PUBLISH

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT          FILED
                         ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             12/15/99
                                 No. 99-8160
                                                          THOMAS K. KAHN
                         ________________________             CLERK
                        D. C. Docket No. 97-00144-CV-2



DAVID B. FALKEN, ANGIE J. MYERS, et al.,

                                                           Plaintiffs-Appellees,

                                    versus


GLYNN COUNTY, GEORGIA,

                                                          Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________
                            (December 15, 1999)


Before BLACK and WILSON, Circuit Judges, and HILL, Senior Circuit Judge.

BLACK, Circuit Judge:
      Appellant Glynn County, Georgia, (the County) appeals the district court’s

judgment that the County violated the Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201-219, by not paying overtime compensation to certain employees of its fire

department. The sixteen Appellees are certified as emergency medical services (EMS)

responders and often are assigned to EMS units. In addition, however, the employees

are certified firefighters and can be assigned to shifts on the fire trucks; they can and

do perform firefighting functions after arriving to calls which do not require EMS

duties. The County argued the nature of this employment position in the fire

department entitled it to apply the partial overtime exemption under § 207(k) of the

FLSA for employees engaged in “fire protection activities” even though a majority of

the calls to which the employees responded were related to medical services rather

than fires. The district court disagreed and awarded damages for unpaid overtime to

the employees. We affirm in part and vacate and remand in part.

                                 I. BACKGROUND

      The sixteen plaintiffs (the EMS employees) are current and former

employees of the Glynn County, Georgia, fire department. They are certified

firefighters. They also are trained to perform EMS duties, and hence their

employment assignment was to the EMS division rather than the fire division of

the department. The divisions are highly integrated, however; there are


                                           2
overlapping systems of pay, promotions, and pensions. There is not a clean

administrative separation between the department’s EMS employees and its

employees who are only firefighters.

      When the occasion demands, the EMS employees may work shifts on the

fire trucks simply as firefighters. To this end, they receive regular training in

firefighting in addition to their regular medical training. The EMS employees are

rotated through the EMS and fire engine units as needed to fill the personnel

requirements for shifts of both types.

      In addition, the job functions of the EMS employees assigned to the EMS

units frequently overlap with the operations of the firefighters assigned to the fire

trucks. The EMS units respond to every medical emergency call, many of which

may not involve the dispatch of fire units. EMS units also are dispatched to every

structural fire. At those fires, the EMS employees perform rescue operations,

deliver any medical care needed, and join in fighting the fire if their other duties

are completed or unnecessary. Similarly, EMS units may be sent to vehicle fires,

brush fires, and other miscellaneous fires, although they usually are not sent in

such cases. When sent, the EMS employees also have responsibility for, and do

engage in, fighting these fires if no medical assistance is required. Finally, EMS




                                           3
units are dispatched to some but not all automobile accidents, other accidents,

crime scenes, or public assistance calls if there are injuries.

      The parties’ Stipulated Facts and incorporated exhibits also address the

number and types of calls to which EMS units responded during the period

involved in the lawsuit. The district court found that about 64% of EMS unit calls

related solely to medical emergencies. These calls accounted for about 71% of the

time the EMS employees spent out of the station responding to calls. The amount

of time spent out of the station on calls, however, was only a small fraction of the

total work hours of the EMS employees. Time spent responding to calls of all

types, including medical calls, fires, car accidents, and so on, amounted to just over

5% of total work hours. Medical calls constituted slightly less than 4% of total

work hours. Accordingly, the EMS employees spent almost 95% of their time

waiting to be dispatched on emergency calls.

      While waiting for emergency calls to come in, the EMS employees

performed a number of tasks related to their firefighting or EMS duties. The EMS

employees did maintenance work on the EMS vehicles and equipment. When they

completed these tasks, they assisted the employees assigned to the fire engines

with cleaning and maintenance of the fire station, fire engines, and firefighting

equipment. In addition, the EMS employees participated in waiting time activities


                                            4
such as checking fire hydrants, making pre-fire plans, and instructing the public in

fire safety education programs.

      The County believed that the foregoing facts brought the EMS employees

within the overtime exemption in § 207(k) of the FLSA for employees engaged in

“fire protection activities.” The EMS employees disagreed and sued the County

for violating the FLSA by not paying them under the ordinary overtime standard.

The district court held that the County had failed to meet its burden of proving that

the fire protection activities exemption applied, and awarded damages for unpaid

overtime to the EMS employees.

                                  II. DISCUSSION

      On appeal, the County argues the district court incorrectly interpreted the

FLSA, the Department of Labor’s (DOL’s) implementing regulations, and the case

law in its judgment for the EMS employees. We review the district court’s

findings of fact for clear error and its legal conclusions de novo. See Collier v.

