Mullins v. City of NY

09-3435
Mullins v. City of NY
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2010
(Argued: November 22, 2010 Decided: August 5, 2011)
________________________________________________________
EDWARD D. MULLINS, ET AL.,
Plaintiffs-Appellants,
—v.—
CITY OF NEW YORK,
Defendant-Appellee.
Docket No. 09-3435-cv
________________________________________________________
B e f o r e : NEWMAN, CALABRESI, KATZMANN, Circuit Judges.
_______________
Appeal from the July 20, 2009 judgment of the District Court for the Southern District of New York
(Scheindlin, J.) for the defendant-appellee City of New York (“the City”), following a jury verdict.
Giving controlling deference to the Secretary of Labor’s interpretation of her own regulations, we
hold that the primary duty of plaintiffs, New York City Police Department sergeants, is not
“management,” and thus plaintiffs do not qualify for the “bona fide executive” exemption from the
overtime pay requirements of the Fair Labor Standards Act of 1938 (“FLSA” or “Act”), 29 U.S.C.
§ 201 et seq. Accordingly, we conclude that the district court erred in entering judgment for the
City, REVERSE the district court’s judgment, and REMAND with instructions to enter judgment
in favor of plaintiffs.
_______________
STEPHEN P. YOUNGER (Catherine A. Williams, A. Leah Vickers, Patterson
Belknap Webb & Tyler LLP, New York, New York; Gregory K.
McGillivary, Woodley & McGillivary, Washington D.C.; Andrew Quinn,
Quinn & Mellea, White Plains, New York, on the brief), Patterson
Belknap Webb & Tyler, LLP, New York, New York, for Plaintiffs-
Appellants.
KAREN M. GRIFFIN, Assistant Corporation Counsel (Francis F. Caputo,
James Lemonedes, on the brief), for Michael A. Cardozo, Corporation
Counsel of the City of New York, New York, New York, for Defendant-
Appellee.
M. PATRICIA SMITH, Solicitor of Labor; Jennifer S. Brand, Associate
Solicitor; Paul L. Frieden, Counsel for Appellate Litigation; Dean A.
Romhilt, for amicus curiae U.S. Department of Labor.
_______________
PER CURIAM:
On April 19, 2004, Plaintiffs-Appellants, sergeants in the New York City Police
Department (“NYPD”), brought this lawsuit alleging denial of overtime pay under the Fair Labor
Standards Act of 1938 (“FLSA” or “Act”), 29 U.S.C. § 201 et seq., for the period covering April
19, 2001 to the present. They now appeal from a July 20, 2009 judgment of the United States
District Court for the Southern District of New York (Scheindlin, J.) in favor of defendant-
appellee City of New York (“the City”) and seek review of, inter alia, the district court’s
November 6, 2007 Opinion and Order denying their motion for summary judgment and sua
sponte granting partial summary judgment in favor of the City. The Department of Labor
(“DOL”), appearing as amicus curiae at this Court’s invitation, has provided its interpretation of
the Act’s overtime pay regulations pertinent to this case. When an agency’s regulations are
ambiguous, a court must defer to the agency’s interpretation of its own regulations, unless that
interpretation is “plainly erroneous or inconsistent with the regulation[s] or there is any other
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reason to suspect that the interpretation does not reflect the agency’s fair and considered
judgment on the matter in question.” See Talk Am., Inc. v. Michigan Bell Tel. Co. dba AT&T
Michigan, 131 S. Ct. 2254, 2261 (2011) (internal quotation marks omitted). This appeal
primarily requires us to determine whether the DOL’s interpretation of its regulations is “plainly
erroneous or inconsistent with the regulation[s].” Id. In our limited role, we conclude that the
DOL’s interpretation is not “plainly erroneous or inconsistent” with the pertinent FLSA
regulations and thus is entitled to controlling deference. Applying that interpretation to the facts
of this case, we conclude that the primary duty of sergeants is not “management” and therefore
plaintiffs do not qualify for the “bona fide executive” exemption from the FLSA’s overtime pay
requirements. Accordingly, we reverse the district court’s judgment and remand the case to the
district court with instructions to enter judgment in favor of plaintiffs and for further proceedings
not inconsistent with this opinion.
BACKGROUND
I. The FLSA’s Overtime Pay Requirement
Subject to certain exceptions, the FLSA mandates overtime pay for employees who work
more than 40 hours per week. Specifically, section 7(a)(1) of the Act provides that
no employer shall employ any of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of goods for commerce, for a
workweek longer than forty hours unless such employee receives compensation for
his employment in excess of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is employed.
See 29 U.S.C. § 207(a)(1). Relevant here is the Act’s exemption in section 13(a)(1) from the
overtime requirement for workers who are “employed in a bona fide executive . . . capacity.” 29
U.S.C. § 213(a)(1).
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Until August 23, 2004, this exemption relieved employers from the otherwise applicable
obligation to pay overtime wages if the employer could demonstrate, inter alia, that the relevant
employees (1) earned at least $250 per week, (2) had a “primary” duty of “management,” and (3)
had a primary duty that included customarily and regularly directing the work of two or more
employees. 29 C.F.R. § 541.1(f) (2003). This was known as the “short test” for determining
whether an employee was considered an exempt executive.1
“Primary duty” is defined by the regulations as “the principal, main, major or most
important duty that the employee performs.” 29 C.F.R. § 541.700(a). To determine whether
plaintiffs’ performance of these exempt activities constitutes their “primary duty,” a court must
consider “the character of an employee’s job as a whole.” Id.Factors to consider when determining the primary duty of an employee include, but
are not limited to, the relative importance of the exempt duties as compared with
other types of duties; the amount of time spent performing exempt work; the
employee’s relative freedom from direct supervision; and the relationship between
the employee’s salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee.
Id.The relevant regulations define “management” as including, but not limited to,
activities such as interviewing, selecting, and training of employees; setting and adjusting
their rates of pay and hours of work; directing the work of employees; maintaining
production or sales records for use in supervision or control; appraising employees’
productivity and efficiency for the purpose of recommending promotions or other
changes in status; handling employee complaints and grievances; disciplining employees;
planning the work; determining the techniques to be used; apportioning the work among
the employees; . . . providing for the safety and security of the employees or the property;
1
The “short” and “long” forms of the primary duties test were eliminated by the
Department of Labor’s (“DOL”) 2004 revisions. The “long test” applied when an employee
earned less than $250 per week. See 29 C.F.R. §541.1(a)-(e) (2003).
