Labor & Employment Law

Security Officers Found To Be Exempt Employees: An Interesting Twist

By Mark Tabakman

It is often difficult to claim that security officers are exempt from overtime under the Fair Labor Standards Act.  However, in a recent federal lawsuit, four officers who were employed by a private, so-called, paramilitary force that provided security services at the atomic research laboratory at Los Alamos were ruled to be executive employees and thus were exempt from overtime.  The judge held that the primary duties of these men were managerial and they were not acting as first responders the majority of their working time.  The case is entitled Maestas v Day & Zimmerman, LLC and was filed in the District of New Mexico.

The plaintiffs were two lieutenants, a captain, and a major.  They tried to have a class certified; the judge refused to conditionally certify the class but instead focused on the employer's simultaneously filed motion for summary judgment/dismissal.  That motion sought to eliminate the possibility not only of the 'class,' but of any individual plaintiff gaining a recovery by arguing that any/all potential class members, starting with the named plaintiffs, were not entitled to overtime as exempt employees.

The officers claimed that only functioned as first responders, whose mission was to safeguard and protect the atomic facility, all forty-three square miles of it, as well as the inhabitants of the facility and the atomic secrets stored there.  Thus, the case, interestingly, presented the tension between two FLSA regulations, one stating that first responder classifications are non-exempt, while the executive exemption regulations addressed the issue of the circumstances under which someone's primary duty was deemed to be supervision/management.

The employer countered by asserting that the officers retained management as their primary duty, even when performing their first responder tasks.  The employer also relied upon (as I have often done) a Department of Labor Opinion Letter that held that employees would still qualify for the executive exemption, notwithstanding that they performed first responder duties provided that they continued to meet all of the tests/elements for the exemption.  Couched in these terms, the judge determined that the officers did indeed retain management as their primary duty.

The evidence showed that the plaintiffs trained employees, assigned work, based on their assessments of employees' fitness for the jobs at issue, resolved complaints from workers and managed the manner in which security matters and emergencies were responded to.  The judge rejected that the plaintiffs' contention that, as first responders, they were entrusted with keeping the facility at full readiness, finding that the global mission of the security force—protection of Los Alamos---was separate and apart from the issue of what their primary duty truly was.

The defense of exemption was the magic bullet that wiped out the entire class action.  Nice result if the facts support the theory.

Full post as published by Wage & Hour - Development & Highlights on March 25, 2011 (boomark / email).