Historians view the Fair Labor Standards Act as the last true New Deal legislation. After FLSA became law in 1938, with President Franklin Roosevelt proclaiming “That's that” as he signed it into law, Congress didn't seem interested in any more legislative boat-rocking, and F.D.R. himself was shifting his focus to Hitler's march to war.

Public fire service management officials, on the other hand, viewed FLSA as irrelevant — that is, until Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), when those officials were suddenly confronted by the imposition of FLSA on the fire service workplace.

Since 1985, as circuit courts and the U.S. Supreme Court interpreted FLSA on a case-by-case basis, the U.S. Department of Labor has infrequently changed its FLSA enforcement rules. In fact, the most significant change in those rules since 1985 was the adoption of a rule redefining “firefighter.”

But on March 31, DOL announced major new amendments intended to update some long-standing and outdated FLSA rules. These amendments do not deal directly with fire service personnel, but their indirect effect could be substantial.

After publishing the amendments, the Labor Department scheduled 90 days for public comment on those amendments. By the time you read this column, DOL will be just weeks away from deciding whether to adopt its rules as proposed, or whether to adopt some special exceptions for public safety personnel that have been proposed by public safety worker representatives.

Here are the most relevant of DOL's proposed changes. Included in the proposed changes, but not summarized here, are computer and outside-sales exemptions and improper salary deductions. All quotes are from the text of the proposed amendments.

1. Increase the “salary level” portion of the executive/administrative/professional employee test from $155/week to $425/week. This would make workers earning the bottom 20% of U.S. wages (less than $425/week) eligible for overtime, no matter what job responsibilities such workers may have.

2. Establish a “super-salary test” for “highly compensated employees” at $65,000 per year, including base salary, bonuses and “non-discretionary compensation.” If such an employee performs office/non-manual work and performs one or more of the exempt duties of an executive, administrative and/or professional employee, then that employee would be exempt from FLSA overtime coverage.

3. Eliminate the non-exempt percentage work standard and independent-judgment/discretion tests and substitute the following “duties” test:

   • As a “primary duty,” employee manages enterprise or a recognized department/division; and
   • “Customarily and regularly” directs the work of two or more other employees; and
   • Has authority to hire/fire employees or has “particular weight” given to suggestions/recommendations concerning hiring, firing, advancement, promotion or other employee change of status.

4. Simplify administrative-employee exemption by focusing on two tests:

   • As a primary duty, employee performs office/non-manual work related to management/general business operations; and
   • Performs “work of substantial performance” or “performs work requiring a high level of skill or training.”

5. Rewrite the professional-employee exemption by moving away from the specialized college degree as a defining characteristic of a professional employee (where the degree is the basis for the exemption, not work experience) to a combination of college-level education, training and work experience.

The amendments that have drawn fire-service interest are the proposed super-salary rules and the professional-employee education and experience guidelines.

The super-salary proposal earned the immediate attention of the Fraternal Order of Police and the International Association of Fire Fighters. FOP President Chuck Canterbury and IAFF President Harold Schaitberger both noted that, in certain regions of the United States, veteran fire and police “working supervisors” can make $65,000 per year or more. With DOL redefining “primary duty” without any quantitative limit, fire company officer “working supervisors” making $65,000 or more per year could presumably be declared exempt for FLSA overtime pay purposes. The draft rule language that concerns firefighters reads, “[T]he term ‘primary duty’ does not require that employees spend over 50% of their time performing exempt work.…” (Subpart H — Definitions and Miscellaneous Provisions, Section 541.700, 68 Federal Register 61, at p. 15595, March 31, 2003)

Schaitberger and Canterbury propose that the DOL amendments include public safety employees in an exception to the “highly-compensated employee” section of those amendments:

“Section 541.601: Highly compensated employees

“(d) This section applies only to employees performing office or non-manual work. Carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers, teamsters, public safety employees who perform duties enumerated in 29 CFR 553.210 and .211 [These sections describe police and fire duties.] and other employees who perform manual work are not exempt under this section no matter how highly paid they might be.”

DOL's addition of work experience and training to the current college-degree standard for the professional-employee exemption was also an attention-getter:

“Section 541.204: High level of skill or training

“(a) The phrase ‘work requiring a high level of skill or training’ means administrative work requiring specialized knowledge or abilities or advanced training. The specialized knowledge or abilities need not be acquired through any particular course of academic training or study.…” [Emphasis added.]

Elsewhere in the proposed standard are statements that “registered or certified medical technologists, … registered nurses, … dental hygienists … [and] physician assistants” previously have been found by DOL to meet the professional-exemption standard.

In particular, DOL's treatment of physician assistants includes “2,000 hours of patient care experience in a military or civilian occupation, such as laboratory technology, nursing … or related activity, plus not less than one year of professional course work in a medical school or hospital” as an alternative to a four-year degree as the qualification for FLSA professional-exemption status — not very far from paramedic qualifications in some jurisdictions.

The FOP and IAFF have proposed that DOL add a new amendment: “The following occupations have been found by courts or the [DOL FLSA] Administrator not to meet the primary duty requirement for learned professionals: … Paramedics. Paramedics and emergency medical technicians who have successfully attended a year or two of community college and who have completed training courses required for state certification as a paramedic or EMT.”

