FLSA2005-40 — Police lieutenants, police captains and fire battalion chiefs under section 13(a)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

October 14, 2005 FLSA2005-40

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
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

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:

(1) Compensated on a salary basis at a rate of not less than $455 per week..., exclusive of
board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in which the employee is
employed or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other employees; and
(4) 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
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

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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