Jon Misewicz v. City of Memphis, Tennessee , 2014 FED App. 0279P ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0279p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JON MISEWICZ et al., ┐
Plaintiffs-Appellants, │
│
│ No. 14-5053
v. │
>
│
CITY OF MEMPHIS, TENNESSEE, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:10-cv-02593—S. Thomas Anderson, District Judge.
Decided and Filed: November 14, 2014
Before: MOORE and COOK, Circuit Judges, and STEEH, District Judge.*
_________________
COUNSEL
ON BRIEF: Thomas A. Woodley, Douglas L. Steele, Sara L. Faulman, WOODLEY &
MCGILLIVARY, Washington, D.C., for Appellants. Robert D. Meyers, GLANKLER
BROWN, PLLC, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this case alleging violations of § 207 of
the Fair Labor Standards Act, 29 U.S.C. § 207, plaintiffs-appellants (hereinafter “Plaintiffs”), fire
fighters employed by the Memphis Fire Department, appeal the district court’s grant of summary
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan,
sitting by designation.
1
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 2
judgment to defendant-appellee the City of Memphis, Tennessee on their complaint asserting
overtime pay for paramedic training time. For the reasons set forth below, we AFFIRM the
district court’s grant of summary judgment to the City of Memphis.
I. BACKGROUND
A. Statutory and Regulatory Framework
Under the Fair Labor Standards Act (“FLSA”), employers must pay their employees at
least a specified minimum wage for each hour worked and overtime for hours worked in excess
of forty in a workweek. 29 U.S.C. §§ 206, 207(a)(1). “Time spent attending employer-
sponsored lectures, meetings, and training programs is generally considered compensable.”
Chao v. Tradesmen Int’l, Inc., 310 F.3d 904, 907 (6th Cir. 2002). However, the Department of
Labor (“DOL”) regulations implementing the FLSA provide two exceptions to this general rule.
First, 29 C.F.R. § 785.27 provides that “[a]ttendance at lectures, meetings, training programs and
similar activities need not be counted as working time,” and therefore does not need to be
compensated, if four criteria are met:
(a) Attendance is outside of the employee’s regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee’s
job; and
(d) The employee does not perform any productive work during such
attendance.
Id. The other exception in the DOL regulations, 29 C.F.R. § 553.226 “Training time,” applies
only to employees of state and local governments and provides in relevant part as follows:
(a) The general rules for determining the compensability of training time
under the FLSA are set forth in §§ 785.27 through 785.32 of this title.
(b) While time spent in attending training required by an employer is
normally considered compensable hours of work, following are situations
where time spent by employees of State and local governments in required
training is considered to be noncompensable:
(1) Attendance outside of regular working hours at specialized or
follow-up training, which is required by law for certification of
public and private sector employees within a particular
governmental jurisdiction (e.g., certification of public and private
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 3
emergency rescue workers), does not constitute compensable hours
of work for public employees within that jurisdiction and
subordinate jurisdictions.
(2) Attendance outside of regular working hours at specialized or
follow-up training, which is required for certification of employees
of a governmental jurisdiction by law of a higher level of
government (e.g., where a State or county law imposes a training
obligation on city employees), does not constitute compensable
hours of work.
Id.
B. Facts and Procedure
The vast majority of facts are undisputed for the purposes of summary judgment. “The
Memphis Fire Department (‘MFD’) provides fire protection services and pre-hospital care for the
City of Memphis (‘City’),” including “paramedic ambulance services.” R. 67-6 (Def.’s Resp. to
Pls.’ Stat. Facts ¶ 1) (Page ID #900). Around 2001, the City began requiring all newly hired fire
fighters to become certified as level four emergency medical technicians (“EMT-IV”), which
“fall[s] somewhere between an EMT-B [a basic EMT] and a paramedic.” Id. ¶ 3 (Page ID #901).
In October 2007, the City began a new policy requiring all fire fighters hired after October 29,
2007, to become certified as paramedics (called EMT-P). Id. ¶ 4, 19 (Page ID #901, 907).
Plaintiffs were hired on or after October 29, 2007, meaning all were subject to the new policy.
