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Fourth Circuit Rejects Application of Section 7(k) Exemption to Fire Investigators - Lockwood v. Prince George's County, Maryland (4th Cir. 6/29/00)

In Lockwood v. Prince George's County, Maryland, No. 99-2487, 2000 U.S. App. Lexis 15302 (4th Cir. 6/29/2000) (unpublished), fire investigators, who were employed by the Prince George's County, Maryland Fire Department and who were treated as exempt under FLSA Section 7(k), sued the county for overtime pay. The fire investigators, who investigated fires after they were extinguished, were agreed by all parties to be exempt as employees engaged in Section 7(k) "law enforcement activities" until 1997. In 1997, however, their arrest powers were taken away, ending their eligibility for that exemption. Thereafter, the county classified them as exempt employees engaged in Section 7(k) "fire protection activities." The fire investigators agued they were not engaged in fire protection activities and therefore were not subject to the exemption. (Because their claims were for the years 1997 through 1999, the December 1999 FLSA amendments defining "employee in fire protection activities," discussed above, had not yet become effective, and the DOL regulations established the governing law.)

The Fourth Circuit, applying the four-part test of 29 C.F.R. Section 553.210(a), noted there was no dispute that the fire investigators passed the first two parts of the test, i.e., they were "employed by an organized fire department or fire protection district" and they "were trained to the extent required by State statute or local ordinance."

The third part of the test (the employee must have "the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type") and the fourth part of the test (the employee must "[perform] 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") were a different matter. The court, expressly following Carlson v. City of Minneapolis, 925 F.2d 264 (8th Cir. 1991), rejected the county's argument that "a properly conducted investigation can help catch arsonists who might strike again and perhaps spot trends responsible for the starting of accidental fires" and that therefore the fire investigators' duties included "prevention" of fires. That argument, ruled the court, "stretches the term 'prevention' too far," because the fire investigators "do not anticipate, counter, or stop fires from happening."

The county attempted to argue that the fire investigators meet the third and fourth prong of the test because they "may actually be involved in controlling and extinguishing fires." The court, however, rejected that argument because the county "cannot provide one example of when any [fire investigator] actually suited up and fought a fire." That fact, the court ruled, "presents an insurmountable obstacle" because it meant the county could not demonstrate that it satisfied the twenty percent limitation on nonexempt work (such as "investigating the origins of fires and aiding in the finding of arsonists") established by 29 C.F.R. Section 553.212(a).

In view of Lockwood, all local government employers should examine their pay practices in regard to fire investigators, to ensure they have not improperly applied the Section 7(k) exemption to such employees.

Revised