Turpin, 

, 1193 (11th Cir. 1999).

A. The FLSA and the DOL’s Implementing Regulations.

      The FLSA establishes a general presumption that entitles all workers to

time-and-a-half overtime pay for hours worked in excess of 40 per week. See 29

U.S.C. § 207(a). The FLSA creates a number of exemptions, however, for certain


                                          5
types of workers for whom different numbers of hours apply before overtime must

be paid. One of these is a partial exemption for a “public agency . . . with respect

to the employment of any employee in fire protection activities.” 

Fire protection employees are due overtime only for hours in excess of 212 worked

in a 28-day period, equivalent to an average of 53 hours per week. See 29 C.F.R.

§ 553.201(a). The FLSA does not define “fire protection activities.”1

       There is no statutory exemption for employees whose sole function is

performing EMS duties. Therefore, EMS workers are owed overtime under the

ordinary 40 hours standard unless their employer can prove that the EMS workers

should be treated as falling within the exemption for employees engaged in “fire

protection activities.” See O’Neal v. Barrow County Bd. of Comm’rs, 

, 677 (11th Cir. 1993) (holding that employer bears burden of proof on

applying fire protection activities exemption to EMS workers).



       1
          The § 207(k) exemption also reaches “any employee in law enforcement activities;” such
employees must be paid overtime for hours in excess of 171 in 28 days (about 43 hours per week).
See 29 C.F.R. § 553.201(a). The parties in this case apparently have relied almost exclusively upon
the fire protection activities portion of the § 207(k) exemption. To the extent the EMS employees
perform medical functions related to law enforcement—for example, accompanying police officers
to crime scenes with reports of injuries—those hours also are exempt activity. See 29 C.F.R.
§ 553.215; O’Neal v. Barrow County Bd. of Comm’rs, 

, 681 (11th Cir. 1993) (noting
that emergency medical calls relating to police activity, such as stabbings, fights, or domestic
violence, fall within the exemption). In following the parties by referring throughout this opinion
to the fire protection activities exemption, we do not suggest that the County cannot also apply the
law enforcement activities exemption, where appropriate, to some of the EMS employees’ work
time.

                                                 6
       Although the FLSA does not define fire protection activities or the manner

in which EMS workers may be brought within the § 207(k) exemption, the DOL’s

implementing regulations provide this analysis. See 29 C.F.R. §§ 553.201-

553.215. As with all agency rules, the DOL’s regulations implementing the FLSA

are accorded Chevron deference. See Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 

, 842-43, 

, 2781-82 (1984)

(holding that courts must defer to executive branch regulations implementing

statutes so long as agency’s regulation is “based on a permissible construction of

the statute”).

       First, the regulations fill in the gap in the FLSA by providing a four-part test

to define fire protection activities. For simplicity, we will call an employee

meeting this test a “firefighter.” A firefighter is an employee:

       (1) who is employed by an organized fire department or fire protection
       district; (2) who has been trained to the extent required by State
       statute or local ordinance; (3) who has the legal authority and
       responsibility to engage in the prevention, control or extinguishment
       of a fire of any type; and (4) who performs activities which are
       required for, and directly concerned with, the prevention, control or
       extinguishment of fires, including such incidental non-firefighting
       functions as housekeeping, equipment maintenance, lecturing,
       attending community fire drills and inspecting homes and schools for
       fire hazards.

29 C.F.R. § 553.210(a). Thus, employees who perform only EMS functions—that

is, who have training and responsibilities for medical but not firefighting

                                           7
duties—will not meet this test and cannot be brought within the § 207(k)

exemption on the ground that they are firefighters.

      Second, however, the regulations do not limit the fire protection activities

exemption only to firefighters. There are two provisions under which EMS

workers may be included within the fire protection activities exemption. In one,

EMS workers may be paid like firefighters “if such personnel form an integral part

of the public agency’s fire protection activities. See § 553.215.” 29 C.F.R. §

553.210(a) (emphasis added). In the other, regulation § 553.215 provides that:

      Ambulance and rescue service employees of a public agency other
      than a fire protection . . . agency may be treated as employees
      engaged in fire protection . . . activities . . . if their services are
      substantially related to firefighting . . . activities in that (1) the
      ambulance and rescue service employees have received training in the
      rescue of fire, crime, and accident victims or firefighters . . . injured in
      the performance of their . . . duties, and (2) the ambulance and rescue
      service employees are regularly dispatched to fires, crime scenes,
      riots, natural disasters and accidents.