R. 79 (Hr’g Tr. at 4) (Page ID #973). “[T]he State of Tennessee does not require fire[ ]fighters
to be certified as paramedics.” R. 67-6 (Def.’s Resp. Pls.’ Stat. Facts ¶ 5) (Page ID #901). “The
City has the sole discretion to either end the policy of requiring fire fighters to become trained as
paramedics, or to change the policy.” Id. However, Tennessee prescribes the minimum
requirements that must be met to obtain a paramedic certification, which includes mandatory
classroom instruction and clinical work. Id. ¶ 29 (Page ID #910); R. 23-6 (Def.’s Stat.
Undisputed Facts ¶ 9) (Page ID #300). It can take an individual up to eighteen months to
become trained as a paramedic. R. 67-6 (Def.’s Resp. Pls.’ Facts ¶ 29) (Page ID #910).
“[A]s early as December 2006, the City’s job description and job postings for Fire
Recruits listed the [paramedic licensure] requirement . . . as a condition of continued
employment.” R. 64-2 (Def.’s Stat. Undisputed Facts ¶ 5) (Page ID #783). The MFD required
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 4
its job applicants “to sign an ‘Availability of Applicant’ form when submitting their application
to become a fire fighter.” R. 67-6 (Def.’s Resp. Pls.’ Facts ¶ 6) (Page ID #901–02). In relevant
part, the form required an applicant to agree that “[w]ithin three (3) years of employment with
the Memphis Fire Department, you must become licensed by the State of Tennessee as a
Paramedic (EMT-Advanced), as a condition of continued employment.”1 Id. One hundred and
eleven Plaintiffs signed the forms, and “[a]ll but four . . . signed in January or February 2007.”
Id. ¶ 17 (Page ID #906). When Plaintiffs signed the forms, the MFD did not tell them that the
training would be uncompensated or off-duty. Id. ¶ 16 (Page ID #906).
“On the day they were hired, [P]laintiffs were required to sign an Acceptance Letter . . .
stat[ing] that they were hired in the position of ‘Fire Recruit.’” Id. ¶ 21 (Page ID #908). The
letter stated that a Fire Recruit’s employment is subject to certain conditions, including
successfully completing training to become certified as an EMT, but the letter did not include a
paramedic certification requirement. Id.
Once an applicant was hired, the MFD required the new hire to sign the following
training agreements, all of which stated that successful completion was a condition of continued
employment: an EMT-IV Agreement, a Firefighter I and II Agreement, and a Paramedic
Agreement. Id. ¶ 8–11 (Page ID #903–04). The MFD considers the time spent in the EMT-IV,
Firefighter I, and Firefighter II training as hours worked and therefore compensates employees
for that time. Id. ¶ 15 (Page ID #905). It “does not count the hours spent attending Paramedic
Training . . . as hours of work and does not compensate the employees for attending that
training.” Id. The Paramedic Agreement specifically provided that, “as a condition of continued
employment,” fire fighters had to “become licensed as a Paramedic (EMT-P) within three years;
perform as a paramedic; and maintain EMT-P certification.” Id. ¶ 11 (Page ID #904) (emphasis
omitted). It also stated that “[f]ailure to become licensed by the state of Tennessee as a
Paramedic . . . will be just cause for termination.” Id. While it stated that “recertification
w[ould] be at the employee’s own expense,” it did not state that employees would have to pay
1
The form also required applicants to agree that they would become certified as an EMT-IV within one
year and complete the Fire Fighter I and II Certification Programs within one and three years respectively “as a
condition of continued employment.” Id.
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 5
for initial certification “or that training w[ould] be performed off-duty and without
compensation.” Id. (emphasis omitted).
“Forty-seven . . . of the Plaintiffs were given, and required to sign, the EMT-IV and
Firefighter I & II Agreements” when they were hired in October and November 2007, “but were
not given, or required to sign, the Paramedic Agreement until September 2008.” Id. ¶ 18 (Page
ID #906–07) (emphasis omitted). “Approximately 74 [P]laintiffs signed the Paramedic
Agreement in September 2008.” Id. ¶ 19 (Page ID #906). Thirty-three Plaintiffs signed the
Paramedic Agreement when they were hired. Id. ¶ 20 (Page ID #906). Plaintiffs’ job title when
they were hired was “Fire Recruits.” Id. ¶ 22 (Page ID #908). After a one-year probationary
period, Plaintiffs were given the title of “either a fire private I or II, or a fire fighter / EMT.” Id.