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planning and controlling the budget; and monitoring or implementing legal compliance
measures.
29 C.F.R. § 541.102.
On April 23, 2004, the United States Secretary of Labor (“Secretary”) issued revisions to
the Part 541 regulations, which took effect on August 23, 2004. Under the revised version of the
regulations, an exempt “executive” is an employee
(1) Compensated on a salary basis at a rate of not less than $455 per week . . . ; (2)
Whose primary duty is management of the enterprise in which the employee is employed
or of a customarily recognized department or subdivision thereof ; (3) Who customarily
and regularly directs the work of two or more other employees; and (4) Who has the
authority to hire or fire other employees or whose suggestions and recommendations as to
the hiring, firing, advancement, promotion or any other change of status of other
employees are given particular weight.
29 C.F.R. § 541.100(a).
In addition to revising the executive exemption in 2004, the DOL promulgated additional
provisions defining the scope of the FLSA exemptions. One of these provisions was the so-
called “first responder” regulation. The regulation provides, in relevant part, that the executive
exemption does not apply to
police officers, detectives, deputy sheriffs, state troopers, highway patrol officers,
investigators, inspectors, correctional officers, parole or probation officers, park
rangers, fire fighters, paramedics, emergency medical technicians, ambulance
personnel, rescue workers, hazardous materials workers and similar employees,
regardless of rank or pay level, who perform work such as preventing, controlling or
extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or
detecting crimes; conducting investigations or inspections for violations of law;
performing surveillance; pursuing, restraining and apprehending suspects; detaining
or supervising suspected and convicted criminals, including those on probation or
parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing
investigative reports; or other similar work.
29 C.F.R. § 541.3(b)(1).
The first responder regulation further provides that
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[s]uch employees do not qualify as exempt executive employees because their
primary duty is not management of the enterprise in which the employee is employed
or a customarily recognized department or subdivision thereof as required under §
541.100. Thus, for example, a police officer or fire fighter whose primary duty is to
investigate crimes or fight fires is not exempt under section 13(a)(1) of the Act
merely because the police officer or fire fighter also directs the work of other
employees in the conduct of an investigation or fighting a fire.
Id. § 541.3(b)(2).
II. Plaintiffs’ Duties
Plaintiffs are more than 4,000 sergeants in the NYPD who brought this action on April
19, 2004, asserting their entitlement to overtime pay requirements pursuant to the FLSA for the
time period of April 19, 2001 to the present. The parties do not dispute the basic facts
concerning NYPD sergeants’ duties. Given the large number of plaintiffs, the parties, at the
direction of the district court, identified a short list of deponents (also referred to as “test
plaintiffs”) representing sixteen job categories, which were in turn organized into three groups.
The first group of test plaintiffs included the following six categories of sergeants:
• Housing Patrol Unit sergeants, who patrol public housing facilities and
accompany police officers in conducting patrols of public housing buildings for
criminal activity. App. II 377 ¶ 9.
• Bike Unit sergeants, who patrol housing developments on bike or foot for
suspicious activity. Id. ¶ 10.
• Anti-Crime Unit sergeants, who patrol areas prone to violent crime, working
alongside police officers in the field. Id. at 378 ¶ 11.
• Street Narcotics Enforcement Unit sergeants, who focus on narcotics sales in and
around public housing developments. Id. ¶ 12.
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• Mounted Unit sergeants, who patrol the City’s streets and parks on horseback,
ensuring pedestrian safety and maintaining crowd control. Id. at 378-79 ¶ 13.
• Highway Patrol Unit sergeants, who patrol city highways and respond to vehicle
and pedestrian accidents. Id. at 379 ¶ 14.
These categories of sergeants perform general law enforcement activities as well as
specialized law enforcement activities undertaken only by sergeants as opposed to lower-ranked
police officers; sergeants are the second-lowest ranked officers in the NYPD. For example,
sergeants are responsible for responding to incidents involving felonies, firearm discharges, and
emotionally disturbed individuals. See Mullins v. City of N.Y., 523 F. Supp. 2d 339, 342
(S.D.N.Y. 2007). Further, as the district court noted:
While their specific duties vary according to unit, sergeants are generally involved in
activities that include pursuing, restraining, and apprehending suspects. Sergeants
interview witnesses, suspects, victims, and vehicle operators. They are dispatched to
all arrests in their unit and must respond when directly dispatched. Sergeants are
responsible for verifying whether probable cause to arrest a suspect exists. They also
verify the target location for search warrants and determine whether a warrant is
appropriate based on their judgment and evaluation as to the existence of probable
cause. Sergeants secure and determine the size and scope of a crime scene prior to
the arrival of the Crime Scene Unit. Sergeants also make the determination as to
whether a show-up or line-up identification procedure may be conducted under the
circumstances.
Id. at 342 (footnotes omitted).
Additionally, sergeants take charge of operations at crime scenes if they are the highest
ranking officers present. Id. at 344. Only sergeants can use certain equipment, such as tasers,
water cannons, and restraining tape. Id. at 342. Sergeants also complete “unusual occurrence
reports,” which “provide the written details of a significant or unusual occurrence”; write reports
regarding any car chase; and review evidence vouchers and verify complaint reports, stop-and-
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frisk reports, and arrest reports. Id. at 343. Sergeants’ additional responsibilities include
instructing police officers on proper procedures, directing them to surveil certain areas, and
monitoring their use of proper equipment and accurate recording of daily activities. Id.III. Procedural History
After discovery was completed for the initial test group, plaintiffs moved for partial
summary judgment. The district court’s opinion denying the motion began its analysis by
acknowledging that the DOL had promulgated a new regulation, effective August 23, 2004, that
entitles “first responders” to “overtime pay even if they direct the work of other police officers
because their primary duty is not management . . . .” 523 F. Supp. 2d at 354 (quoting 69 Fed.
