McGavock v. City of Water Valley, Miss.

• Citation: 452 F.3d 423
• Decision Date: 12 June 2006
• Docket Number: No. 05-60396.,05-60396.
• Parties: Mark McGAVOCK, Sherman Gooch, Stewart Spence, Travis Inman, and Donald Bynam, Plaintiffs-Appellees, v. CITY OF WATER VALLEY, MISSISSIPPI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

452 F.3d 423

Mark McGAVOCK, Sherman Gooch, Stewart Spence, Travis Inman, and Donald Bynam, Plaintiffs-Appellees, v. CITY OF WATER VALLEY, MISSISSIPPI, Defendant-Appellant.

No. 05-60396.

United States Court of Appeals, Fifth Circuit.

June 12, 2006.

Sidney Ray Hill, III (argued), Clayton, O'Donnell & Walsh, Oxford, MS, for Plaintiffs-Appellees.

Gary Erwin Friedman (argued), Tori L. Winfield, Phelps Dunbar, Jackson, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GARWOOD, DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This case arises out of the application of the Fair Labor Standards Act overtime exemption for employees "engaged in fire protection activities." 29 U.S.C. § 207(k). Unless the exemption applies, the Fair Labor Standards Act ("FLSA") requires that employees be compensated at a rate of one-and-one-half times their hourly rate for all hours worked in excess of forty hours in one week. 29 U.S.C. § 207(a). The controlling issue in this case is whether the plaintiffs are employees "engaged in fire protection activities" and thereby exempt from coverage of the overtime provisions even though they spend more than 20% of their time engaged in nonexempt (non-fire protection) activities. On summary judgment, the district court held that because of their non-exempt work as dispatchers the plaintiffs were not employees engaged in fire protection activity, and therefore were not subject to the exemption. For the reasons that follow, we conclude that the plaintiffs are employees engaged in fire protection activities, and therefore REVERSE and REMAND for further proceedings.

I.

The plaintiffs-appellees are five municipal firefighters employed by the defendant, City of Water Valley, Mississippi ("the City"). The firefighters graduated from the fire academy, where they were trained in fire suppression. They have the legal authority to engage in fire suppression and are actually called upon to extinguish, control, and prevent fires and to respond to emergency situations where life, property, or the environment is at risk. However, the firefighters spend more than 20% of their workweek engaged in dispatching duties as opposed to actual fire protection activities.¹

The firefighters filed an FLSA overtime action against the City alleging that they work 24-hour shifts for 121 days of the year — approximately 53 hours per week. The complaint alleged that the firefighters are entitled to overtime pay for all hours worked in excess of 40 hours per week under § 207(a) of the FLSA. See 29 U.S.C. 207(a).

The firefighters and the City moved for partial summary judgment on the issue of whether the firefighters are "employees engaged in fire protection activities" and thus subject to the § 207(k) pay plan exemption. The district court granted the motion in favor of the firefighters. It found that there was no conflict between the Department of Labor regulation, 29 C.F.R. § 553.212, and 29 U.S.C. § 203(y) and that "[w]hatever Congress' intent was in passing § 203(y), it was not to authorize municipal employers to classify individuals as fire prevention personnel and then to assign them tasks unrelated to firefighting while depriving them of minimum wage protections." The City moved the district court to reconsider, which the district court denied. The district court certified the case for interlocutory appeal, which we accepted.

II.

A.

This court reviews a grant or denial of summary judgment de novo, and applies the same standard as the district court. See Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Additionally, we construe the FLSA liberally in favor of employees, and exemptions "are to be narrowly construed against the employers seeking to assert them ...." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960).

B.