All Plaintiffs have actually undertaken the mandatory paramedic training, although
“[a]pproximately five Plaintiffs were terminated or resigned their positions after they failed to
complete the paramedic training within the time permitted.” Misewicz v. City of Memphis, No.
10-2593-STA-CGC, 2013 WL 6780532, at *8 (W.D. Tenn. Dec. 19, 2013); see also R. 79 (Hr’g
Tr. at 5) (Page ID #974). Fire fighters who achieved their paramedic certification—including
Plaintiffs—“rotate between providing fire[-]fighting activities and paramedic activities during
the course of their shift[s].” R. 67-6 (Def.’s Resp. Pls.’ Facts ¶ 25) (Page ID #909). On a typical
24-hour shift, MFD fire fighters “spend twelve . . . hours on an ambulance” serving as
paramedics and “twelve . . . hours on a fire engine or fire truck” serving as fire fighters. R. 64-2
(Def.’s Stat. Undisputed Facts ¶ 12) (Page ID #784). “Between October 2007 and June 1, 2013,
MFD fire fighters responded to 563,272 Emergency Medical Services (‘EMS’) incidents
compared to only 131,113 fire incidents.” Id. ¶ 11 (Page ID #784).
On August 10, 2010, Plaintiffs filed a complaint in the U.S. District Court for the
Western District of Tennessee alleging that the City of Memphis had violated § 207 of the FLSA
by not paying Plaintiffs overtime compensation for all of the hours Plaintiffs worked in
mandatory training in excess of the hourly levels specified in 29 U.S.C. § 207. R. 1 (Compl.
¶¶ 6–10) (Page ID #4). Both parties later moved for summary judgment. The parties focused on
whether either of the exceptions to the general rule that employers must compensate employees
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 6
for training discussed above—§ 785.27 and § 553.226—applied to this case. R. 22 (Pls.’ Mot.
Summ. J.); R. 23 (Def.’s Mot. Summ. J.).
The district court denied the parties’ first motions for summary judgment on March 26,
2012. Misewicz v. City of Memphis, 864 F. Supp. 2d 688, 709 (W.D. Tenn. 2012). The court
held that the City of Memphis needed to show that the paramedic certification requirement met
only one of the two exceptions to avoid liability. Id. at 696. Next, it held that while
§ 553.226(b)(2) did not apply to the facts of this case, id. at 697, genuine issues of material fact
remained as to whether § 553.226(b)(1) applied, id. at 703. The district court also denied the
parties’ motions for summary judgment on whether § 785.27 applied because genuine disputes of
material fact existed as to whether the training was voluntary and whether it was directly related
to Plaintiffs’ job duties. Id. at 708.
On August 6, 2013, Plaintiffs filed a Renewed Motion for Partial Summary Judgment,
and the City of Memphis filed a Renewed Motion for Summary Judgment. R. 63 (Pls.’ Renewed
Mot. Summ. J.); R. 64 (Def.’s Renewed Mot. Summ. J.). The district court granted the City of
Memphis’s motion on December 19, 2013, reiterating its 2012 holding that the City needed to
meet only one of the two exceptions, and holding that as a matter of law the paramedic training
program fell within the exception provided in § 553.226(b)(1). Misewicz, 2013 WL 6780532, at
*7–8. The court did not reach whether the training program met the exception in § 785.27. Id. at
*9.
Plaintiffs appeal the district court’s grant of summary judgment. They argue that the
district court erred in: (1) declining to hold that the paramedic training program must meet both
exceptions to escape liability; (2) holding that the training program met the requirements of
§ 553.226(b)(1); and (3) declining to consider and find that the training program failed to meet
the exception in § 785.27. Appellant Br. at 2.
II. ANALYSIS
A. Does the City of Memphis Need to Meet Both Exceptions?
The district court held that the City of Memphis needs to establish that only one of the
exceptions set forth in the DOL regulations implementing the FLSA apply to the paramedic
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 7
training in order to avoid paying Plaintiffs overtime for their paramedic training. Misewicz, 2013
WL 6780532, at *8. The court found that “nothing from the face of the regulation supports
Plaintiffs’ construction that both exceptions must be proven.” Id.
