardless of rank or pay level” — do not qualify as exempt white-collar workers if they perform certain types of work, including the following:
- preventing or detecting crimes;
- conducting investigations or inspections for violations of law;
- performing surveillance;
- pursuing, restraining and apprehending suspects;
- detaining or supervising suspected and convicted criminals, including those on probation or parole;
- interviewing witnesses;
- interrogating and fingerprinting suspects; or
- preparing investigative reports.
This rule is aimed at employees who do not have management as their primary duty. For example, the ranking officer on a particular crime scene will not be exempt merely because he directs the work of others at that moment. However, a law enforcement officer, firefighter or emergency services worker whose primary duty is management may still qualify for the executive exemption.