Fire Fighters Local 2141 v. City of Alexandria, Va., Civ. A. No. 89-161-A

• Decision Date: 31 August 1989
• Docket Number: Civ. A. No. 89-161-A,89-009-A.
• Citation: 720 F. Supp. 1230
• Parties: INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, ALEXANDRIA LOCAL 2141, et al., Plaintiffs, v. The CITY OF ALEXANDRIA, VIRGINIA, Defendant. ALEXANDRIA COMMITTEE OF POLICE IUPA, LOCAL 5, AFL-CIO, et al., Plaintiffs, v. The CITY OF ALEXANDRIA, VIRGINIA, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

720 F. Supp. 1230

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, ALEXANDRIA LOCAL 2141, et al., Plaintiffs, v. The CITY OF ALEXANDRIA, VIRGINIA, Defendant.

ALEXANDRIA COMMITTEE OF POLICE IUPA, LOCAL 5, AFL-CIO, et al., Plaintiffs, v. The CITY OF ALEXANDRIA, VIRGINIA, Defendant.

Civ. A. Nos. 89-161-A, 89-009-A.

United States District Court, E.D. Virginia, Alexandria Division.

August 31, 1989.

Michael T. Leibig, Zwerdling, Paul, Leibig, Kahn Thompson & Driesen, Washington, D.C., for plaintiffs.

Philip G. Sunderland, Office of the City Atty., Alexandria, Va., for defendant.

MEMORANDUM OPINION

HILTON, District Judge.

International Association of Fire Fighters, Alexandria Local 2141, et al. v. The City of Alexandria, C.A. No. 89-161-A, is an action brought by thirty-six captains and lieutenants employed by the Alexandria Fire Department and one retired fire captain pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Alexandria Committee of Police IUPA, Local 5, AFL-CIO v. The City of Alexandria, C.A. No. 89-009-A, is an FLSA action brought by ten police sergeants employed by the Alexandria Police Department. Both sets of plaintiffs seek declaratory, injunctive and monetary relief, claiming they are entitled to premium overtime compensation for hours worked in excess of the statutory maximum. See 29 U.S.C. § 207(k). The City denies any liability on the basis that the employees are exempt from the FLSA overtime requirements under the Act's executive or administrative exemptions. See 29 C.F.R. §§ 541.1(f) and 541.2(e).

These cases were joined for purposes of plaintiffs' and defendant's motions for summary judgment.¹ The cross motions for summary judgment were denied June 27, 1989, because genuine issues of material fact existed. Pursuant to an agreement between the parties and leave of court, these cases are now before the court for trial on stipulated facts.

Title 29 of the Code of Federal Regulations provides that employees shall be deemed to be employed in an executive capacity if: (1) they are compensated on a salary basis at a rate not less than $250 per week; (2) their primary duty consists of managing the enterprise in which they are employed or a customarily recognized department or subdivision thereof; and (3) they customarily and regularly direct the work of two or more other employees. 29 C.F.R. § 541.1(f). Employees may fall within the administrative exemption if: (1) they are compensated on a salary basis at a rate not less than $250 per week; (2) their primary duty consists of office or nonmanual work directly related to management policies or general business operations of the employer; and (3) the office or nonmanual work includes work requiring the exercise of independent judgment. 29 C.F.R. § 541.2(e). The employer bears the burden of showing that an employee is exempt under the Act. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2228-29, 41 L.Ed.2d 1 (1974); Walling v. General Industries Co., 330 U.S. 545, 548-49, 67 S.Ct. 883, 884-85, 91 L.Ed. 1088 (1947).

The City claims that all plaintiffs are paid on a salary basis as defined in 29 C.F.R. § 541.118. Plaintiffs dispute this argument on several grounds. First, plaintiffs claim they are nonsalaried because they receive additional pay at an hourly rate for each hour worked beyond their regular schedule. This practice, however, will not defeat the executive or administrative exemption because it is expressly permitted by the labor regulations. See 29 C.F.R. § 541.118(b). Nor will the docking of leave or accrued compensatory time for absences of less than an entire day defeat salaried status. Under 29 C.F.R. § 541.118(a), an employee is considered salaried when he regularly receives a predetermined amount constituting all or a part of his compensation. While personal leave, sick leave and/or compensatory time may be part of an employee's compensation package, it does not constitute salary. Moreover, in a July 17, 1987 letter ruling interpreting agency regulations, the Department of Labor stated that while deductions in salary are not permitted for absences of less than a day, an employer may require an employee to substitute paid leave for such absences without losing the exemption. See Administrative Letter Rulings: Department of Labor, Wage and Hour Division, July 17, 1987.

However, reducing an employee's salary for absences of less than one day will defeat an executive or administrative exemption. At one time, the City had a regulation which provided for such a practice. This policy was changed on April 7, 1989, when the City Manager Vola Lawson amended Administrative Regulation ("A.R.") 6-18 to conform with federal regulation. The amendment was made retroactive to April 15, 1986, and the City undertook to identify and reimburse exempt employees whose pay had been inadvertently docked. Twenty-six employees (none of them plaintiffs) experienced unauthorized reductions, and approximately $2,200 was refunded.

Under 29 C.F.R. § 541.118(a)(6), any inadvertent deductions will not result in the loss of the exemption provided the employer reimburses the employees and promises to comply in the future. By revising its policy, the City has demonstrated its compliance with the regulation and its intent to comply in the future. In addition, the City has taken the steps necessary to identify and reimburse the affected employees. For these reasons, the City has properly utilized the "window of correction," and the exemption it seeks to establish will not be defeated on the issue of salary. See Harkins v. City of Chesapeake, No. 88-25-N (E.D.Va. Dec. 2, 1988) (§ 541.118(a)(6) still in effect and the window of correction still open).

The next step in establishing exempt status concerns the executive or administrative nature of the duty assignments. The police sergeants have occupied nine duty assignments since April 15, 1986. These assignments have been: (1) patrol sergeant; (2) vice/narcotics sergeant; (3) tactical sergeant; (4) communications sergeant; (5) criminal investigations sergeant; (6) fiscal management sergeant; (7) planning sergeant; (8) internal investigations sergeant; and (9) animal shelter sergeant. The City has decided to treat the first five duty assignments as within the executive employee exemption and the remaining four either as within the administrative exemption or as within a combined executive/administrative exemption.² The fire captains have occupied two duty assignments since April 15, 1986: (1) station commander captain; and (2) engine company captain. The City treats both assignments as within the executive exemption. The fire lieutenants have occupied four duty assignments since April 15, 1986: (1) truck company lieutenant; (2) swing lieutenant; (3) training lieutenant; and (4) administrative services lieutenant. The City has determined to treat all four lieutenant assignments as within the executive exemption while noting that the last two (training and administrative services) are also within the administrative exemption.

Of these fifteen duty assignments, the parties have agreed that eight meet the "primary duty" test of...