A Brief Look At The “First Responder” Regulation Under The FLSA

LEEBy:  Lee Gresham

Our firm recently represented a class of more than 40 Fire Suppression Lieutenants in a case seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”), as it pertains to “first responders.” The following is a brief look at the complex area of employment law. In August of 2004, the Department of Labor updated and revised the regulations “defining and delimiting the exemptions for ‘white collar’ executive, administrative and professional employees” set out in 29 C.F.R § 541 (69 Fed.Reg 22122). The intent of the updated regulations was to “restore” the “severely eroded” overtime protections intended by the FLSA and to “ensure that employees could understand their rights, employers could understand their legal obligations and the DOL could vigorously enforce the law.”


First Responders are entitled to overtime

As part of the § 541 revisions, the DOL promulgated, for the first time, what is commonly referred to as the “First Responder” regulation, 29 C.F.R. § 541.3. The purpose behind this addition was to explicitly address the application of overtime exemptions to first responders and to “make clear” that they “are entitled to overtime pay.” To avoid the possibility of confusion, § 541.3(b) explains, in no uncertain terms, that the § 213(a) exemptions “do not apply to . . . firefighters . . . 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….” The revision specifically states that firefighters “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.” This section also states that first responders do not qualify as exempt administrative employees “because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer’s customers.”

Relevant Regulations

69 Fed.Reg 22129: first responders are entitled to overtime pay.

29 C.F.R. § 541.3(b)(1): § 213(a) exemptions do not apply to firefighters and similar employees, regardless of rank or pay level.

29 C.F.R. § 541.3(b)(3): firefighters do not qualify as exempt executive employees because their primary duty is not management or general business operations.

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Deference to § 541.3(b)

Deference must be afforded § 541.3(b) and the Department of Labor’s interpretation of it.

Relevant cases

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984): As explained by the United States Supreme Court, when “congress has explicitly left a gap [in the FLSA] for the [Department of Labor] to fill, there is an express delegation of authority to the [Department of Labor] to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”

Falken v. Glynn County, Georgia, 197 F.3d 1341 (11th Cir. 1999): “As with all agency rules, the DOL’s regulations implementing the FLSA are accorded Chevron deference.”

Gregory v. First Title of Am., Inc., 555 F.3d 1300, 1302 (11th Cir. 2009): In turn, “[r]egulations such as these, promulgated pursuant to an express delegation of legislative authority, are to be given controlling weight unless found to be arbitrary, capricious or contrary to the statute.”

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FLSA Regulations have authority

Regulations promulgated under the FLSA by the Department of Labor are to be given controlling authority.

Relevant cases

Anglin v. Maxim Healthcare Services, Inc. 2009 WL 2473685 (M.D. Fla. 2009)

Buckner v. Florida Habilitation Network, 489 F.3d 1151, 1154 (11th Cir. 2007): recognizing regulations promulgated by the DOL under the FLSA have controlling authority.

Falken v. Glynn County, Georgia, 197 F.3d 1341, 1346: declaring the DOL’s regulations implementing the FLSA are accorded Chevron deference, under which courts must defer so long as the regulation is based on a permissible construction of the statute.

Patel v. Quality Inn South, 846 F.2d 700, 703 (11th Cir. 1988) (emphasis added): “As the agency charged with implementing the [FLSA]…the Department [of Labor’s] interpretation [of the § 541 regulations, specifically § 541.3(b)(1)] is entitled to considerable deference,” even if they are articulated in an amicus brief.

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007): noting that the DOL’s interpretation of its regulations has been accepted even if those views are explained by the agency in a legal brief.

Auer v. Robbins, 519 U.S. 452, 461 (1997): deference afforded the Secretary of Labor’s interpretation of the DOL regulations advanced by way of an amicus curia brief.

This is a complex area of employment law that is fact intensive. For more information on the FLSA or on how the FLSA pertains to “first responders,” you can visit the Department of Labor website: www.DOL.gov/WHD/FLSA.

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