DOL has given itself 90 days to review comments and suggestions, like those submitted by IAFF and FOP. For more information on DOL's proposed rule amendments, visit the DOL Web site at www.dol.gov/_sec/media/speeches/541_Side_by_Side.htm. For more information on FOP/IAFF issues and proposal, visit the FOP Web site at www.grandlodgefop.org.

It's ironic — and a little sad — that, after so many years of strenuous effort on the part of so many in the fire service to achieve recognition of firefighters as professionals, the concept of professional is set aside to reduce the undisputable educational accomplishment required of paramedics to “a year or two of community college and … training courses.”

As the Department of Labor was wrestling with amendments to its rules, Congress heatedly debated whether private employers could pay overtime in the form of compensatory time instead of cash. Governmental public safety employers are already authorized to use up to 480 hours overtime instead of cash for firefighter compensation.

On June 5, with no sign of consensus in sight, U.S. House of Representatives leaders pulled the comp time proposal from the legislative calendar, but it'll probably be back on the House floor before the end of this session of Congress.

“Supervisor” redefined in sexual harassment case

Federal civil rights law holds employers responsible for sexual harassment perpetrated (or tolerated) by supervisory personnel. If a supervisor has no reason to know of sexual harassment on the part of a co-worker, the employer is not responsible. (State law can be different; in California, for example, the employer can be liable whether the harasser is a supervisor or a co-worker). In Mack v. Otis Elevator Company, Docket 02-7056, decided April 11, 2003), the Second Circuit Court of Appeals decided that the harassing actions of an “informal supervisor” could result in an imposition of liability on the employer.

Yasharay Mack, a black woman, was an elevator mechanic's helper who had been hired by Otis Elevator in Manhattan to work with six elevator mechanics. Her work was governed by a collective bargaining agreement that provided for one of the six mechanics on the team to be “mechanic in charge.” The collective bargaining agreement gave the mechanic in charge “the right to assign and schedule work, direct the work force, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures.”

The mechanic in charge was James Connolly. According to Mack, Connolly “spoke to her and others about her appearance, stripped down to his underwear in front of her at the end of a shift, grabbed and tried to kiss her, boasted about his sexual exploits, and made sexist and racist comments to her.” (Mack's allegations were supported by several male co-workers.)

Mack testified that she complained of Connolly's behavior to his supervisor, Phil Gallina, but no action was taken. Mack then complained to her union. Following that complaint, an Otis representative met with Mack and a union representative. The Otis representative promised an investigation and offered Mack a transfer to another location in Manhattan. Mack refused the transfer, left her job and filed suit against Otis Elevator in federal district court.

When Otis Elevator and Mack each finished collecting evidence prior to trial, they each filed a motion in court asking for summary judgment. Mack argued that the harassment evidence was so overwhelming that a trial on the facts wasn't necessary; she should win as a matter of law. Otis Elevator argued, among other things, that there was no evidence that an Otis “supervisor” ever harassed Mack, so as a matter of law, Mack's case should be dismissed. The district court judge ruled in favor of Otis. Mack appealed to a Second Circuit Court of Appeals panel of three judges.

The Second Circuit did not agree with the district court judge's finding that, since Connolly could not “materially affect the terms and conditions of the victim's employment, which primarily consists of the of the power to hire, fire, demote, promote, transfer or discipline an employee,” his harassing behavior was not Otis's problem. “Connolly was Mack's supervisor for purposes of Title VII [of the Civil Rights Act of 1964] analysis,” said the Second Circuit.

“The question,” Circuit Judge Robert D. Sack wrote, “is not whether the employer gave the employee the authority to make economic decisions concerning his or her subordinates. It is, instead, whether the authority given by the employer to the employee enabled or materially augmented the ability of the (employee) to create a hostile work environment for his or her subordinates.” [Emphasis added.]

It's important to take note of two facts in connection with this case. First, the Second Circuit did not decide that Mack had been harassed; when a district court's summary judgment decision is appealed, all the winner gets out of the decision is a trial on the facts back in district court. Second, the Second Circuit makes binding decisions only for New York, Vermont and Connecticut, so fire chiefs in the remaining 47 states aren't bound by this decision. However, it is an influential court, and other courts will pay attention to the Second Circuit on the issue of defining “supervisor” for purposes of sexual harassment claims.

Fire service managers should note this decision, especially in settings where non-traditional supervisors work with other firefighters. One example is the assignment of a new firefighter to a veteran firefighter field training officer or mentor. Field training officers and mentors generally aren't recognized as traditional supervisors or as holding a traditional supervisory rank, but under Mack's “supervisor” analysis, such a non-traditional supervisor could render a fire department employer as liable for harassing behavior as any company or chief officer.

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John Rukavina is director of public safety for Wake County, N.C., and holds a law degree from the University of Minnesota School of Law. He was a 1993 FEMA Fellow at Harvard University's Kennedy School of Government and is a graduate of the National Fire Academy's Executive Fire Officer Program. He has taught for the National Fire Academy, at ICHIEFS conferences and for the Institutes of Government at the universities of North Carolina and Georgia.