The Fair Labor Standards Act of 1983 establishes the general rule that employees must receive overtime compensation at one and one-half times the regular rate for hours worked in excess of 40 hours during a seven-day workweek. 29 U.S.C. § 207(a).² Section 207(k) provides an exemption to that rule. Under the exemption, the overtime provisions of the FLSA are not applicable to any "employee in fire protection activities," unless he or she works in excess of 212 hours in a work period of 28 consecutive days (an average of 53 hours per week).³

Before 1999, the term "employee in fire protection activities" was defined only by Department of Labor ("DOL") regulation 29 C.F.R. § 553.210. The regulation provided a four-part test to determine which employees qualified as "employees in fire protection activities." According to the regulation, the term refers to any employee,

(1) who is employed by an organized fire department or fire protection district; (2) who has been trained to the extent required by State statute or local ordinance; (3) who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and (4) who 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.

29 C.F.R. § 553.210.

In addition, DOL regulation 29 C.F.R. § 553.212 puts a gloss on the § 553.210's definition stating that, "employees in fire protection activities," "as described in §§ 553.210" can engage in nonexempt work (activities not related to fire suppression); however, if the employee performs nonexempt work more than 20% of his total working time then he is not an "employee engaged in fire protection activity" and thus is not subject to the 207(k) special pay plan.⁴

In 1999, Congress amended the FLSA and for the first time provided a statutory definition of "employee in fire protection activities." The amendment added § 203(y) and currently states:

"an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who —

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk."

The purpose of the amendment was to "clarify the overtime exemption for employees engaged in fire protection activities." Pub.L. No. 106-151, 113 Stat. 1731 (codified as amended at 29 U.S.C. § 203(y)).

The DOL has not revised its regulations since the legislative change, even though one circuit has observed the need to revise at least § 553.210. See Lockwood v. Prince George's County, 217 F.3d 839, 2000 WL 864220 at *1 n. 1 (4th Cir.2000)(unpublished)("Still, we note that, in light of the definition of `employee in fire protection activities' provided by 29 U.S.C.A. § 203(y), the four-part regulatory definition provided by 29 C.F.R. § 553.201(a) will need to be revised.").

C.

The City argues that the DOL's 20% rule in § 553.212, which applies to employees "engaged in fire protection activities" "as defined in § 553.210," is now obsolete because the recently enacted § 203(y) supplants § 553.210's definition. The City also asserts that Congress purposefully did not include the 20% rule in § 203(y), as reflected by the plain language of the statute and by legislative history.⁵

The firefighters, on the other hand, concede that they meet the § 203(y) definition, but argue that § 553.212's 20% rule remains in effect because it is not in conflict with § 203(y). They argue that the regulation continues to limit employees considered engaged "in fire protection activities" to employees who spend 80% or more of their time engaged in fire protection activities. Because the plaintiffs spend more than 20% of their time working as dispatchers, they contend they are not "employees in firefighting activities" and therefore not subject to the 207(k) pay plan.

It is clear, and all parties concede, that § 553.210 is supplanted by the new definition in § 203(y). The only purpose of Congress in amending the statute that is clear to us, is that it intended all emergency medical technicians (EMTs) trained as firefighters and attached to a fire department to be considered employees engaged in fire protection activities even though they may spend one hundred percent of their time responding to medical emergencies. Congress did not otherwise address the 20% rule.

However, § 553.212's 20% rule is an extension of § 553.210 in that § 553.212 provides an explanation of the requirement of prong four of the § 553.210 definition. This prong requires the employee to "perform" firefighting related duties. Section 553.212 places a gloss on that requirement by making it clear that the employee meets the test so long as his firefighting duties comprise more than 80% of his total work time in a work week. It is therefore evident that the 20% rule in § 553.212 was intended to refine the now obsolete § 553.210 definition.

For the last three years, the DOL has recognized the need for further rulemaking to interpret the amended statute by announcing that it proposed to begin the rulemaking process. 71 Fed.Reg. 22902 (proposed April 24, 2006); 70 Fed.Reg. 27170 (proposed May 16, 2005); 69 Fed. Reg. 73457 (proposed Dec. 13, 2004). Unfortunately, no specific new rules have been proposed. On the other hand, the Office of Personnel Management ("OPM") recently issued Proposed Rules (which apply to federal employees) amending its regulations to the FLSA in an effort to "update and harmonize" their regulations with revisions made to DOL...