Plaintiffs argue on appeal that the City of Memphis must show that the paramedic
training requirement satisfies both exceptions to escape liability. Appellant Br. at 20. First, they
claim that “the plain language” of § 553.226(a) supports their position because, instead of stating
that the general rules do not apply to public-sector employers, the regulation specifically
“reiterat[es]” that the “‘general rules for the compensability of training time under the FLSA’”
are provided in §§ 785.27 through 785.32. Id. at 21 (quoting § 553.226(a)). To read
§ 553.226(a) as not requiring that § 785.27 also be met, Plaintiffs argue, “would render Section
553.226(a)’s reference to general training requirements meaningless,” thereby violating a basic
rule of statutory construction. Id. at 22. Second, Plaintiffs claim that a November 2, 1988 DOL
Wage and Hour Division Opinion Letter shows that the DOL intended to subject public-sector
employers to both regulations because “as soon as [the] DOL found the training time to be
compensable under either one of those sections (Section 553.226 or Section 785.27 et seq.), the
inquiry stopped and the failure to meet either regulatory test rendered the training time
compensable work time under the FLSA.” Appellant Br. at 24.
The City counters that the district court correctly held that it need prove only that the
paramedic training meets either the exception in § 785.27 or an exception in § 553.226. First,
the City argues that Plaintiffs’ construction of § 553.226 violates the basic rule that “a specific
statute controls over a general statute.” Appellee Br. at 12 (internal quotation marks omitted).
Second, the City argues that the 1988 DOL Opinion Letter “lack[s] the force of law” and is
unpersuasive because it considered a situation where the training was required only under
municipal law, not state law as is the case here. Id. at 13–14 (internal quotation marks omitted).
We have never interpreted § 553.226, and, to our knowledge, no court has considered
how to construe § 553.226(a) in conjunction with § 553.226(b). We hold that the plain text of
§ 553.226, its legislative and regulatory history, and DOL Opinion Letters on § 553.226 all
indicate that the City of Memphis can escape liability by proving only that an exception in
§ 553.226(b) is met.
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 8
1. Text of § 553.226
The plain text of § 553.226 appears to create an unqualified exception to the general rule
that employers must compensate employees for time spent in training: “While time spent in
attending training required by an employer is normally considered compensable hours of work,
following are situations where time spent by employees of State and local governments in
required training is considered to be noncompensable.” 29 C.F.R. § 553.226(b) (emphasis
added). This section does not state that an exception under “the general rules” referenced in
§ 553.226(a) must also be satisfied.
The rules of statutory construction that the parties cite also support the City of Memphis’s
interpretation of § 553.226. We have held that “[i]t is a basic rule of statutory construction that a
specific statute controls over a general statute.” Edward D. Rollert Residuary Trust v. Comm’r,
752 F.2d 1128, 1133 (6th Cir. 1985). Section 553.226(b) clearly addresses a more specific
situation—state and local government employees—than the “general rules” outlined in § 785.27
et seq., which apply to public- and private-sector employees alike. Moreover, Plaintiffs’
argument that to read § 553.226(a) any other way would render it “meaningless” is not
persuasive. Appellant Br. at 22. It is true that the Supreme Court has “cautioned against reading
a text in a way that makes part of it redundant” or “mere surplusage.” Nat’l Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 669 (2007). However, under the City’s reading
of § 553.226, subsection (a) is not “meaningless.” Its inclusion makes clear that, if training
required by a public-sector employer does not meet an exception in § 553.226(b), the employer
must prove that it falls under a general exception in §§ 785.27–32 if it wishes not to compensate
its employees for training.
2. Legislative and Regulatory History
The DOL promulgated § 553 in response to the Fair Labor Standards Amendments of
1985 (hereinafter the “1985 Amendments”). Pub. L. No. 99-150, 99 Stat. 787 (codified at
29 U.S.C. § 201 et seq.); Application of the Fair Labor Standards Act to Employees of State and
Local Governments, 52 Fed. Reg. 2012-01 (Jan. 16, 1987). Congress passed the
1985 Amendments in the wake of the Supreme Court’s decision in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985), overruling its decision in National League
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 9
of Cities v. Usery, 426 U.S. 833 (1976), that the extension of FLSA coverage via amendments in
1966 and 1974 to state and local government employees engaged in “traditional governmental
functions” was unconstitutional. H.R. REP. NO. 99-331, at 6–8 (1985); S. REP. NO. 99-159, at 5–
8 (1985). The 1985 Amendments do not specifically direct the DOL to promulgate § 553.226.