Reg. 22122-01, 22129 (Apr. 23, 2004)). The district court concluded, however, that the DOL
had “no intention” in promulgating this regulation “of departing from [] established case law,”
id. (omission in original), and therefore proceeded to apply the general primary duties test to the
test sergeants to determine whether their primary duty was management.
The district court applied the “short” test under the pre-August 23, 2004 regulations to
the test plaintiffs for the time period of April 19, 2001 up to August 23, 2004, and rejected the
City’s belated contention that the district court’s summary judgment ruling, based on the
testimony of the randomly selected test plaintiffs, should not apply to all plaintiffs. 523 F. Supp.
2d at 355. The district court concluded that for the period covered by the “short test,” the test
sergeants’ primary duty was management, agreeing with the City that the sergeants were “‘front-
line NYPD supervisors’ who ‘direct’ and ‘apportion’ the work of police officers in the field.” Id.
at 356 (footnote omitted) (quoting the City’s briefs). The district court concluded that
“plaintiffs’ principal value to [the City] is their service as ‘immediate supervisors in the chain of
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command’ to whom subordinates look for ‘guidance and direction,’ particularly when in the
field.” Id. at 358-59. Based on that determination, the district court sua sponte granted partial
summary judgment to the City for the claims covering this period. Id. at 356, 359.
For plaintiffs’ claims covering the period of August 23, 2004 to the present, the district
court further considered whether, under the test set forth in the new regulations, plaintiffs have
“the authority to hire or fire other employees or whose suggestions and recommendations as to
the hiring, firing, advancement, promotion or any other change of status of other employees are
given particular weight.” 29 C.F.R. § 541.100(a)(4). Plaintiffs asserted, and defendants did not
dispute, that they do not have authority to hire or fire employees. The City nevertheless argued
that plaintiffs made suggestions and recommendations that were given particular weight in that
they engage in disciplinary actions and that they prepared performance evaluations that play a
critical role in the advancement of police officers. The district court concluded that genuine
issues of material fact in this respect precluded the grant of partial summary judgment as to this
period. 523 F. Supp. 2d at 360.
After this Court denied the district court’s certification for leave to appeal, a five-day jury
trial was held for the first group of sergeants, in order to decide the disputed fact issue described
above. The jury returned a verdict for the City. Plaintiffs, who had moved for judgment as a
matter of law under Rule 50(a) of the Federal Rules of Civil Procedure following the close of
evidence, renewed their motion after the verdict pursuant to Rule 50(b) and also moved for a
new trial under Rule 59. The district court denied these motions in an opinion and order dated
October 17, 2008. Mullins v. City of N.Y., 2008 WL 4620709 (S.D.N.Y. Oct. 17, 2008). In that
opinion, the court concluded that one of the categories of evidence relied on by the City could
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not support a reasonable verdict in the City’s favor, but nonetheless determined that the balance
of the evidence amply supported such a verdict. Id. at *3-4. Plaintiffs moved for reconsideration
of the court’s denial of their Rule 50(b) motion, and the district court granted the motion for
reconsideration and revisited its decision, but ultimately adhered to its October 17, 2008 opinion
and order. Mullins v. City of N.Y., 2008 WL 5329313 (S.D.N.Y. Dec. 18, 2008). The parties
then stipulated that the summary judgment ruling and jury verdict would bind all plaintiffs, not
only the first group of sergeants. The stipulation was approved and entered in a final judgment
under Rule 54(b). The district court retained jurisdiction over plaintiffs’ retaliation claims.
Plaintiffs timely appealed from this judgment. After hearing oral argument, this Court
requested that the Secretary submit her views as to whether plaintiffs satisfy the executive
exemption from the FLSA’s overtime pay requirements. Upon receipt of the Secretary’s amicus
letter brief, the parties were invited to submit responses, which they have since filed.
In her amicus brief, the Secretary asserts that the district court failed to take into proper
consideration the new first responder regulation when applying the primary duties test to
plaintiffs and, therefore, erred in concluding that plaintiffs’ primary duty is “management.”
Amicus Curiae Letter Brief of the U.S. Dep’t of Labor (“DOL Amicus Br.”) at 1. The Secretary
explains that section 541.3(b) addresses the second element of the executive exemption as
applied to police officers and other first responders. See id. at 2. The regulation applies to any
officer who, “regardless of rank or pay level,” performs the types of duties enumerated in section
541.3(b)(1), and therefore, must inform any analysis when “the employees at issue are police
officers who perform law enforcement work in the field.” Id. at 3.
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Although the supervision undertaken by first responders while conducting field law
enforcement is considered “non-exempt” for the purposes of the applicable executive exemption
under the FLSA, the Secretary notes that the new first responder regulation does not “purport to
make all police officers non-exempt; the determining factor remains their primary duty.” Id. at 5
(citing 29 C.F.R. § 541.700(a)). The Secretary thus interprets the first responder regulation to
mean that when first responders direct the work of subordinate officers while performing the
types of law enforcement duties enumerated in section 541.3(b)(1), such supervision does not
constitute management that, in applying the primary duties test, would satisfy the second prong
of executive exemption.
The Secretary derives additional support for her interpretation from the regulatory
preamble to the 2004 revisions to the Part 541 overtime regulations, which indicated that the
revisions were designed to directly address the exempt status of police officers and other first
responders. See 69 Fed. Reg. at 22129; DOL Amicus Br. at 4. In the preamble, “Defining and
Delimiting the Exemptions for Executive . . . Employees” (“preamble”), the DOL stated that
This new subsection 541.3(b) responds to commentators . . . expressing concerns
about the impact of the proposed regulations on police officers, fire fighters,
paramedics, emergency medical technicians (EMTs) and other first responders. The
current regulations do not explicitly address the exempt status of police officers, fire
fighters, paramedics or EMTs. This silence in the current regulations has resulted in
significant federal court litigation to determine whether such employees meet the
requirements for exemption as executive, administrative or professional employees.
Most of the courts facing this issue have held that police officers, fire fighters,
paramedics and EMTs and similar employees are not exempt because they usually
cannot meet the requirements for exemption as executive or administrative
employees. . . .
