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October 14, 2005
Dear Name*,
This is in response to your request for an opinion on the application of 29 C.F.R. Part 541 (copy enclosed) to high ranking police officers and fire fighters. Specifically you asked whether a particular city’s Police Lieutenants, Police Captains, and Fire Battalion Chiefs are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA).
The job duties of the Police Lieutenant include the following: supervising a group of Police Officers and
Sergeants assigned to patrol duties; deploying patrol units in accordance with
needs of the workload; planning, directing, and coordinating activities of any
of the special units; assisting and instructing Police Officers and Sergeants
in handling difficult problems; conducting and participating in training
courses; supervising and participating in the development and maintenance of a
police records system; performing employee appraisals on subordinates; and
disciplining subordinates when required. Additionally, Police Lieutenants are
responsible for the following duties: supervising, commanding and reviewing
work of station and field personnel; assisting in the direction of the training
and development of personnel; assisting in budget preparation and management;
and coordinating and directing expenditures, material acquisition, and maintenance.
The Police Captain position is the commanding officer for one to several divisions of the Police
Department. The Police Captain plans, coordinates, and controls the activities
of division personnel regarding allocation and deployment of personnel and
equipment as well as evaluates performance, recommends strategies and develops
policies and procedures regarding division activities. Your letter lists the following
job functions of the Police Captain: conducting and participating in training
courses; performing employee appraisals on subordinates; holding subordinates
accountable for rules, regulations and written directives; disciplining
subordinates; making decisions in accordance with laws, regulations and
policies; and assisting in budget preparation and management.
The Fire Battalion Chief performs work under the direction of the Assistant Fire Chief but manages and
provides leadership for a section of the Fire Department. The position involves
managing the administrative and operational functions of the assigned section
while integrating the Department’s goals into day-to-day operation. The Fire
Battalion Chief position is responsible for the following activities: enforcing
and implementing rules, regulations, procedures and values of the Fire
Department; directing activities of personnel; taking proper action in all
emergency situations until relieved by higher ranking officer; coordinating
pre-fire planning, company inspection activities, and conducting routine fire
cause investigations; preparing, reviewing and processing reports and records;
and assisting in necessary research and preparation of budget needs. The
completed questionnaire attached to your letter states that all three positions
spend 50% or more of their time in management, customarily and regularly direct
the work of at least 2 full time employees, and make suggestions regarding the
hiring, firing, advancement and promotion of other employees which are given
particular weight.
You have stated that the employees in question are paid at least $455 a week on a salary basis as is
defined in 29 C.F.R. § 541.602. Based on the information that you provided
regarding the primary duties of each position, the three positions are exempt
under the executive exemption, as explained below. We note that job titles
alone are “insufficient to establish the exempt status of an employee,” and the
exempt status of any particular employee turns on “whether the employee’s
salary and duties meet the requirements of the regulations” 29 C.F.R. § 541.2.
As you know, Section 13(a)(1) of the FLSA provides an exemption from the minimum wage and overtime
provisions for any employee employed in a bona fide executive, administrative,
or professional capacity, as defined by the Department. The Department of
Labor’s updated Part 541 regulations that define certain executive,
administrative and professional exempt employees were published as a final rule
in the Federal Register on April 23, 2004 (69 FR 22122). The revised
Part 541 regulations went into effect on August 23, 2004.
Revised § 541.3(b) of the Regulations states that the §13(a)(1) exemptions do not apply to police
officers, fire fighters or other first responder employees who perform work
such as extinguishing fires, rescuing crime or accident victims, performing
surveillance, pursuing or restraining suspects, interviewing witnesses, and
other similar work identified in the regulations because their primary duty is
not management or directly related to the management or general business
operations of the employer. Thus, such employees do not qualify for an
exemption as an executive or administrative employee under § 541.100 or § 541.200.
These positions also do not meet the test for an employee in a professional
capacity because there is no requirement of knowledge of an advanced type in a
field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction. 29 C.F.R. §§ 541.3(b)(1)-(4).