But the overall spirit of the 1985 Amendments’ specific provisions—such as allowing state and
local government employers to grant compensatory time off with pay in lieu of cash overtime
wages to their employees in certain situations, Pub. L. No. 99-150 § 2(a)—reflect a desire to
apply the FLSA to state and local government employers while at the same time making some of
its requirements less burdensome given their unique situation. For example, the Senate Report
on the 1985 Amendments explains that while “[t]he Committee is not retreating from the
principles established by Congress in the 1966 and 1974 FLSA amendments” that applied the
“rights and protections” of federal and private-sector employees to “employees of states and their
political subdivisions,” “[a]t the same time, it is essential that the particular needs and
circumstances of the States and their political subdivisions be carefully weighed and fairly
accommodated.” S. REP. NO. 99-159, at 7 (emphasis added).
The limited history of § 553.226 similarly indicates that the DOL promulgated it in the
spirit of easing the burden of the FLSA for state and local government employers. An earlier
version of § 553.226 included a version of what is now § 553.226(b)(1) (called § 553.226(c)),
but not what is now § 553.226(b)(2). Application of the Fair Labor Standards Act to Employees
of State and Local Governments; Fire Protection and Law Enforcement Employees of Public
Agencies, 51 Fed. Reg. 13413-01, 13420 (Apr. 18, 1986). The DOL explained that “Section
553.226(c) incorporates into the regulations long-standing interpretations concerning time spent
in attendance at specialized or follow-up training which is required by law for certification of
employees. . . . [T]he Department intends to apply the same hours worked principles to both
public and private workers with respect to such specialized training.” Id. at 13415. The
reference to “long-standing interpretations” appears to be to a 1980 DOL Opinion Letter in
which the DOL opined that an employer does not violate § 785.27(b) if it requires attendance at
state-required training. Wage and Hour Opinion Letter WH-504, 1980 WL 141338 (Oct. 23,
1980) (hereinafter “1980 Opinion Letter”). And in the course of promulgating § 556.226, the
DOL received comments from the National League of Cities that “the proposed test for exclusion
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 10
from hours worked, namely that such training be required for both private and public sector
employees, is too restrictive,” since “State law for certain types of specialized training often only
applies to public sector employees.” 52 Fed. Reg. 2012-01, 2025 (emphasis added). In
response, the DOL revised § 553.226 to include § 553.226(b)(2). Id. at 2044. This revision
suggests that the DOL appeared to be concerned with not overly burdening public-sector
employers.
While this legislative and regulatory history is admittedly quite limited, Plaintiffs’
argument appears to be contrary to its general spirit of giving state and local government
employers greater flexibility than private employers in how they must comply with the FLSA.
As the district court noted, “the rule proposed by Plaintiffs would actually make it more difficult
for a public sector employer such as a municipal fire department to avoid FLSA liability than a
private sector employer” because public sector employers would have “to clear both the general
regulatory hurdles as well as the specific requirements of § 553.226,” whereas private employers
would need to meet only the general rules. Misewicz, 2013 WL 6780532, at *8 n.26.
Moreover, the DOL appeared to characterize the exceptions in § 553.226(b) as
independent exceptions. In explaining its decision to include subsections (b)(1) and (2) in its
final version of § 553.226, the DOL stated that “[t]he Department . . . has rewritten this section
. . . by specifying two separate criteria, each of which, standing on its own, would constitute such
training time as noncompensable.” 52 Fed. Reg. 2012-01, 2025 (emphasis added). The DOL did
not state that public-sector employers also would have to show that training time was non-
compensable under the “general rules” provided in §§ 785.27 to 32. Id.
3. DOL Opinion Letters
While as a general matter “‘opinion letters . . . do not warrant Chevron-style deference,’”
Beck v. City of Cleveland, 390 F.3d 912, 919 (6th Cir. 2004) (quoting Christensen v. Harris
Cnty., 529 U.S. 576, 587 (2000)), such letters can be persuasive authority under Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944), to the extent that they are thorough, well-reasoned, and
consistent with the agency’s earlier and later opinions. Chao v. Occupational Safety & Health
Review Comm’n, 540 F.3d 519, 526 (6th Cir. 2008).