The Department has no intention of departing from this established case law. Rather,
for the first time, the Department intends to make clear in these revisions to the Part
541 regulations that such police officers, fire fighters, paramedics, EMTs and other
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first responders are entitled to overtime pay. Police sergeants, for example, are
entitled to overtime pay even if they direct the work of other police officers because
their primary duty is not management or directly related to management or general
business operations . . . .
69 Fed. Reg. at 22129 (emphasis supplied).
The Secretary reiterates that “[t]he preamble discusses eight court decisions that
concluded that the first responder employees at issue were non-exempt. Immediately following
the discussion of those eight court decisions, the preamble states: ‘The Department has no
intention of departing from this established case law.’” DOL Amicus Br. at 8 (citation omitted).
“By referring to ‘this established case law,’ the DOL unmistakably approved of these specific
court decisions that had found police officers and other first responders, based on their duties, to
be non-exempt. Thus, police officers’ field law enforcement work is not exempt management
work.” Id. at 4 (citation omitted).
Plaintiffs endorse the Secretary’s interpretation of the first responder regulation. They
argue that because the Secretary promulgated the first responder regulation pursuant to her
delegated authority, her interpretation of that regulation is entitled to controlling deference in
that it is not plainly erroneous or inconsistent with the first responder regulation or any other
pertinent FLSA regulation. Brief for Plaintiffs-Appellants in Response to Amicus Curiae The
United States Department of Labor (“Pls. Supp. Br.”) at 6-7. Plaintiffs therefore agree with the
Secretary’s conclusion that police sergeants are not exempt because their primary duty is not
management or supervision, but rather “front line law enforcement.” Brief for Plaintiffs-
Appellants at 35. Plaintiffs further argue that the Secretary’s interpretation, which only
addressed the period of August 23, 2004 to the present, supports their position that they are also
entitled to overtime pay for the period beginning on April 19, 2001. Pls. Supp. Br. at 7-12.
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The City argues in opposition that the first responder regulation simply reiterates the
applicability of the general primary duties test to first responders but does not change the content
of that test. Supplemental Brief of the City of New York (“Def. Supp. Br.”) at 2-3. The City
acknowledges that the activities enumerated in section 541.3(b)(1) are not management
activities; management activities are set forth in section 541.102. Id. at 3. The City interprets
541.3(b)(2) simply to confirm that, for the purposes of the executive exemption, officers whose
primary duty is to perform the tasks enumerated in section 541.3(b)(1) do not lose their exempt
status merely because they end up undertaking limited supervisory activity while performing
those tasks. Id. Thus, according to the City, the first responder regulation does not classify as
non-exempt supervisory activities that are performed “in the field” or “in conjunction with” law
enforcement. Id. at 4. If the first responder regulation were designed to exempt “management”
activities when done “in the field” or “in conjunction with” field law enforcement, the
regulation, argues the City, would have included language referring to “any management
activities listed in section 541.102 which are performed in conjunction with these activities.” Id.
at 5. The City notes that the preamble, on which the Secretary relies, includes as managerial
tasks “directing operations at crime, fire or accident scenes, including deciding whether
additional personnel or equipment is needed.” Id. The City thus charges the Secretary with
creating an overly “expansive and improper reading” of the first responder regulation, and, in so
doing, in effect eliminating the primary duty test for first responders. Id. at 5, 7. As a result,
according to the City, the Secretary improperly extends the example given in section 541.3(b)(2)
to remove all direction in the field as a management activity. Id. at 6. First responders’
management activities are thus rendered “non-exempt” even when first responders perform
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management activities that would be exempt management under the standard primary duties test.
Id. at 7.
Based on its view that the Secretary’s interpretation is erroneous and inconsistent with
other FLSA provisions, the City argues that deference to the Secretary’s position is not
appropriate. Id. at 4, 8. The City also contends that the Secretary has exceeded her statutory
authority by going beyond Congress’s delegation of authority to the Secretary to define and
delimit the terms “bona fide executive, administrative or professional” for purposes of the
exemption. See 29 U.S.C. § 213(a)(1); Def. Supp. Br. at 8. The City claims that by interpreting
the first responder in this manner, the Secretary has “announce[d] an industry specific exception”
applicable only to “first-responders” despite the fact that the FLSA “is not an industry specific
statute.” Def. Supp. Br. at 9 (quoting Christopher v. SmithKline Beecham Corp., 635 F.3d 383,
398 (9th Cir. 2011)). As a result, according to the City, the Secretary has exceeded her statutory
authority by drafting a new rule, one that exempts an entire category of workers, and bypassing
the normal notice-and-comment procedures. Id. at 11. Finally, the City emphasizes that no
deference should be afforded to the Secretary’s opinion as to whether sergeants’ primary duty is
management since the role of applying the law to the facts of a particular case remains the
province of the judiciary, not that of the agency, unless Congress has expressly delegated that
authority. Id. at 12. Accordingly, although the City does not dispute that sergeants engage in
general law enforcement duties, it contends that while sergeants are in the field, they supervise
lower-ranked patrol officers as their primary duty and therefore the district court’s decision
should be affirmed. Id. at 13, 15.
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DISCUSSION
Our threshold and principal task on appeal is to determine the level of deference this
Court owes to the Secretary’s interpretation of the pertinent FLSA regulations. The Secretary
limited her interpretation of the Part 541 regulations to plaintiffs’ claims for the time period of
August 23, 2004 to the present. See DOL Amicus Br. at 2 n.2. Those claims are governed by the
current version of the Part 541 regulations, and only the second and fourth prongs of the
executive exemption — whether plaintiffs’ primary duty is management and whether their
recommendations regarding other employees’ change of status are given particular weight — are
in issue here. See Mullins, 523 F. Supp. 2d at 355-60. We therefore turn first to the Secretary’s
interpretation of her regulations, as applied to plaintiffs’ claims for the period of August 23,
2004 to the present. We then address plaintiffs’ claims for the period of April 19, 2001 up to
August 23, 2004, which is governed by the previous version of the bona fide executive
exemption.
