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


                                                 -2-
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, 

, 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].” 

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).

                                                 -3-
       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.” 

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.

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).

                                                -4-
       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

                                                -5-
        [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.

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. 

        •       Anti-Crime Unit sergeants, who patrol areas prone to violent crime, working

                alongside police officers in the field. 

¶ 11.

        •       Street Narcotics Enforcement Unit sergeants, who focus on narcotics sales in and

                around public housing developments. 

                                                   -6-
       •       Mounted Unit sergeants, who patrol the City’s streets and parks on horseback,

               ensuring pedestrian safety and maintaining crowd control. 

-79 ¶ 13.

       •       Highway Patrol Unit sergeants, who patrol city highways and respond to vehicle

               and pedestrian accidents. 

¶ 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., 

, 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.

(footnotes omitted).

       Additionally, sergeants take charge of operations at crime scenes if they are the highest

ranking officers present. 

Only sergeants can use certain equipment, such as tasers,

water cannons, and restraining tape. 

. 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-


                                                -7-
frisk reports, and arrest reports. 

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. 

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 . . . 

(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,”

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. 

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.” 

(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


                                                 -8-
command’ to whom subordinates look for ‘guidance and direction,’ particularly when in the

field.” 

Based on that determination, the district court sua sponte granted partial

summary judgment to the City for the claims covering this period. 

, 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. 

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., 

(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


                                                 -9-
not support a reasonable verdict in the City’s favor, but nonetheless determined that the balance

of the evidence amply supported such a verdict. 

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., 

(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 

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.” 

                                                -10-
       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.” 

(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

                                                 -11-
       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.” 

(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.

                                                 -12-
       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. 

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. 

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. 

. 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.” 

. 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.” 

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. 

, 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. 

First responders’

management activities are thus rendered “non-exempt” even when first responders perform


                                                 -13-
management activities that would be exempt management under the standard primary duties test.

        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. 

, 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., 

,

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. 

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. 

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. 

15.




                                               -14-
                                           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, 

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., 

, 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 

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., 

, 104 (2d Cir. 2010). The employer who invokes the exemption bears


                                                -15-
the burden of establishing that the employee falls within the exemption. See 

.

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., 

, 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, 

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


                                                -16-
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. ___, ___, 

, 880

(2011)); Long Island Care at Home, Ltd. v. Coke, 

, 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, 

, 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 

. 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.” 

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.” 

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


                                                 -17-
judgment on the matter in question.” Her interpretation, therefore, warrants “controlling” Auer

deference by this Court. See, e.g., Talk Am., 

.

       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,” 

and

therefore should not be deemed “management.”

       The City argues that neither the plain language of the regulation nor the preamble


                                                -18-
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.” 

. 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

                                              -19-
       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).”

(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


                                                 -20-
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, 

, 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


                                                 -21-
enforcement duties, can still qualify as “management.”

       The Secretary’s conclusion is also consistent with this Court’s decision in Reich v. New

York, 

(2d Cir. 1993), overruled by implication on other grounds by Seminole Tribe v.

Florida, 

(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 

. 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


                                                -22-
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, 

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.” 

Since plaintiffs “perform

law enforcement duties alongside patrol officers in the field,” 

(footnote omitted), and

“generally spend much of their time in the field with their subordinates,” 

(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

(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


                                                -23-
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.” 

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, 

, 95-96 n.2 (2d Cir. 2010).

                                                 -24-
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, 

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, 

. 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, 

at 344-45. Additionally,

sergeants are responsible for their subordinates’ “appearance, punctuality, attendance,

productivity, good order and discipline.” 

(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


                                                 -25-
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, 

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.

                                                -26-
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, 

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


                                                 -27-
revisions were “necessary to restore the overtime protections intended by the FLSA which have

eroded over the decades,” 

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 . . . .

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, 

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.


                                                -28-
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 

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, 

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


                                                 -29-
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.




                                                -30-