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 11
No DOL opinion letter directly addresses whether both exceptions must be satisfied. But
opinion letters in which the DOL considers the compensability of training programs under
§ 553.226 indirectly provide some insight. To be sure, their persuasive value is not great given
that none provides thorough reasoning that directly addresses this issue. To the extent they
suggest anything, however, they appear to weigh more in favor of the City’s reading of
§ 553.226.
The 1988 Opinion Letter cited by Plaintiffs does not strongly support Plaintiffs’ position.
In the letter, the DOL explained that the city in question could not invoke § 553.226(b) to avoid
compensating fire fighters for time spent obtaining city-mandated EMT certification because the
certification requirement was not imposed by a higher governmental body or required of private-
sector employees. Wage and Hour Opinion Letter, 1988 WL 1524535 (Nov. 2, 1988). The DOL
did not proceed to analyze whether the certification requirement met the § 785.27 exception.
Similarly, it decided that the city could not invoke § 785.27 to avoid paying fire lieutenants for
time spent in a training course that the city required all lieutenants to complete within eighteen
months of promotion to that rank, but did not address whether the training course satisfied
§ 553.226(b). Id. Plaintiffs read the letter to imply that public employers must show that their
training requirements satisfy both § 785.27 and § 553.226 because the DOL concluded that
training was compensable after finding that it failed to satisfy only one of those two exceptions.
But the facts before the DOL weaken that inference. For instance, in examining whether the
EMT training fell within the § 553.226(b) exception, the DOL noted that the training “is not
voluntarily undertaken by the employees.” Id. Subsection (b) of § 785.27 requires that the
training be voluntary for the exception to apply; therefore, another plausible reading of the
1988 Opinion Letter is that the DOL did not explicitly consider whether the exception in
§ 785.27 is satisfied because it was told to assume that the second of four required criteria for it
to apply was not present. And while the DOL did not specify the source of the lieutenant’s
training requirement, it explained that such training was “a condition of promotion to the rank of
fire lieutenant and continued employment in that rank.” Id. A city’s internal criteria for
promoting city employees will likely fall outside of § 553.226 in most cases because such criteria
are unlikely to be governed by state law or applied equally to private-sector employees.
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 12
Moreover, several other DOL Opinion Letters engage in analysis that contradicts
Plaintiffs’ reading of § 553.226. For example, in a 2006 Opinion Letter, the DOL considered
whether a police department would have to compensate officers for training it requires officers to
undergo before carrying off-duty firearms. Wage and Hour Opinion Letter, 2006 WL 1836647,
at *1 (June 1, 2006). The DOL concluded that the training fell within § 553.226, and therefore
the police department did not need to compensate its officers for the training. Id. at *2. The
DOL did not then consider whether the training program also fell within the exception in
§ 785.27, as Plaintiffs’ construction of § 553.226 would require. Id. At least two other opinion
letters proceed similarly. See Wage and Hour Opinion Letter, 1999 WL 1788163 (Sept. 30,
1999) (concluding that required training for fire fighters to maintain EMT certification granted
through the state did not need to be compensated because it fell within § 553.226, without
analyzing whether it also fell within the exception in § 785.27); Wage and Hour Opinion Letter,
1990 WL 10536201 (Feb. 5, 1990) (concluding that training for recertification of paramedics did
not need to be compensated because it fell within § 553.226(b)(1), without analyzing whether it
also fell within the exception in § 785.27).
In sum, we hold that the plain text of § 553.226, its legislative and regulatory history, and
DOL Opinion Letters on § 553.226 all indicate that this section provides a stand-alone exception
to the general rule that training time is compensable. The City of Memphis does not need to
compensate Plaintiffs for training that satisfies an exception in § 553.226(b).
B. Does the City of Memphis Satisfy the Exception in § 553.226(b)(1)?
The district court held that “the exception set forth in § 553.226(b)(1) applies under the
facts presented.” Misewicz, 2013 WL 6780532, at *8. First, it reaffirmed its holding in its
2012 order that “Tennessee law required Plaintiffs, much like any public or private sector
employee performing paramedic-level care, to obtain paramedic certification by attending the
training mandated for paramedics under Tennessee law.” Id. (footnote omitted). The court
explained that, while “Plaintiffs’ contention” that “paramedic training is not required by law for
fire fighters” is true in that “there is no requirement under Tennessee law that fire fighters must
also be certified as paramedics,” “the undisputed evidence shows that the MFD did not hire
Plaintiffs to perform simply as fire fighters but to perform as both fire fighters and paramedics.”