“We review de novo a district court’s grant or denial of summary judgment, viewing the
record in the light most favorable to the party against whom summary judgment is sought.” In re
Novartis Wage and Hour Litig., 611 F.3d 141, 150 (2d Cir. 2010) (internal quotation marks and
citation omitted). The district court’s conclusion that plaintiffs’ primary duty is “management”
is a question of law subject to de novo review. See id. “Because the FLSA is a remedial law,
exemptions to the overtime pay requirement are narrowly construed against the employers
seeking to assert them and their application limited to those establishments plainly and
unmistakably within their terms and spirit.” Id.; see also Reiseck v. Universal Commc’ns of
Miami, Inc., 591 F.3d 101, 104 (2d Cir. 2010). The employer who invokes the exemption bears
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the burden of establishing that the employee falls within the exemption. See Reiseck, 591 F.3d at
104.
I. Deference to the Secretary of Labor’s Interpretation
Deference to an agency’s interpretation is owed only when the regulation at issue is
ambiguous. See, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000). The meaning of
the first responder regulation, when juxtaposed with the text of the bona fide executive
exemption and, in particular, with the definition of “management” under 29 C.F.R. § 541.102, is
at best ambiguous. The City’s own argument against the Secretary’s interpretation highlights the
ambiguity. The City notes that among the list of managerial tasks that are mentioned in the
preamble to the 2004 revisions are “directing operations at crime, fire or accident scenes,
including deciding whether additional personnel or equipment is needed.” Def. Supp. Br. at 5
(quoting 69 Fed. Reg. at 22130). At the same time, the first responder regulation qualifies those
types of activities and deems them not to be “management.” See 29 C.F.R. § 541.3(b)(1).
Moreover, plaintiffs in this case engage in types of activities that correspond with management
as defined in 29 C.F.R. § 541.102 — such as “directing subordinates to canvas a certain area,
positioning officers in the field for law enforcement operations, and guiding subordinates on
proper police procedures,” Mullins, 523 F. Supp. 2d at 358 (footnote omitted) — and thus it is
not entirely clear, for the purposes of the executive exemption, whether such activities should be
considered exempt “management” tasks pursuant to section 541.102 or as “non-exempt”
pursuant to section 541.3(b).
Since the regulation is ambiguous, we turn to the Secretary’s interpretation of it in her
amicus brief. The Secretary’s interpretation is entitled to controlling deference, even if
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articulated in an amicus brief, unless it is “‘plainly erroneous or inconsistent with the
regulation[s]’ or there is any other ‘reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.’” See Talk Am., Inc., 131 S.
Ct. at 2261 (quoting Chase Bank USA, N.A. v. McCoy, 562 U.S. ___, ___, 131 S. Ct. 817, 880
(2011)); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (noting that where
the DOL’s “interpretation of its own regulation reflects its considered views . . . [,] we have
accepted that interpretation as the agency’s own, even if the agency set those views forth in a
legal brief”); Auer v. Robbins, 519 U.S. 452, 461 (1997) (affording deference to the Secretary’s
own interpretation of DOL regulation advanced in amicus brief).
In Auer, the Supreme Court deferred to the then-Secretary of Labor’s interpretation of his
own regulation, and held that the fact the interpretation was contained in an amicus brief did not
“in the circumstances of this case, make it unworthy of deference.” 519 U.S. at 462. The
Supreme Court justified deference in that case by noting that “[t]he Secretary’s position is in no
sense a ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action
against attack.” Id. The Court further added that “[t]here is simply no reason to suspect that the
interpretation does not reflect the agency’s fair and considered judgment on the matter in
question.” Id.A court’s role in this circumstance is circumscribed. It is without authority to substitute
its own independent interpretation of an agency’s regulations for that of the agency. Applying
these principles to this case and for the reasons set forth below, we find that the Secretary’s
interpretation is not plainly erroneous or inconsistent with her regulations and there is nothing to
suggest that her interpretation reflects anything but the Secretary’s “fair and considered
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judgment on the matter in question.” Her interpretation, therefore, warrants “controlling” Auer
deference by this Court. See, e.g., Talk Am., Inc., 131 S. Ct. at 2261.
Contrary to the City’s position, the Secretary’s interpretation does not exceed her
statutory authority. Title 29, Section 213(a)(1) of the United States Code delegates authority to
the Secretary to “define[] and delimit[]” the scope of the exemptions from the FLSA’s overtime
requirements, and the new Part 541 regulations were promulgated pursuant to the Secretary’s
delegated authority. See 69 Fed. Reg. at 22123-24. The Secretary’s interpretation does not
articulate an “industry specific” exception by separating out first responders for particular
treatment, and even if it did, industry-specific exceptions are not precluded by the text of the
statute. Based on Congress’ express grant of authority, the Secretary established the scope of
“management” by delimiting that term and excluding certain types of activities that are typically
performed by police officers, firefighters, investigators “and similar employees.” 29 C.F.R. §
541.3(b). The regulation thus focuses on particular types of activities, which are performed
generally by front-line responders, rather than on a particular industry. Even to the extent that
the Secretary’s regulation could be interpreted to treat first responders differently than workers
in other industries, the Secretary’s interpretation does not, as the City maintains, depend
fundamentally on the location of those activities. That such activities occur “in the field” is not
the dispositive element; the Secretary’s reasoned justification is that such activities, when
performed by first responders in the course of their front-line duties, do not involve the
“management of the enterprise in which the employee is employed,” id. § 541.3(b)(2), and
therefore should not be deemed “management.”
The City argues that neither the plain language of the regulation nor the preamble
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supports the Secretary’s interpretation of the first responder regulation as categorizing as “non-
exempt” management activities undertaken in the field. The Secretary’s interpretation does not,
however, classify all activities if they are performed in the field as “non-exempt” regardless of
whether they resemble “management.” Rather, the Secretary interprets the first responder
regulation to mean that “police officers’ field law enforcement work is not exempt management
work.” DOL Amicus Br. at 4. The Secretary further explains that “field law enforcement work
does not become management simply because the police officer ‘directs the work of other
employees’ while performing such work.” Id. at 5. The City claims that the Secretary interprets
section 541.3(b)(2)’s example too broadly by construing “directs” to mean “all management
activities” and “conduct an investigation” to mean “in the field” or “in conjunction with law
enforcement work.” Def. Supp. Br. at 5. However, as the Secretary’s controlling interpretation
explains, the example provided in section 541.3(b)(2) simply illustrates the first responder
regulation’s essential principle: the performance of non-exempt field law enforcement work that
involves supervision of other officers does not transform that non-exempt work into exempt
management. DOL Amicus Br. at 5.
