EMS Supervisor - OT or not?

DB · February 2005

The City has a 24/7 EMS operation. There are 3 EMS Supervisors who work 24 hours shifts (the same as their crews) and perform duties that meet the executive exemption (supervise 2 or more full-time employees). They do perform EMS duties but more than 50% of their time is spent on supervisory/managerial tasks.

I'm now being told that the Aug 2004 changes to FLSA pertaining to first responders means that the EMS Supervisors must now be paid overtime. I've read the DOL Fact Sheet #17J about First Responders and I just don't see where it says to throw out the executive exemption.

Has anyone else seen/heard about this?

Shadowfax · February 2005

I can't comment on 17j because I have not seen it (we do not have emergency responders) but as I read the regs, the old 'occasional' non exempt work has been replaced with 541.106 con current duties test, which winds up saying concurrent duties won't disqualify if all the requirements of 541.100 are met. I'd be careful about relying on the 50% time test as well, because 'primary duty' is now defined at 541.700 a bit differently than before. My admittedly non-studied reaction is that the regs have 'lightened up' a bit in theis area, but under the old regs, I would have been very reluctant to have your supervisor an exempt. As I read all those old firefighter cases, where even battalion chiefs were not exempt, its hard to imagine how your supervisor was exempt, unless he supervised a ton of folks per shift, and only performed 'occasional', now 'concurrent' non exempt on a very limited basis. Where I think you are helped by the new regs is the department or subdivision provision of 541.103, but w/o better info on primary duty, I would probably go with non exempt, at least until I requested a DOL opinion letter.

MaryHR · February 2005

We are a fire dept and our ee's who work 24 hr shifts are all non-exempt. Even the ones who supervise. We don't follow the 50% rule because part of their supervisory time comes in when they are on a scene. They are "first responders" even though they are also supervisors.

I probably didn't explain that very well, but I hope it makes some sense. x:D

Shadowfax · February 2005

I agree. This is a real interesting area, and I have always struggled with the fire dept and the police dept clasifications. I once lost an exempt issue in a 7 man police dept, and the claimant was the chief. Problem was he pulled a shift pretty much like everyone else, although he was always on days and did his magmt stuff while on his shift. Since then, I've always decided to err on the side of caution and unless I am absolutely convinced it is a safe exempt, i make in non. BTW I once got a DOL opinion letter in 20 months - pretty good huh?

MaryHR · February 2005

It is definately an interesting issue. One I continue to learn about daily (and I have been here 5 years). Anytime you have ee's working outside the "norm" you have to be careful and I always agree to "err on the side of caution". We are a fast growing dept. and in the last year we have encountered more exempt/non-exempt issues than I ever thought possible. And I am sure we will encounter more as we add more personnel this year. :-S

DB · February 2005

That's the problem I'm having - the way the new regulations have been presented to me the police captains and lieutentants could be a "first responder" because, depending on the magnitude of the problem, they could be performing the duties listed under first responders. On a daily basis they supervise about 20 people who do those things and don't become directly involved, BUT they are a commissioned officer with a gun and COULD do the other duties.

Thanks for the citations listed above. I'll do more research before jumping off the cliff and I appreciate any info or experiences anyone else is willing to share.

System · February 2005

Law enforcement and fire-fighters are covered under a different section of FLSA; section 207k often referred to as the '7K' exemption. Police captains and lieutenants are exempt by their essential functions and though they occasionally respond, it does not change their classification. Additionally, the hours of work for the '7K' exemption are different. Law enforcement personnel may work 171 hours in a consecutive 28-day cycle before entitlement to overtime or 43 hours in a 7-day cycle, or 86 in a two-week cycle. Fire-fighters it's different: they can work 212 hours in a 28-day period, 53 in a 7-day period, or 106 in a two-week cycle.

Shadowfax · February 2005

Sam, I agree police and fire have different maxs they can work before o/t kicks in - but the problem as I understood it was exempt or not. I just think that historically, the DOL has been all over the road on this one, and I don't see the new regs as changing the qualifications that much. What concerns me about the new regs is the 'occasional' non exempt work as recurring tasks that cannot practicably be performed by nons - but are the means for the exempt to properly carry out exempt duties...what the hell does that mean? I think to some extent we are just going to have to wait for the DOL and the courts to sort through this stuff, and just as with the old regs, I'd bet we're going to be surprised by liberal judges who think the new regs unfairly ripped off folks by eliminating their o/t, and do whatever they can to put them back as non exempts. And 541.3(b)(1) is no help at all with a long list of nonexempts.."regardless of rank or pay level.." and winds up just re-iterating the 'primary duty is management' mantra, which both the DOL and the courts have been interpreting very narrowly. My guess is a lot of munis will be burned on exempts before this is all sorted out.

EMS Supervisor - OT or not?

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