2001 News - Adams v City of Norfolk

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12/06/01: Adams v. City of Norfolk - Fourth Circuit Approves Application of FLSA Section 7(k) Exemption to Firefighters Employed as EMS Workers

In Adams v. City of Norfolk, Nos. 00-2269, 00-2315, 2001 U.S. App. Lexis 26034 (4th Cir. 12/6/2001), a Fair Labor Standards Act suit was filed by certified firefighters who also provided emergency medical services as part of their job duties at the Norfolk Department of Fire and Paramedical Services. These firefighters worked in 24-hour shifts, dividing their time between fire and EMS units. During their shifts, they could be called upon to fight fires, to render medical services at scenes of fire emergencies, or to perform medical services at non-fire emergencies. They sued the City of Norfolk for overtime pay, claiming they were improperly classified as partially exempt under FLSA Section 7(k).

The firefighters argued that the exemption did not apply to them because their EMS work was non-exempt and exceeded the twenty percent limitation established in 29 C.F.R. Section 553.212(a) ("the performance of ... 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"). The Fourth Circuit, however, found that their EMS work was exempt under the circumstances of this case. The court explained that 29 C.F.R. Section 553.212(a) applies the twenty percent limitation not to all nonexempt work, but rather to "nonexempt work "which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities." Thus, it explained, the question was whether their EMS work was "performed as an incident to or in conjunction with their fire protection ... activities."

The court had no difficulty finding that the firefighters' EMS work was "performed as an incident to or in conjunction with their fire protection ... activities" when they were responding to fire emergencies. It observed:

Both fire units and EMS units respond to fire emergencies. If an EMS unit is the first on the fire scene, it may well fight the fire, leaving medical services to be performed by a back-up rescue unit. If the fire unit is first to the scene, then the EMS unit performs medical services, if it is not otherwise needed. It goes without saying that when appellants fight fires, whether on duty with a fire unit or with an EMS unit, they are engaged in fire protection activities. It is no less obvious that the performance of medical duties at the scene of a fire is, at the very least, "incident to or in conjunction with" fire protection activities....

"The more difficult question," stated the court, "is whether [the firefighters'] performance of EMS duties at non-fire emergencies is "incident to or in conjunction with [their] fire protection activities," and therefore also exempt." However, the court held that "we are satisfied that, even when performing medical services at non-fire emergencies, appellants are still subject to the FLSA's exemption from overtime pay requirements." It explained:

First, even when appellants are responding to non-fire emergencies, they are, of course, yet trained firefighters. Second, while at non-fire emergencies, appellants may be called away to fire emergencies. Third, when called away from a non-fire emergency, appellants must and do, when directed, actually fight fires. Indeed, so integrated are appellants' firefighting and EMS duties that appellants are required to have their firefighting tools with them when performing services at non-fire emergencies so that they are ready to fight fires, if called upon to do so.

Therefore, stated the court, "under these circumstances, we believe [the firefighters'] performance of medical services even at non-fire emergencies is sufficiently 'incident to or in conjunction with their fire protection activities' as to satisfy the requirements of section 553.212(a)."

This conclusion, the court noted, was supported by the Department of Labor's position, expressed in a 1995 opinion letter, that "firefighters who are cross-trained as EMS employees qualify for exemption under [Section 7(k)] as fire protection employees where they are principally engaged as firefighters meeting the four tests outlined in 29 C.F.R. Section 553.210(a) and where the EMS functions they perform meet the tests described in 29 C.F.R. Section 553.215 for ambulance and rescue employees." The court found that the EMS duties performed by the firefighters met the requirements for exemption of ambulance and rescue employees because, "by virtue of their EMS and fire training, they satisfy section 553.215(a)(1), and ... they are regularly dispatched to fires, crime scenes, riots, natural disasters, and accidents, as section 553.215(a)(2) additionally requires."