The City’s argument that the Secretary’s interpretation of the first responder regulation is
inconsistent with the other applicable Part 541 regulations because it eliminates the primary
duties test with respect to all first responders rests on the erroneous assumption that if one officer
supervises another officer in the course of performing law enforcement work, that officer may
never qualify as an exempt executive. Def. Supp. Br. at 7. In the preamble, however, the DOL
indicated that
Federal courts have found high-level police and fire officials to be exempt executive
or administrative employees only if, in addition to satisfying the other pertinent
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requirements, . . . their primary duty is performing managerial tasks such as . . .
directing operations at crime, fire or accident scenes, including deciding whether
additional personnel or equipment is needed.
69 Fed. Reg. at 22130. The Secretary further explains that “[t]he cases identified in the
preamble” finding that high-level police officers were exempt executive employees “involved
the high-level direction of operations by fire chiefs and fire captains who generally did not
engage in any front-line firefighting.” DOL Amicus Br. at 5. Hence, the Secretary in her amicus
curiae brief to the district court stated that “[t]he types of managerial duties performed by some
high-ranking police officers . . . reinforce the Secretary’s position that front-line law
enforcement, such as patrolling, firing taser guns, serving warrants, participating in and making
arrests, investigating crimes, interviewing and interrogating witnesses, and securing crime scenes
are front-line law enforcement activities that are not management tasks under section 541.3(b).”
Id. at 6 (quoting District Court Amicus Br. at 11) (emphasis omitted) (ellipsis in original); see
also 29 C.F.R. § 553.216 (“[H]igh ranking police officials who are in engaged in law
enforcement activities, may also, depending on the facts, qualify for the section 13(a)(1)
exemption as “executive” employees.”).
The Secretary does not, as a result, eliminate the primary duties test in her interpretation
of the first responder regulation. While “directing operations at crime, fire or accident scenes”
appears, at first blush, to be a type of management that sergeants undertake, when their
supervisory activities are viewed within the context of the first responder regulation as
interpreted by the Secretary, it becomes apparent that, because these activities form part of
sergeants’ primary field law enforcement duties, such supervision is not to be deemed
“management.” See DOL Amicus Br. at 5. Even to the extent that the City identifies a tension
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between the text of the first responder regulation and the primary duties test, this is, at best, an
ambiguity that does not preclude deference to the Secretary’s interpretation. Addressing that
ambiguity, the Secretary argues that certain managerial tasks such as “directing operations at
crime, fire or accident scenes” when performed by high-level personnel who typically did not
engage in any front-line activities would still be considered “management.” See DOL Amicus
Br. at 5 (discussing preamble and cases). The Secretary’s interpretation is consistent with both
the text of the first responder regulation and the bona fide executive exemption and therefore far
from clearly erroneous.
Nor is the Secretary’s interpretation a departure from earlier agency interpretations. The
City argues that the preamble’s discussion of Department of Labor v. City of Sapulpa,
Oklahoma, 30 F.3d 1285, 1288 (10th Cir. 1994), demonstrates that the Secretary has departed in
its interpretation in its amicus brief from the interpretation provided in the preamble. In that
case, the preamble noted, the Tenth Circuit affirmed the district court’s finding that department
captains were not exempt executives because, inter alia, they were not in charge of most fire
scenes and had no authority to call additional personnel to a fire scene. 69 Fed. Reg. at 22129.
For the City, then, this suggests that a lack of authority “in the field” contributed to the captains’
lack of exempt status. Def. Supp. Br. at 7. However, the Secretary’s interpretation here is
consistent with the Tenth Circuit’s decision. There, the district court found that higher-ranking
officers were more often than not the first to arrive at a fire scene and direct operations, and thus
that particular management function could not be attributed to the captains. This is consistent
with the Secretary’s interpretation that the primary duties test still applies and that certain
supervisory functions in the field, when not performed as part of an officer’s primary field law
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enforcement duties, can still qualify as “management.”
The Secretary’s conclusion is also consistent with this Court’s decision in Reich v. New
York, 3 F.3d 581 (2d Cir. 1993), overruled by implication on other grounds by Seminole Tribe v.
Florida, 517 U.S. 44 (1996), which the DOL cited approvingly in the preamble. See 69 Fed.
Reg. at 22129. In Reich, this Court affirmed the lower court’s ruling that investigators who
conducted criminal investigations and supervised state troopers’ investigations were not engaged
in exempt administrative activity. 3 F.3d at 587-88. As the preamble acknowledged, this Court
held that their primary duty was investigation, “not administering the affairs of the department
itself.” 69 Fed. Reg. at 22129. Although the administrative exemption is not at issue in this
case, the first responder regulation addressed the scope of the section 13(a)(1) exemptions
generally, and thus Reich provides additional support for the claim that the Secretary has not
departed in her current interpretation of the first responder regulation from previous agency
interpretations.
Accordingly, we conclude that the Secretary’s interpretation of the first responder
regulation, in relationship to the bona fide executive exemption, is neither plainly erroneous nor
inconsistent with her own regulations or previous interpretations thereof, and thus is entitled to
controlling deference by this Court.
II. Applying the Secretary’s Interpretation to Plaintiffs’ Claims for August 23, 2004 to the
Present
The Secretary’s controlling interpretation of the first responder regulation dictates the
conclusion that plaintiffs’ primary duty is not management. The undisputed record on summary
judgment demonstrates that plaintiffs in this case clearly perform the type of work enumerated in
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the first responder regulation. The district court concluded that sergeants regularly conduct
investigations and inspections for violations of law by “verifying whether probable cause to
arrest a suspect exists, determining whether a show-up identification procedure is justified, [and]
making tactical decisions such as when to retreat from a crime scene.” Mullins, 523 F. Supp. 2d
at 358 (footnotes omitted). Duties that are specific to sergeants and not handled by subordinate
police officers similarly relate to their law enforcement tasks: “Sergeants are dispatched and
required to respond when situations involving emotionally disturbed individuals arise, as police
officers are not permitted to take such people into custody. In handling suspects, sergeants are
authorized to use certain restraining devices that are not available to police officers [including]
tasers, water cannons, and restraining tape.” Id. (footnote omitted). Since plaintiffs “perform
law enforcement duties alongside patrol officers in the field,” id. at 357 (footnote omitted), and
“generally spend much of their time in the field with their subordinates,” id. at 358 (footnote
omitted), the first responder regulation, 29 C.F.R. § 541.3(b), applies to the analysis of whether
they may be deemed “exempt” executives under the FLSA. See DOL Amicus Br. at 3-4.
