In Mullins et al. v. City of New York, 09-3435 (August 5, 2011), the Second Circuit held that the plaintiffs’ (4000+ NYPD sergeants) “primary duty” was not “management”, and thus they did not qualify for the “executive” exemption from the FLSA’s overtime pay requirements. See 29 U.S.C. 207(a)(1) (overtime requirement); 29 U.S.C. 213(a)(1) (executive exemption).
The court’s decision centered around the so-called “first responder regulation” – codified at 29 C.F.R. 541.3(b) (full text here) – which, inter alia, provides that the executive exemption does not apply to employees such as plaintiffs “because their primary duty is not management of the enterprise”.
The court initially concluded that the meaning of the first responder regulation (when “juxtaposed with the text of the … executive exemption and … with the definition of ‘management’ under” the regulations) was ambiguous, justifying its consideration of the Secretary of Labor’s interpretation of that regulation.
Such an interpretation is “entitled to controlling deference … unless it is plainly erroneous or inconsistent with the regulations 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.” Such “controlling deference” was warranted here.
The court agreed with the Secretary of Labor’s interpretation of the first responder regulation, namely, “that police officers’ field law enforcement work is not exempt management work” and that “field law enforcement work does not become management simply because the police officer directs the work of other employees while performing such work.”