stating that Congress “intended all emergency medical technicians (EMTs) trained as firefighters and attached to a fire department to be considered employees engaged in fire protection even though they may spend one hundred percent of their time responding to medical emergencies” in Section 203(y)
How later courts described this case
- stating that Congress “intended all emergency medical technicians (EMTs) trained as firefighters and attached to a fire department to be considered employees engaged in fire protection even though they may spend one hundred percent of their time responding to medical emergencies” in Section 203(y)
- stating that Congress “intended all emergency medical technicians (EMTs
- ruling that obsolete regulations are “without effect”
- indicating graduates of fire academy were “trained in fire suppression”
Written by the judges who cited it.
The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-60396
MARK MCGAVOCK, SHERMAN GOOCH, STEWART SPENCE, TRAVIS INMAN, and
DONALD BYNAM,
Plaintiffs-Appellees
VERSUS
CITY OF WATER VALLEY, MISSISSIPPI,
Defendant-Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
Before GARWOOD, DAVIS and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
This case arises out of the application of the Fair Labor
Standards Act overtime exemption for employees “engaged in fire
protection activities.” 29 U.S.C. § 207(k). Unless the exemption
applies, the Fair Labor Standards Act (“FLSA”) requires that
employees be compensated at a rate of one-and-one-half times their
hourly rate for all hours worked in excess of forty hours in one
week. 29 U.S.C. § 207(a). The controlling issue in this case is
whether the plaintiffs are employees “engaged in fire protection
activities” and thereby exempt from coverage of the overtime
provisions even though they spend more than 20% of their time
engaged in nonexempt (non-fire protection) activities. On summary
judgment, the district court held that because of their non-exempt
work as dispatchers the plaintiffs were not employees engaged in
fire protection activity, and therefore were not subject to the
exemption. For the reasons that follow, we conclude that the
plaintiffs are employees engaged in fire protection activities, and
therefore REVERSE and REMAND for further proceedings.
I.
The plaintiffs-appellees are five municipal firefighters
employed by the defendant, City of Water Valley, Mississippi (“the
City”). The firefighters graduated from the fire academy, where
they were trained in fire suppression. They have the legal
authority to engage in fire suppression and are actually called
upon to extinguish, control, and prevent fires and to respond to
emergency situations where life, property, or the environment is at
risk. However, the firefighters spend more than 20% of their
workweek engaged in dispatching duties as opposed to actual fire
protection activities.1
The firefighters filed an FLSA overtime action against the
City alleging that they work 24-hour shifts for 121 days of the
1
Some of the employees spend more than 50% of their work
engaged in dispatching duties.
2
year—approximately 53 hours per week. The complaint alleged that
the firefighters are entitled to overtime pay for all hours worked
in excess of 40 hours per week under § 207(a) of the FLSA. See 29
U.S.C. 207(a).
The firefighters and the City moved for partial summary
judgment on the issue of whether the firefighters are “employees
engaged in fire protection activities” and thus subject to the §
207(k) pay plan exemption. The district court granted the motion
in favor of the firefighters. It found that there was no conflict
between the Department of Labor regulation, 29 C.F.R. § 553.212,
and 29 U.S.C. § 203(y) and that “[w]hatever Congress’ intent was in
passing § 203(y), it was not to authorize municipal employers to
classify individuals as fire prevention personnel and then to
assign them tasks unrelated to firefighting while depriving them of
minimum wage protections.” The City moved the district court to
reconsider, which the district court denied. The district court
certified the case for interlocutory appeal, which we accepted.
II.
A.
This court reviews a grant or denial of summary judgment de
novo, and applies the same standard as the district court. See
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167
(5th Cir. 1999). Additionally, we construe the FLSA liberally in
favor of employees, and exemptions “are to be narrowly construed
3
against the employers seeking to assert them. . . .” Arnold v. Ben
Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 465 (1960).
B.
The Fair Labor Standards Act of 1983 establishes the general
rule that employees must receive overtime compensation at one and
one-half times the regular rate for hours worked in excess of 40
hours during a seven-day workweek. 29 U.S.C. § 207(a).2 Section
207(k) provides an exemption to that rule. Under the exemption,
the overtime provisions of the FLSA are not applicable to any
“employee in fire protection activities,” unless he or she works in
excess of 212 hours in a work period of 28 consecutive days (an
average of 53 hours per week).3
2
Section 207(a) states, in relevant part:
Employees engaged in interstate commerce; additional
applicability to employees pursuant to subsequent amendatory
provisions
(1) Except as otherwise provided in this section, no
employer shall employ any of his employees who in any
workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise
engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless
such employee receives compensation for his employment
in excess of the hours above specified at a rate not
less than one and one-half times the regular rate at
which he is employed.
