Turnley v. Town of
Vernon, 2012 VT
69.
Today’s case is a basic employment law issue wrapped in a
coat of municipal law.
Plaintiff was hired to be chief of police in 2006 for the
Town, a small, sleepy hamlet in the southeast corner of the state on the New
Hampshire and Massachusetts borders, not known for anything
in particular.
Plaintiff was paid a salary and held the position for three
years. At the end of that time,
Plaintiff sued the Town for back pay.
Specifically, he claimed that he was due approximately 1335 hours of
overtime for the hours he regularly worked above and beyond the normal 40-hour
work week. Town denied the claim, and
Plaintiff filed his action.
The basis of Plaintiff’s claim is the federal Fair Labor Standards
Act and its state equivalent at 21 V.S.A. § 384. Under the FLSA, anyone who performs a
primarily physical job must be paid on an hourly basis and time-and-a-half wages
for any work hours over the 40-hour work week.
The FLSA is the main reason that we do not have “salaried”
ditch diggers, laborers who earn a weekly stipend, or factory employees paid by
the number of bobbins they can thread through the mill before they lose a hand. The idea is that if your work is primarily
physical, you should be paid on an hourly basis and should not be expected to
work beyond the normal work week unless you receive additional reward in the
form of additional pay. Such workers are
known in employment parlance as nonexempt
because they are not exempt from the FLSA.
The big exceptions to FLSA are office workers—the drones who
file paper and while away the hours between morning coffee and afternoon water-cooler
chats by surfing the internet.
Actually, the definition encompasses any worker whose job is
primarily non-physical and/or whose job is to supervise two or more
employees. Such employees, so long as
they are paid in a regular salary above $455 per week, are known as exempt because they are exempt from the
provisions of the FLSA and may be used and abused by the employer as the market
will bear. Hence, we have the salaryman who works twice as
many hours for a fixed salary that when broken down is probably not much more
than the hourly rate of the floor employee.
But what of the employee who has a foot in both worlds? The manager who works on the line or the
laborer who is expected to complete office tasks?
The answer to the second is simple. There is no law that says you cannot be paid
hourly. If you are an hourly employee,
there is no violation if some of your work is management or clerical. You get paid the same, and every hour worked
puts you closer to overtime. Remember exempt
employees are the exception to the rule, even if the modern workforce is
essentially the exception that threatens to swallow said rule.
The other scenario—when an exempt employee starts doing
nonexempt work—is where there is often a problem and is the focus of Plaintiff’s
case.
As the head of a small town police force, Plaintiff was not
simply a manager. He was a “working
chief,” which meant that he was expected to work patrols, cover for officers on
his staff, and regularly perform police work in addition to his supervision
tasks. This type of police work, it
should be mentioned, has consistently been classified as nonexempt work, making
patrol officers and detectives routinely eligible for overtime. (See, e.g., any police drama, ever.)
Going forward, Plaintiff characterized himself as a First
Responder rather than a supervisor given the regular likelihood that would be
called out to respond to an emergency just as often as he would stay in the
office and file papers.
At the trial court level, though, Plaintiff’s position was
rejected. The trial court ruled that he
was an exempt employee because: 1) his salary met the qualifications of the FLSA;
2) he regularly supervised three to five employees; 3) his job was primarily
management; and 4) he had the power to hire or recommend the hiring of employees. While the trial court acknowledged that he
did some physical police work, the trial court was not impressed. Such is to be expected in a small town police
department, and his helping out did not fundamentally change the classification
of his job in the eyes of the FLSA.
On appeal, Plaintiff dropped his state law claim and focused
solely on the issue of whether the trial court correctly identified his primary
duty. He argued that it did not, and
that it erred in concluding that he was an exempt employee (also known as an
executive employee).
The SCOV starts with the definition of an exempt (executive)
employee under the FLSA. It has four
elements: 1) employee must make $455 or more per week; 2) her primary duty must
be the management of the enterprise/department/subdivision; 3) she must
regularly direct the work of two or more other employees; and 4) she must have
the authority to hire or fire other employees or have a strong role in such
hiring/dismissal process.
In this case, Plaintiff does not dispute elements 1 or
3. So the SCOV focuses on elements 2 and
4. It notes that the burden of proving
an employee is exempt falls on the employer.
Taking the management prong first, the SCOV looks to the
FLSA statute for a definition of management.
The definition fits Plainitff’s duties, but the SCOV takes up Plaintiff’s
first responder argument. As discussed
above, police work has long been held to disqualify an employee from the FLSA
exempt status as its physical nature is more akin to the labor for which the
law guarantees hourly pay. As such, the
law allows for “first responders” to claim overtime notwithstanding the other
qualities of their job.
The problem for Plaintiff is that the SCOV does not accept
his argument that his duties were primarily first responder. The Town’s evidence and even Plaintiff’s
definition supported the trial court’s finding that Plaintiff acted as a first
responder only part of the time and mainly to cover for others. The primary duties were management as defined
in the FLSA. The SCOV goes on to note
that even if Plaintiff’s overtime calculations were correct there was no way to
determine which of those hours were spent as a first responder and which were done
fulfilling management tasks. The whole
affair is too tangled up, and the SCOV is not willing to untangle the facts
when the evidence shows that Plaintiff’s primary work was exempt.
The lesson for future practitioners is clear: get your
client’s hours in order before trial and be able to show a significant portion
of them dedicated to labor or first responder work or you will lose. The SCOV will not uphold a FLSA claim simply
because your client works a portion of the job doing non-exempt work, so long
as he generally qualifies as exempt.
Plaintiff’s second argument under element 2 is that the Selectboard
micromanaged him to the point that he was no longer managing the Police
Department. This argument gets short
shrift from the SCOV that concludes such micromanagement to be incidental and
does not transform the nature of Plaintiff’s job. The SCOV also clarifies that the management
requirement is primarily to distinguish the claimant’s position from other
employees at the same or lower level and does not involve how the supervisors
oversee the claimant’s work. In other
words, you do not cease to be management just because your boss sticks her
finger into the soup every time she passes by.
This brings the SCOV to the fourth element and swift
conclusion to the decision. Plaintiff
makes a novel argument here. He claims
that this prong (power to hire and fire) is informed by state law, which he
claims vests sole authority in the police chief. Because the Selectboard never fully gave him
this power and insisted on overseeing all hiring and firing in the police
department, Plaintiff never fulfilled his duty under the statute to do the
hiring and firing. Therefore, the Town
never vested the fourth FLSA element in him, and this failure means that he
does not qualify as an exempt employee.
The SCOV is not impressed.
It quickly notes that the general power to set up and oversee a police
department is vested in the town. The
statute cited by Plaintiff, 24 V.S.A. § 1931, does not change the Town’s
inherent power. It just gives the chief
concurrent authority to oversee his department.
It was not intended to alter the FLSA, and a result, the SCOV declines
to adopt Plaintiff’s line of reasoning.
The SCOV goes on to note that this statute does nothing more
than vest departmental oversight and authority in the chief to work under and
with the selectboard in the management, hiring, and termination of police
department personnel. This is exactly
what the FLSA requires, and the statute proves the Town’s argument about
Plaintiff’s exempt status.
So Plaintiff goes home empty handed without overtime, but
given the circumstances of the case, it is difficult to ignore the fact that
maybe the Town expected too much for too little. Unless this is a case of oil and water (or tritium)
personalities, the Town would be well advised to be more generous with
Plaintiff’s replacement to avoid the hard feelings that lead to litigation and
its concurrent expense.
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