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 13
Id. As support, the court pointed to the undisputed evidence that Plaintiffs now actually spend
half their time as fire fighters and half their time as paramedics after having obtained paramedic
certification. Id.
Plaintiffs do not appeal the district court’s ruling that Tennessee law requires private- and
public-sector employees engaged in paramedic-level care to be certified, id., or that Tennessee
law specifies the requirements to become certified. They instead insist that the relevant issue is
whether state law requires fire fighters to be cross-trained as paramedics. Appellant Br. at 35.
They then reiterate that “[t]he undisputed facts show that the paramedic cross-training
requirement was an MFD policy that the MFD imposed on itself” and that neither Tennessee law
nor any other law requires that public- and private-sector fire fighters be cross-trained as
paramedics. Id. at 38–39. Finally, while Plaintiffs do not contest the district court’s
characterization of the division of their duties after they completed paramedic training or that
they eventually signed the Paramedic Agreement, they stress that “[a]t the time of hire, the
plaintiffs were employed as fire fighter recruits,” “[t]heir Acceptance Letter does not identify the
plaintiffs as ‘fire fighter / paramedic’ recruits,” and they did not perform paramedic duties until
three years after being hired. Id. at 40.
The City of Memphis responds that § 553.226(b)(1) applies because “Plaintiff fire
fighters were, in fact, hired to be fire fighter/paramedics” and that “[t]here is no question that
they were regularly assigned to perform paramedic duties.” Appellee Br. at 25. While the City
does have “sole discretion to maintain or discontinue its policy requiring fire fighters to become
certified paramedics,” Tennessee law requires that paramedics be certified and “the City has no
power to change the minimum requirements for obtaining paramedic certification.” Id. at 25–26.
The City also disputes that Plaintiffs did not have adequate notice at the time they were hired that
they would be expected to perform as both fire fighters and paramedics. Id. at 17–18.
Thus, the key dispute is whether, under § 553.226(b)(1), determining that training is
“required by law for certification” should focus on the job description provided to an employee
at the time of hiring, and whether those duties require certification under state law, or whether
the dispositive issue is whether the employer actually requires the employee regularly to perform
duties after training that require state certification. If the former, arguably a genuine dispute of
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 14
material fact exists as to whether sufficient notice was provided to Plaintiffs at the time of hiring
that they were being hired to be both fire fighters and paramedics. If the latter, however, the City
would be entitled to judgment as a matter of law based on the undisputed facts demonstrating
that Plaintiffs split their time as fire fighters and paramedics after training.
No circuit court has construed “required by law for certification” in § 553.226(b)(1) or
(b)(2). In fact, § 553.226(b) is mentioned in only one circuit court decision, and the Fifth Circuit
did not hold whether the exception applied to the facts of the case. Moreau v. Klevenhagen,
956 F.2d 516 (5th Cir. 1992). Nor does the legislative or regulatory history or any DOL Opinion
Letter specifically address this issue.
From the face of the regulation, it does not appear that it is dispositive whether
employees are informed when they are hired of all of the duties that they will be expected to
perform that require state certification. Clear notice at the time of hiring to employees of
required training can be relevant to § 785.27(b)’s requirement that the training be voluntary, but
there is no such explicit requirement in § 553.226(b). As explained in the 1980 Opinion Letter,
whose interpretation § 553.226 appears to have codified, employers do not need to compensate
employees for state-required training for two reasons: because it is the state that has “usurped
and controlled the employee’s time,” not the employer; and because the state sets the training
requirements, the training is “of general applicability, and not tailored to meet the particular
needs of individual employers,” and therefore presumably the employee could use the
certification to obtain employment elsewhere. Wage and Hour Opinion Letter WH-504 (Oct. 23,
1980). The DOL reached this conclusion despite the fact that it analyzed the training program
under § 785.27, subsection (b) of which specifically requires that the training be “voluntary.”