29 U.S.C. § 207(a)(emphasis added).
3
Section 207(k) states:
No public agency shall be deemed to have violated
subsection (a) of this section with respect to the
employment of any employee in fire protection
activities or any employee in law enforcement
activities (including security personnel in
4
Before 1999, the term “employee in fire protection activities”
was defined only by Department of Labor (“DOL”) regulation 29
C.F.R. § 553.210. The regulation provided a four-part test to
determine which employees qualified as “employees in fire
protection activities.” According to the regulation, the term
refers to any employee,
(1) who is employed by an organized fire department or
fire protection district; (2) who has been trained to the
extent required by State statute or local ordinance; (3)
who has the legal authority and responsibility to engage
in the prevention, control or extinguishment of a fire of
any type; and (4) who performs activities which are
required for, and directly concerned with, the
prevention, control or extinguishment of fires, including
such incidental non-firefighting functions as
housekeeping, equipment maintenance, lecturing, attending
community fire drills and inspecting homes and schools
for fire hazards.
correctional institutions) if--
(1) in a work period of 28 consecutive days the
employee receives for tours of duty which in the
aggregate exceed the lesser of (A) 216 hours, or
(B) the average number of hours (as determined by
the Secretary pursuant to section 6(c)(3) of the
Fair Labor Standards Amendments of 1974) in tours
of duty of employees engaged in such activities in
work periods of 28 consecutive days in calendar
year 1975; or
(2) in the case of such an employee to whom a work
period of at least 7 but less than 28 days
applies, in his work period the employee receives
for tours of duty which in the aggregate exceed a
number of hours which bears the same ratio to the
number of consecutive days in his work period as 216
hours (or if lower, the number of hours referred to in clause (B)
of paragraph (1)) bears to 28 days, compensation at a rate not
less than one and one-half times the regular rate at which he is
employed.
29 U.S.C. § 207(k)(emphasis added).
5
29 C.F.R. § 553.210.
In addition, DOL regulation 29 C.F.R. § 553.212 puts a gloss
on the § 553.210's definition stating that, “employees in fire
protection activities,” “as described in §§ 553.210” can engage in
nonexempt work (activities not related to fire suppression);
however, if the employee performs nonexempt work more than 20% of
his total working time then he is not an “employee engaged in fire
protection activity” and thus is not subject to the 207(k) special
pay plan.4
In 1999, Congress amended the FLSA and for the first time
provided a statutory definition of “employee in fire protection
activities.” The amendment added § 203(y) and currently states:
“an employee, including a firefighter, paramedic,
emergency medical technician, rescue worker, ambulance
personnel, or hazardous materials worker, who--
(1) is trained in fire suppression, has the legal
authority and responsibility to engage in fire
4
Section 553.212 (often referred to as the 20% rule, or
20/80 rule) provides:
Employees engaged in fire protection or law enforcement
activities as described in §§ 553.210 and 553.211, may also
engage in some nonexempt work which is not performed as an
incident to or in conjunction with their fire protection or law
enforcement activities. For example, firefighters who work for
forest conservation agencies may, during slack times, plant trees
and perform other conservation activities unrelated to their
firefighting duties. The performance of such nonexempt work will
not defeat either the section 13(b)(20) or 7(k) exemptions unless
it exceeds 20 percent of the total hours worked by that employee
during the workweek or applicable work period. A person who
spends more than 20 percent of his/her working time in nonexempt
activities is not considered to be an employee engaged in fire
protection or law enforcement activities for purposes of this
part.
29 C.F.R. § 553.212 (emphasis added).
6
suppression, and is employed by a fire department
of a municipality, county, fire district, or State;
and
(2) is engaged in the prevention, control, and
extinguishment of fires or response to emergency
situations where life, property, or the environment
is at risk.
The purpose of the amendment was to “clarify the overtime exemption
for employees engaged in fire protection activities.” Pub. L. No.
106-151, 113 Stat. 1731 (codified as amended at 29 U.S.C. §
203(y)).
The DOL has not revised its regulations since the legislative
change, even though one circuit has observed the need to revise at
least § 553.210. See Lockwood v. Prince George’s County, 217 F.3d
839, *1 n.1 (4th Cir. 2000)(unpublished)(“Still, we note that, in
light of the definition of ‘employee in fire protection activities’
provided by 29 U.S.C.A. § 203(y), the four-part regulatory
definition provided by 29 C.F.R. § 553.201(a) will need to be
revised.”).
C.