In the Secretary’s view, the district court misinterpreted the first responder regulation and
its proper application to this case. We agree. The district court began its analysis by
acknowledging that the DOL had promulgated the first responder regulation but observed that
“the new regulations do not depart from [] ‘established case law’ . . . in which application of the
duties test determines whether a given employee is exempt.” 523 F. Supp. 2d at 354 (brackets in
original) (internal quotation marks omitted). The district court thus determined that the new
regulation simply reiterated that courts apply the primary duties test to determine whether an
exemption from the overtime pay requirements is satisfied. Applying the general primary duties
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test to the test plaintiffs without further acknowledgment of the first responder regulation, the
district court noted that “[i]t is undisputed that plaintiffs perform law enforcement duties
alongside patrol officers in the field,” but ultimately held that “plaintiffs are front-line
supervisors of subordinate police officers and their primary duty is management.” Id. at 357.2
However, the district court’s omission of the word “this” from its citation to the preamble’s
reference to the “established case law” “alter[ed] [the] intended meaning” of the preamble. DOL
Amicus Br. at 4. As a result, the district court did not treat as “non-exempt” supervisory
activities undertaken by plaintiffs in the course of performing their regular law enforcement
duties. “[T]he fact that the sergeants direct police officers while they perform field law
enforcement activities does not transform the field law enforcement into management.” DOL
Amicus Br. at 10.
Because the district court misconstrued the regulation’s meaning, the district court
erroneously concluded that plaintiffs’ supervision of subordinate police officers while
conducting law enforcement work is “management.” See DOL Amicus Br. at 7-8. Although the
City argues that the district court correctly classified as “exempt” various supervisory activities
undertaken by sergeants such as “‘apportioning work among [officers],’ ‘determining the
techniques’ and personnel to be used, ‘reassigning and reallocating officers’ and other activities
described in 29 CFR 541.102,” Def. Supp. Br. at 13 n.13 (alteration in original), these activities
are performed as part of plaintiffs’ field law enforcement duties. Indeed, the Secretary reiterates
that “giving direction and exercising discretion while performing field law enforcement work do
2
Plaintiffs assert that the district court improperly weighed the evidence before it, thus
usurping the jury’s role, but they raise this argument for the first time in their reply brief and
therefore we will not consider it. See Castro v. Holder, 597 F.3d 93, 95-96 n.2 (2d Cir. 2010).
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not transform [sergeants’] non-management primary duty in a management primary duty.” DOL
Amicus Br. at 11.
In light of the Secretary’s controlling interpretation of the first responder regulation, the
fact that plaintiffs spend the majority of their time performing non-exempt work in the field, see
Mullins, 523 F. Supp. 2d at 345-46, 357-58, leads to the conclusion that the sergeants’ primary
duty is not management but field law enforcement. See DOL Amicus Br. at 11. Although the
City argues that no deference should be given to the Secretary’s interpretation as applied to the
facts of this case, the City concedes that the Secretary’s interpretation compels this outcome:
“Since it is undisputed that sergeants spend the majority of their time in the field, the conclusion
would, under the Secretary’s new interpretation, be inevitable.” Def. Supp. Br. at 6 n.5. This
conclusion is buttressed by the fact that the district court’s factual recitation confirms that
sergeants perform few of the “management” tasks discussed in the preamble or listed in 29
C.F.R. § 541.102 outside the context of their field law enforcement duties. For example,
sergeants are required to complete performance evaluations of subordinate officers on a monthly
basis. See Mullins, 523 F. Supp. 2d. at 344; see also 69 Fed. Reg. at 22130 (listing “evaluating
personnel performance” as among types of activities viewed by courts as “management”).
Sergeants also have the authority to issue reports to commanding officers when a subordinate
police officer is “derelict in his duties.” See Mullins, 523 F. Supp. 2d at 344-45. Additionally,
sergeants are responsible for their subordinates’ “appearance, punctuality, attendance,
productivity, good order and discipline.” Id. at 344 (footnote omitted). Thus, under the
Secretary’s interpretation of the first responder regulation and the definition of “primary duty,”
we necessarily conclude that the principal benefit that sergeants confer to the NYPD is their
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performance of law enforcement duties in the field and concomitant supervision of lower-
ranking officers while performing such duties. Since that work is considered “non-exempt”
under the first responder regulation, the limited amount of exempt management duties
undertaken by sergeants is insufficient to render their primary duty “management.” See also
DOL Amicus Br. at 11-12.
The other reasons cited by the district court for concluding that sergeants’ primary duty is
“management” are not persuasive. The district court concluded that differences in salary
between plaintiffs and subordinate police officers suggested that their primary duty is not general
law enforcement, see Mullins, 523 F. Supp. 2d at 359; however, the Secretary explains that 29
C.F.R. § 541.3(b) indicates that “regardless of rank or pay level” activities that form part of
front-line law enforcement do not constitute “management.” See DOL Amicus Br. at 11. The
additional duties performed by sergeants alone are not “management,” and, therefore, any
difference in pay attributed to those duties cannot be used to satisfy the bona fide executive
exemption. The district court’s conclusion that plaintiffs are often the only supervisors in the
field and thus exercise discretion in the performance of their duties — which is not one of the
elements of the current version of the executive exemption, see 29 C.F.R. § 541.100(a)3 —
overlooks the fact that such discretion forms part of their performance of law enforcement work
in the field. See DOL Amicus Br. at 10. Plaintiffs do not, however, have discretion to determine
when they perform any non-exempt duties, see 29 C.F.R. § 541.106(a) (“Generally, exempt
3
The previous version, which the district court applied to the period of April 19, 2001 to
August 23, 2004, included discretion among the factors relevant to the primary duty inquiry. See
29 C.F.R. § 541.1 (2003) (whether employee “customarily and regularly exercises discretionary
powers”). However, discretion formed part of the “long test,” which applied only to employees
earning less than $250 per week, and thus discretion was not an explicit factor relevant to the
inquiry as applied to plaintiffs.
