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Fourth Circuit Holds FLSA Executive Exemption Applies to Captains and Lieutenants in the City of Norfolk's Division of Fire and Paramedical Services - Wise v. City of Norfolk (4th Cir. 5/20/00)

 In Wise v. City of Norfolk, No. 99-2135, 2000 U.S. App. Lexis 11962 (4th Cir. 5/30/2000) (unpublished), captains and lieutenants in the City of Norfolk's Division of Fire and Paramedical Services sued the city seeking overtime pay under the FLSA. They claimed that the city had improperly classified them as exempt "executive" employees, and that they instead should have been classified as non-exempt "working foremen."

 There was no dispute that the plaintiffs' received salaries of more than $250 per week, and that therefore the "short test" applied. There also was no dispute that they each supervised at least two people. Therefore, the issue was "whether they spent at least 50% of their time managing."

 The plaintiffs argued their primary duty was not management because they had no authority to "determine issues such as staffing and which areas of [the] city are covered by a particular fire station." The court rejected that argument, because the plaintiffs conceded that they "retain the power to assign tasks and otherwise allocate resources within a particular ladder company or a particular fire station."

 Addressing the "working foreman" argument, the court acknowledged that "these responsibilities are exercised largely while performing the other line tasks of non-managerial fire fighters." However, the court found that doing so did not render them "working foremen," explaining that the plaintiff officers in West v. Anne Arundel County, 137 F.3d 752 (4th Cir. 1998), and Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993), "also managed as they worked along side officers of lower rank -- indeed, in those cases the relationship between line work and management was similar to that in this case -- and we, nonetheless, concluded that the plaintiff captains, lieutenants, and even sergeants were exempt from the overtime provisions of FLSA."

 The plaintiffs also argued that they were "working foremen" because they lacked management discretion."  The court, citing Donovan v. Burger King Corp., 672 F.2d 221 (1st Cir. 1982) ("Burger King assistant managers were executive employees under FLSA Section 213 even though they were unable to make any significant or substantial decisions on their own, in part because one can still be 'managing' if one is in charge, even while physically doing something else"), rejected that argument as well, stating that "the absence of discretionary and decision making authority without more, however, has been soundly rejected as determinative in qualifying employees as 'working foremen' rather than executive employees exempt from FLSA overtime requirements."  "The appropriate analysis," explained the court, "requires an evaluation of all of the facts of the employee's position.... Limited discretion alone does not transform an employee into a 'working foreman' if the employee also has substantial supervisory and managerial responsibilities that consume more than 50% of his time -- even if he performs those supervisory and managerial responsibilities while physically doing something else."

The Fourth Circuit therefore found that the plaintiff's primary duty was management, that the "short test" was satisfied, and that the classification of the plaintiffs as exempt executive employees was proper.

Wise illustrates some of the challenges which can be asserted to the classification of employees under the executive exemption. Employers wishing to guard against such challenges should ensure that they can establish that the actual job duties of the exempt employees meet the requirements for the exemption. At a minimum, the employees' job descriptions and evaluations should reflect the status of management as the employees' primary duty.

Revised