O'Neal v. Barrow County Bd. of Com'rs, 90-8803
| Decision Date | 04 January 1993 |
| Docket Number | No. 90-8803,90-8803 |
| Parties | 124 Lab.Cas. P 35,761, 1 Wage & Hour Cas.2d (BNA) 306 Michael Douglas O'NEAL, Robert A. Zillman, Jerry L. Johnson, Gary L. Webb and Michael G. Walling, Plaintiffs-Appellants, v. BARROW COUNTY BOARD OF COMMISSIONERS, Billy Emmett, individually and in his official capacity as Director of Barrow County E.M.S., Don Holliday, individually and in his official capacity as Chairman of Barrow County Board of Commissioners and Larry Price, individually and in his official capacity as Operations Director of Barrow County, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Curtis G. Shoemaker, Athens, Ga., for plaintiffs-appellants.
Kathryn M. Zickert, Zickert & White, Decatur, Ga., William D. Healan, Jr., Winder, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before HATCHETT and DUBINA, Circuit Judges, and CLARK, Senior Circuit Judge.
Plaintiffs-appellants, employees of Barrow County's Emergency Medical Service, bring this appeal from the district court's grant of summary judgment for defendant-appellee Barrow County on their suit seeking to recover overtime compensation allegedly due them under the Fair Labor Standards Act of 1938 1 ("FLSA"). 743 F.Supp. 859. This case is decided along with Spires et al. v. Ben Hill County et al., 980 F.2d 683, which presents similar issues regarding the application of the overtime provisions of the FLSA to ambulance and rescue service workers. Because we find that the district court's order granting summary judgment does not dispose of all of the disputed material issues of fact, we vacate the district court's judgment and remand the case for further proceedings.
Plaintiffs are current or past emergency medical technicians ("EMTs") or paramedics employed by the Barrow County Emergency Medical Service (the "Service"). The Service responds to a variety of different calls in the County, including emergency medical calls, automobile and other accidents, crime scenes, and fire emergencies. The EMTs also perform non-emergency medical transfers of patients and are dispatched on a stand-by basis to non-emergency structure fires. The Service is an independent, free-standing agency, not connected to or operated with any fire or police agency in the County. While serving on duty but not responding to a call, the employees of the Service typically perform maintenance on their ambulances and work areas. In addition, employees are rotated through service as the dispatcher for an 8-hour segment of their 24-hour shifts. Under its overtime pay policy adopted in October of 1985, the County currently compensates plaintiffs at a rate of one-and-a-half times their regular pay rate for all hours worked in excess of 106 hours in a two-week pay period.
Section 7(a) of the FLSA mandates that an employer must compensate an employee at an overtime rate for all work performed in excess of forty hours during a workweek. 2 Section 7(k), however, provides a partial exemption for specified public agency employers: employees engaged in fire protection activities must work an aggregate of 212 hours during a work period of 28 consecutive days and employees engaged in law enforcement activities must work an aggregate of 171 hours during the same period before being entitled to overtime compensation. 3 Although not specifically mentioned in the FLSA, the implementing regulations state that "ambulance and rescue service" employees of a public agency may be treated as firefighting or law enforcement personnel for purposes of section 7(k) if they "form an integral part of the public agency's fire protection [or law enforcement] activities" 4 or if "their services are substantially related to [such] activities." 5 We are concerned here only with the latter "substantially related" standard.
Before we further consider this standard, we note that any exemption from the FLSA, including that set out in section 7(k) and the implementing regulations, must be narrowly construed against the employer. 6 We find that a narrow construction of the "substantially related" standard of 29 C.F.R. § 553.215 is particularly imperative. First, in drafting section 7(k), Congress did not specifically mention extending the exemption to ambulance and rescue service employees. Indeed, the only mention of so extending the exemption in the legislative history of section 7(k) is in a colloquy that took place on the House floor as section 7(k) was being debated; this colloquy indicates that Congress intended that the exemption be so extended only when the employees' activities "substantially include rescue and ambulance work associated with fire protection and law enforcement." 7 The intention to extend the exemption to ambulance and rescue service employees is not reflected either in the statute itself or in congressional reports related to the statute. 8 Thus, the extension as written into the regulations should be very narrowly construed. Second, the purpose of the "substantially related" standard is obviously to ensure that ambulance and rescue service personnel who are acting like firefighters and law enforcement officers are treated as such, regardless of whether they can be made an "integral part of" the fire or law enforcement department. For example, integration of an emergency medical service into the fire department may be impossible because the fire department is entirely volunteer. The purpose of the "substantially related" standard certainly is not to cast the exemption net any more broadly than does the "integral part of" test. Thus, we will construe the "substantially related" standard very narrowly. We also keep in mind that the burden of proving the exemption is upon the employer, as is the burden of proving any exemption under the FLSA. 9
In order to meet the "substantially related" standard, a two-prong test must be satisfied: 1) the ambulance and rescue service employees must 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"; and 2) these employees must be "regularly dispatched to fires, crime scenes, riots, natural disasters, and accidents." 10 On the record submitted to the district court, the County failed to meet its burden of proving that, as a matter of law, it met this two-part test. We discuss the two parts of the test separately below.
To meet the first prong of the "substantially related" standard, the County must show that the EMTs "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...." 11 The Department of Labor, in a Wage and Hour Division Administrative Letter Ruling, has explained this first prong of the standard as follows:
The first test requires that EMTs be trained to rescue individuals who have been injured or who are in danger of being injured. Under these circumstances, the term "rescue" refers to actions taken to free a victim from imminent danger or harm by the most expeditious means. In many cases, this may require an EMT to take action beyond merely applying medical treatment such as bandaging, administering oxygen, or transporting an individual to a hospital. For instance, there may be situations where the EMTs, as the first responders at the scene of an automobile accident, must extricate an injured person from a vehicle in order to begin treatment and preparation for movement as soon as possible.... This means that an EMT must be properly trained to operate special types of equipment, such as hydraulic "spreaders" or chemical foam extinguishers, in case they are available for their use at the accident scene. Therefore, we interpret the requirement that an EMT be "trained to rescue" as meaning that the individual has knowledge of the basic life-saving procedures and life support procedures (i.e. CPR, administering oxygen, and extrication techniques). However, it is not necessary for an EMT to routinely perform any or all of these procedures in order to meet the requirements of the first test referred to above. 12
We find the Department of Labor's interpretation persuasive. Accordingly, we hold that EMTs are "trained to rescue" only if they have knowledge of extrication techniques, that is, only if they have some specific training in methods of "free[ing] a victim from imminent danger or harm by the most expeditious means."
The district court erred in its determination that the County proved compliance with the "trained to rescue" requirement because the evidence offered by the County failed to show that such training was a prerequisite to employment. We remand for the district court to require the County to further develop the facts regarding its training requirements and for the court to determine whether the County meets the "trained to rescue" requirement as interpreted in the Department of Labor's Letter Ruling.
To satisfy the second prong of the "substantially related" test, the County must show that the EMTs "are regularly dispatched to fires, crime scenes, riots, natural disasters and accidents." 13 The Department of Labor has said:
The second test to determine if activities are 'substantially related' to fire protection or law enforcement is that EMTs must be 'regularly dispatched' to such things as fires or accidents.... There is no specific frequency of occurrence which establishes 'regularity'; it must be determined on the basis of the facts of each case. 14
Although we agree with the Department of Labor that a case by case analysis is appropriate, we establish here some guidelines for the analysis.
We first consider...
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