The City argues that the DOL’s 20% rule in § 553.212, which
applies to employees “engaged in fire protection activities” “as
defined in § 553.210,” is now obsolete because the recently enacted
§ 203(y) supplants § 553.210's definition. The City also asserts
that Congress purposefully did not include the 20% rule in §
203(y), as reflected by the plain language of the statute and by
7
legislative history.5
The firefighters, on the other hand, concede that they meet
the § 203(y) definition, but argue that § 553.212's 20% rule
remains in effect because it is not in conflict with § 203(y).
They argue that the regulation continues to limit employees
considered engaged “in fire protection activities” to employees who
spend 80% or more of their time engaged in fire protection
activities. Because the plaintiffs spend more than 20% of their
time working as dispatchers, they contend they are not “employees
in firefighting activities” and therefore not subject to the 207(k)
5
The City relies on the Congressional debates to support its
contention that the legislature intended to do away with the 20%
rule. During congressional debates, Representative Boehner
observed:
In recent years, however, some courts have narrowly
interpreted the 7(k) exemption and held that emergency
medical services personnel do not come within the
exemption because the bulk of their time is spent
engaged in nonfire protection activities. These
lawsuits have resulted in State and local governments
being liable for millions of dollars in back pay,
attorneys’ fees and court costs. So there is a real
need to modernize this area of the Fair Labor Standards
Act and to clearly specify who can be considered a fire
protection employee for purposes of the exemption.
145 Cong. Rec. H11,499-02, H11500 (daily ed. Nov. 4,
1999)(statement of Rep. Boehner). Representative Ehlich, the
sponsor of § 203(y), further stated:
[F]rom its inception, the Fair Labor Standards Act has
exempted fire protection employees from the traditional
40-hour workweek. Historically, any emergency responder
paid by a fire department was considered to be a fire
protection employee. However, recent court
interpretations of Federal labor statutes have rendered
this definition unclear. [Section 203(y)] seeks to
clarify the definition.
Id. (statement of Rep. Ehlich).
8
pay plan.
It is clear, and all parties concede, that § 553.210 is
supplanted by the new definition in § 203(y). The only purpose of
Congress in amending the statute that is clear to us, is that it
intended all emergency medical technicians (EMTs) trained as
firefighters and attached to a fire department to be considered
employees engaged in fire protection activities even though they
may spend one hundred percent of their time responding to medical
emergencies. Congress did not otherwise address the 20% rule.
However, § 553.212's 20% rule is an extension of § 553.210 in
that § 553.212 provides an explanation of the requirement of prong
four of the § 553.210 definition. This prong requires the employee
to “perform” firefighting related duties. Section 553.212 places
a gloss on that requirement by making it clear that the employee
meets the test so long as his firefighting duties comprise more
than 80% of his total work time in a work week. It is therefore
evident that the 20% rule in § 553.212 was intended to refine the
now obsolete § 553.210 definition.
For the last three years, the DOL has recognized the need for
further rulemaking to interpret the amended statute by announcing
that it proposed to begin the rulemaking process. 71 Fed. Reg.
22902 (proposed April 24, 2006); 70 Fed. Reg. 27170 (proposed May
16, 2005); 69 Fed.Reg. 73457 (proposed Dec. 13, 2004).
Unfortunately, no specific new rules have been proposed. On the
other hand, the Office of Personnel Management (“OPM”) recently
9
issued Proposed Rules (which apply to federal employees) amending
its regulations to the FLSA in an effort to “update and harmonize”
their regulations with revisions made to DOL regulations. 71 Fed.
Reg. 30301 (proposed May 26, 2006)(to be codified at 5 C.F.R. §
551.212). The OPM has proposed the following regulation, which is
relevant to the facts of this case: “The following employees are
engaged in fire protection activities for the purpose of pay under
section 7(k) of the Act...: (1) Employees in positions properly
classified in the Fire Protection and Prevention series, including
any qualified firefighter who is assigned to perform support
functions (e.g., communications or dispatching functions...). Id.
(emphasis added).
In sum, we conclude that § 553.212 is no longer in effect.6
The new statute, § 203(y), provides a definition previously
provided by § 553.210 and its subsidiary regulation § 553.212.
Both of these regulations are therefore now obsolete and without
effect. The 20% rule no longer applies to the Plaintiffs, and it
therefore does not remove them from the statutory definition of
“employees engaged in fire protection activities.” Thus, they fall
within the § 207(k) exemption. We therefore reverse the district
court judgment and remand this case to the district court for
further proceedings.
6
Section 553.212's 20% rule remains in effect as it applies
to employees engaged in law enforcement activities covered by 29
C.F.R. § 553.211. See 29 C.F.R. § 553.212.
10
REVERSED and REMANDED.
11