However, the § 13(a)(1) exemptions may apply to police lieutenants, police captains, and fire battalion chiefs positions so long as the employees in these positions meet all of the requirements set out in the Regulations. See 69 Fed. Reg.22122,
22130 (April 23, 2004) (citing e.g. West v. Anne Arundel County, Maryland, 137 F.3d 752 (4th Cir.),
cert. denied, 525 U.S. 1048 (1998)). Specifically, they may fit within the regulatory exemption for Executive Employees in § 541.100. Section 541.100
states that an employee is employed in a “bona fide executive capacity” for purposes of the exemption if the employee is:
- Compensated on a salary basis at a rate of not less than $455 per week…, exclusive of board, lodging or other facilities;
- Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
- Who customarily and regularly directs the work of two or more other employees; and
- Who has the authority to hire or fire other
employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are
given particular weight.
Because the salary requirements of the regulation are met, application of the exemption to the three positions you described turns on whether the positions meet the primary duty requirement of § 541.100(a)(2)-(4).
Meeting the requirements of § 541.100(a)(2) depends on the employees’ “primary duty” in their management position. Primary
duty is defined in § 541.700(a) as “principal, main, major, or most
important duty that the employee performs.” Factors to consider in determining
an employee’s primary duty include “the relative importance of the exempt duties
as compared with other types of duties; the amount of time spent performing
exempt work; the employee’s relative freedom from direct supervision; and the
relationship between the employee’s salary and the wages paid to other
employees for the kind of nonexempt work performed by the employee.” 29 C.F.R.
§541.700(a). It is important to remember that the primary duty determination is
based on all of the facts and circumstances in each individual case with major
emphasis on the character of the employee’s job as a whole. Further, although
the amount of time spent on exempt work can act as a guide, time is not
conclusive. However, employees who spend more than 50 percent of their time
performing exempt work will generally satisfy the primary duty requirement. 29
CFR § 541.700(b).
Section 541.102 is a non-exhaustive list that illustrates what type of activities constitutes
“management.” Your letter included job descriptions which stated that each
position involved the primary duty of management of a recognized department or
subdivision for more than 50% of the time in each case. The management duties
included, but were not limited to, selecting and training other employees;
setting work schedules; directing the work of others; evaluating worker
productivity; handling complaints and grievances; disciplining employees;
determining techniques, materials, and equipment to be used; and determining
supplies, equipment and tools to be purchased. Each of the duties that you
described is mentioned in the § 541.102 list. Therefore, so long as the
employee’s actual activities correspond with his or her job description, each
position meets the primary duty requirement of management laid out in § 541.100(a)(2).
Next, § 541.100(a)(3) states that the employee must customarily and regularly direct the work of two
or more employees. Again, you stated in your job description that the employees
in the position of police lieutenant, police captain, and fire battalion chief
regularly direct the work of at least two employees. Therefore, those positions
meet the second part of the “executive” employee duties test.
The third duties requirement under the executive exemption is that the employee must have the authority to
hire or fire other employees or have their suggestions and recommendations as
to the hiring, firing, advancement, promotion or any other change of status of
other employees be given particular weight. 29 C.F.R. § 541.100(a)(4). In
determining whether an employee’s suggestions and recommendations are given
“particular weight,” factors such as whether it is part of the employee’s job
to make such recommendations, the frequency with which such recommendations are
made or requested, the frequency with which the recommendations are relied
upon, among others, are relevant. However, the regulations do not require the
employee to have authority to make the ultimate decision and a higher level
manager’s recommendation may be given more importance. 29 C.F.R. §541.105. The
questionnaires you provided stated that each employee’s recommendation is given
particular weight while others make the final decision regarding hiring,
firing, advancement, or promotion of other employees (due to the civil service
system). Thus, this requirement appears to be satisfied.
Accordingly, the duties described in your letter are sufficient to qualify the City’s Police
Lieutenants, Police Captains, and Fire Battalion Chiefs as exempt from the
minimum wage and overtime provisions of the FLSA. Therefore, so long as the
actual duties performed by these employees are consistent with those described,
the referenced employees are exempt from these provisions of the FLSA.
This opinion is based exclusively on the facts and circumstances described in your request and is
given on the basis of your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that
would be pertinent to our consideration of the questions presented. Existence
of any other factual or historical background not contained in your request
might require a different conclusion than the one expressed herein. You have
represented that this opinion is not sought by a party to a pending private
litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or
litigation between a client or firm and the Wage and Hour Division or the
Department of Labor. This opinion letter is issued as an official ruling of the
Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C. 259.
See 29 C.F.R. 790.17(d), 790.19; Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir. 1990).
We trust that the above discussion is responsive to your inquiry.
Sincerely,
Alfred B. Robinson, Jr.
Deputy Administrator
Enclosures: 29 C.F.R. Part 541
* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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