In regard to the "regularly dispatched requirement, the court explained that under its 1998 ruling in Roy v. County of Lexington, "to establish dispatch regularity, one must show 'some frequency,' which would seem best proved by two kinds of evidence -- evidence that many fire or police dispatches include EMS teams and (or) evidence that numerous EMS calls were dispatched to section 553.215 emergencies." As to the first type of evidence, the court confirmed that "the existence of a regular procedure by which [EMS] workers are notified and dispatched to events relating to firefighting or law enforcement activities will suffice to establish that many fire and police dispatches include EMS teams." The court further stated that "evidence that most fire or police dispatches include EMS teams, even if such calls only comprise a minority of EMS' total calls, is itself sufficient to satisfy the 'regularly dispatched' requirement." Applying the later principle, the court found that Norfolk had met the "regularly dispatched" requirement because it had shown that "the City has in place a standardized procedure (the Unit Response List) for the notification of, and dispatch to, firefighting events," and "rescue units are dispatched to the majority of law enforcement calls answered by NFPS, with fire apparatus to the vast majority of accident calls, and with fire apparatus to all structure fires and hazardous materials calls." In addition, the court noted that "NFPS rescue units responded to an average of 451.89 fires, law enforcement, and/or accident calls per 21-day work period; that is, on average, rescue units respond to 21.5 calls per day (2.15 calls per day per rescue unit) related to fire, law enforcement, and/or accidents," and stated that "this evidence amply demonstrates that appellants are 'regularly dispatched' to fires and other accidents."

The court lastly considered activities such as EMS training and equipment maintenance, and waiting time between calls. The court ruled that, because the firefighters' performance of medical services at non-fire emergencies was incidental or in conjunction with fire protection activities, "it follows that their activities undertaken in support of their EMS duties, such as EMS training and equipment maintenance, are likewise exempt." It further ruled that the firefighters' being engage in "personal activities while awaiting calls, whether fire or medical, does not alter our analysis. The intervals between calls are nonetheless incident to fire protection, because they enable appellants to be available and ready to respond to emergencies when they arise."

The Fourth Circuit rejected the firefighters' arguments that its 1998 decision in West v. Anne Arundel County, in which it rejected application of the Section 7(k) exemption to EMS personnel, was controlling. It explained that, "we held that the employees there not only did not meet the section 552.210(a) requirements, but also that they exceeded the limit on nonexempt work set in section 553.212(a). In stark contrast to appellants, the West plaintiffs spent all of their time in the Emergency Medical Services division, and were prohibited by standard operating procedure from engaging in fire suppression activities."

Adams holds important lessons for Virginia local governments that wish to apply the Section 7(k) exemption to EMS employees. Two such lessons are particularly apparent.

First, an effective way to promote the applicability of the exemption to EMS workers is to consolidate and coordinate the firefighting and EMS functions in a manner similar to the approach taken by Norfolk and described in Adams. For example, EMS personnel should be tasked with fire suppression activities if they arrive at the scene of a fire before the firefighters, and should be utilized for fire suppression in addition to firefighting personnel when needed. By doing so, the local government can be in a good position to establish that the EMS work is "performed as an incident to or in conjunction with their fire protection activities."

Second, the local government can support the applicability of the exemption by meeting the requirements of the Department of Labor opinion letter referenced in Adams. To do so, it should ensure that its EMS workers are employees principally engaged as firefighters meeting the requirements of 29 C.F.R. Section 553.210(a). This means they must be "employed by an organized fire department or fire protection district," be "trained to the extent required by State statute or local ordinance, "have the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type," and "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." The local government must also ensure that they meet the requirements of 29 C.F.R. Section 553.215 applicable to ambulance and rescue employees. In concrete terms, this will mean the local government will want to be sure that its EMS workers "have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties." It will also mean that the local government should be sure the EMS workers are "regularly dispatched to fires, crime scenes, riots, natural disasters and accidents." To met the "regularly dispatched" requirement, the local government should consider adopting and following a standardized procedure by which the EMS workers are notified and dispatched to events relating to firefighting or law enforcement activities, and should keep records that will establish the EMS responses to appropriate fire, law enforcement, and accident calls.