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executives make the decision regarding when to perform nonexempt duties . . . .”), since
sergeants generally receive their assignments from higher-ranking officers such as lieutenants.
See Mullins, 523 F. Supp. 2d at 344; see also DOL Amicus Br. at 12.
Because under the Secretary’s interpretation sergeants’ primary duty is law enforcement,
we need not reach the question of whether the evidence presented at trial was sufficient to
establish that the sergeants’ “suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given particular
weight.” 29 C.F.R. § 541.100(a)(4). Since plaintiffs’ primary duty is not management, the City
has not met its burden of showing that plaintiffs satisfy the statutory and regulatory requirements
for the executive exemption from the FLSA’s overtime pay requirements for the period of
August 23, 2004 to the present, and plaintiffs are therefore entitled to overtime pay for that time
period.
III. Plaintiffs’ Claims for April 19, 2001 to August 23, 2004
Although the Secretary interpreted this Court’s questions in the order inviting amicus
briefing to refer solely to the period postdating August 23, 2004, and therefore did not directly
address the period beginning April 19, 2001, see DOL Amicus Br. at 2 n.2, the Secretary’s views
nevertheless inform our analysis of the plaintiffs’ primary duty under the previous regulation.
We therefore also hold that, for this time period, the City has failed to carry its burden of
demonstrating that plaintiffs satisfy the bona fide executive exemption from the FLSA’s
overtime pay requirements.
The DOL indicated in the preamble that the new Part 541 regulations were intended to
clarify the existing regulations in effect. 69 Fed. Reg. at 22125. The preamble indicates that the
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revisions were “necessary to restore the overtime protections intended by the FLSA which have
eroded over the decades,” id. at 22122, and were designed to
clarify and better organize the regulations defining and delimiting the exemptions for
administrative, executive and professional employees. Rather than broadening the
exemptions, the final rule will enhance understanding of the boundaries and
demarcations of the exemptions Congress created. The final rule will protect more
employees from being misclassified . . . .
Id. at 22125. In this regard, we agree with plaintiffs that the DOL intended “simply to clarify
the manner in which the exemptions were always meant to be applied to such first responders.”
Pls. Supp. Br. at 8.
In the preamble, the DOL cited cases in which police officers and other first responders
had been held to be non-exempt and indicated that it “ha[d] no intention of departing from this
established case law.” 69 Fed. Reg. at 22129. The DOL’s agreement with the holdings of those
prior cases suggests that the interpretation advanced by the Secretary under the current
regulation applies with equal force to the previous version of the executive exemption.4
Plaintiffs point out that 29 C.F.R. § 541.3(b)’s clarification that a police officer “is not exempt
merely because [he] directs the work of other employees” is also consistent with prior case law
in which plaintiffs had “supervisory duties in addition to their primary duties of field law
enforcement.” Pls. Supp. Br. at 10. As the Secretary notes, “the sergeants’ direction of police
officers is done in conjunction with their performance of field law enforcement work. . . . [T]he
fact that the sergeants direct police officers while they perform field law enforcement activities
4
In its opinion on summary judgment, the district court also acknowledged that the new
regulations were consistent with the previous version. See Mullins, 523 F. Supp. 2d at 354. The
Secretary likewise notes that 29 C.F.R. § 541.3(b)’s focus on the employee’s duties is consistent
with the previous regulation. See DOL Amicus Br. at 9 n.6.
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does not transform the field law enforcement into management.” DOL Amicus Br. at 9-10. We
therefore see no reason to depart from the preceding analysis as applied to plaintiffs’
performance of their duties under the previous version of the regulation.
The City nevertheless argues that, under the new regulation, one of the factors listed as
pertinent to the primary duty analysis is “relative freedom from supervision, which is virtually
synonymous with discretion,” and “discretion” therefore remains a relevant factor. Def. Br. at
46 (citing 29 C.F.R. § 541.700(a)). Although the previous regulation explicitly included
discretion among the factors relevant to the primary duty inquiry, see 29 C.F.R. 541.1(d) (2003)
(whether employee “customarily and regularly exercises discretionary powers”), we indicated,
supra at [] & n.3, that this factor formed part of the “long test,” not the “short test” applicable to
plaintiffs, and furthermore, plaintiffs do not have discretion to determine when they perform
non-exempt duties; instead, the majority of plaintiffs’ discretion is exercised in the performance
of their field law enforcement duties. See Mullins, 523 F. Supp. 2d at 358 (noting that “plaintiffs
. . . exercise discretion and make significant decisions based on their judgment while in the
field”); 29 C.F.R. § 541.106(a). It is also relevant to note that, in reaching the conclusion that
sergeants’ direction of subordinate police officers was not “management,” the Secretary’s
analysis did not rely on plaintiffs’ “relative freedom from supervision.”
Assuming, arguendo, that we were to equate “discretion” with “relative freedom from
supervision,” our analysis would not be different. Given that the new regulations were designed
to be consistent with the previous ones, it follows that any “discretion” exercised by plaintiffs in
their supervision of police officers’ field law enforcement duties does not render such
supervision “management” for the purposes of the FLSA executive exemption. In light of the
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controlling deference we have given to the Secretary’s interpretation of the first responder
regulation, we do not interpret the previous regulations to indicate that any discretion inherent in
sergeants’ supervision of police officers while performing law enforcement duties transforms
that supervision into “management.” Plaintiffs are therefore entitled to the overtime pay
protections of the FLSA for their claims covering this time period.
CONCLUSION
For the reasons stated herein, the district court’s judgment is REVERSED, and the case
is REMANDED with instructions to enter judgment in favor of the plaintiffs and for additional
proceedings not inconsistent with this opinion.
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