The DOL did not separately consider whether the employee voluntarily agreed to the training—
for example by accepting employment while knowing that the training would be required. See
also Wage and Hour Opinion Letter, 2001 WL 1592778 (May 3, 2001) (reiterating the analysis
of the 1980 Opinion Letter); Wage and Hour Opinion Letter, 1989 WL 1632933 (Aug. 2, 1989)
(same); Wage and Hour Opinion Letter, 1985 WL 1087351 (Dec. 30, 1985) (same).
Moreover, the relevant Tennessee laws and regulations defining who must undergo
training to be certified as a paramedic do so by focusing on the duties performed. See, e.g.,
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 15
TENN. COMP. R. & REGS. 1200-12-01-.04(1)(a)8. (“‘Paramedic’ means a person who has
successfully completed an accredited Paramedic Program[,] . . . has qualified by examinations to
perform pre-hospital emergency patient care, and provides basic and advanced emergency
medical care . . . .”) (emphasis added); TENN. CODE ANN. § 68-140-311(a)(8) (prohibiting
“performing or attempting emergency care techniques or procedures without proper permission,
license, certification, [or] training . . . .”) (emphasis added). Thus, individuals who actually
perform paramedic-level care must be certified; it does not matter if they are hired as
“paramedics” by their employers.
Therefore, under § 553.226(b), the determination of whether training is “required by law
for certification” should focus on whether the employer actually hired the employee to perform
duties that require state certification, as judged by whether the employee is asked regularly to
perform those duties after training.
The one relevant district court case cited by Plaintiffs, Allen v. City of Texas City, No. G-
10-176, 2012 WL 1316568 (S.D. Tex. Mar. 6, 2012), does not contradict this reading of
§ 553.226(b). In that case, the court held that fire fighters employed by Texas City were required
to be compensated for training the City required them to undergo to receive numerous
certifications beyond the two certifications required by state law for municipal fire fighters.
Allen, 2012 WL 1316568, at *3. Plaintiffs argue in their Reply Brief that, because Texas law
sets the standards for certification of one of the training requirements that the district court held
needed to be compensated, Allen reached the precise issue in this case. Appellant Reply Br. at
15 n.3. However, the Allen court did not examine whether the plaintiffs were actually asked to
perform and were in fact performing duties that would require the additional certifications.
Allen, 2012 WL 1316568, at *3. Indeed, it noted that the exception in § 553.226(b) “is
predicated on the fact that the specialized training [is] required by law for certification to
perform a particular job.” Id. (emphasis added).
In this case, it is undisputed that all Plaintiffs were hired after the MFD implemented the
policy requiring fire fighters to become certified as paramedics, and that all signed the Paramedic
Agreement. After becoming certified, Plaintiffs were asked to spend half of their time
performing paramedic duties. On a typical twenty-four-hour shift, MFD fire fighters who are
No. 14-5053 Misewicz et al. v. City of Memphis, Tenn. Page 16
certified as paramedics—including Plaintiffs—spend twelve hours on an ambulance serving as
paramedics and twelve hours on a fire unit serving as fire fighters. And MFD fire fighters appear
to respond to more incidents requiring paramedic skills than fire suppression skills: between
October 2007 and June 1, 2013, MFD fire fighters responded to 563,272 emergency medical
services incidents as compared to 131,113 fire suppression incidents. Thus, the MFD hired
Plaintiffs to perform both fire-fighting and paramedic duties.
In order to perform the paramedic duties of their job, Tennessee law requires that
Plaintiffs attend training to become certified as paramedics. Therefore, the City’s paramedic
certification program meets the exception in § 553.226(b)(1), and the district court properly
granted the City summary judgment. Plaintiffs were not required to undergo the paramedic
training but then not asked to perform paramedic duties, a situation that might render
§ 553.226(b)(1) inapplicable. Nor does it matter that Plaintiffs performed paramedic duties only
after training. Our statement in Chao v. Tradesmen International, Inc. is equally applicable here:
“We do not see why the employer should be penalized for allowing a potential employee to
begin earning income while striving to meet certain prerequisites for the job when the employer
could just as easily withhold employment until successful completion of all the job
requirements.” 310 F.3d at 910. The MFD did not violate 29 U.S.C. § 207 by failing to pay
Plaintiffs overtime compensation for the hours of training required to become licensed by the
State of Tennessee as paramedics.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s grant of summary
judgment to the City of Memphis.