29 C.F.R. § 553.215 (emphasis added). The regulations provide that employment

by the fire department alone is not sufficient to constitute employment in fire

protection activities to bring EMS workers under the § 207(k) exemption—fire

department employees performing only EMS functions must be an “integral part”

of firefighting to be covered. Similarly, EMS workers employed by an agency

separate from the fire department cannot be paid like firefighters unless the two-


                                           8
part “substantially related” test is met. See Wouters v. Martin County, 

,

929 (11th Cir. 1993) (noting this distinction). Thus, when the employees are not

firefighters but EMS workers, the employer nevertheless may pay them under the

fire protection activities exemption if the employer can prove one of the two

provisions applies.

      Third and finally, the regulations also include a provision under which

employers may lose the exemption for employees who otherwise would be exempt.

The so-called 80/20 rule states:

      Employees engaged in fire protection . . . activities . . . may also
      engage in some nonexempt work which is not performed as an
      incident to or in conjunction with their fire protection . . . activities.
      For example, firefighters who work for forest conservation agencies
      may, during slack times, plant trees and perform other conservation
      activities unrelated to their firefighting duties. The performance of
      such nonexempt work will not defeat . . . [§ 207(k)] exemption[]
      unless it exceeds 20 percent of the total hours worked by that
      employee during the workweek or applicable work period. A person
      who spends more than 20 percent of his/her working time in
      nonexempt activities is not considered to be an employee engaged in
      fire protection . . . activities.

29 C.F.R. § 553.212(a). The regulations require that 80% of an employee’s time

must be spent either on fire protection activities themselves, or on activities related

to or incidental to fire protection activities. Cf. 29 C.F.R. § 553.210(a)(4)

(describing activities incidental to fire protection, such as housekeeping in the

station, equipment maintenance, and inspections). To retain the exemption, the

                                           9
employer has the burden of proving that the employee did not exceed the 20%

limitation on nonexempt activity. See 

.

B. The Case Law: Applying the Regulations to Employees with EMS Duties.

      There are two categories of cases in which the DOL’s regulations

implementing the FLSA fire protection activities exemption have been applied to

employees who perform EMS duties. In the first, the employees are EMS workers

only but the employer seeks to apply the fire protection activities exemption under

either the § 553.210(a) integral part test or the § 533.215 substantially related test.

In the second, the employer invokes the fire protection activities exemption

because the employees are fully cross-trained as dual-function firefighting and

EMS personnel; that is, they are capable of acting, and in fact do act, as both

firefighters and EMS workers in their employment. This Court has decided cases

only in the first category until this case, which falls into the second category. We

briefly discuss the first category, however, because the district court appears to

have used it in reaching the decision in favor of the EMS employees.

      1. The First Category.

      This Court’s prior cases interpreting the DOL’s regulations each involved

employees who were solely EMS workers. That is, the employees were not

firefighters within the definition in § 553.210(a)(1)-(4). The employers sought to


                                           10
apply the fire protection activities exemption to the EMS-only workers under the

other regulations. In O’Neal v. Barrow County Board of Commissioners, the

EMS-only workers were employed by an agency separate from the fire department,

so the substantially-related test of § 553.215 applied. See 

.2 The same was true in Spires v. Ben Hill County, 

(11th Cir.

1993),3 and in Jones v. City of Columbus, 

(11th Cir. 1997), cert.

denied, 

(1998).4 In Wouters v. Martin County, the EMS-only

workers were employed by the fire department, so the integral part test of

§ 553.210(a) applied. See 

, 929.5

       These cases developed several important principles for applying the DOL’s

regulations to facts involving EMS-only workers. First, when applying the 80/20

rule to EMS-only employees, medical functions and duties performed outside the

       2
          The O’Neal court vacated and remanded the summary judgment for the county because the
district court’s findings of fact in its order were insufficient to dispose of all material facts in the
case. 

.
       3
          In Spires, this Court affirmed the judgment for the EMS plaintiffs because the county had
failed to prove its employees’ activities satisfied the regularly dispatched prong of § 553.215. 

.
       4
         In Jones, the city relied exclusively on § 553.215 to justify application of the exemption
to its EMS employees. 

. This Court vacated and remanded the summary
judgment in favor of the city because the district court had not permitted the plaintiffs an adequate
opportunity for discovery before granting summary judgment. See 

       5
          As in O’Neal, the Wouters court vacated and remanded the district court’s summary
judgment because the findings of facts were insufficient to resolve all material issues of fact. 

.

                                                  11
scope of firefighting dispatches by the fire department must be considered

nonexempt activities that will defeat the fire protection activities exemption if they

exceed 20% of the EMS-only employees’ total work hours. See 

(stating that “the work that the County has characterized as ‘medical

emergency hours’ is nonexempt . . . because [it is] unrelated to fire protection or

law enforcement.”); 

; 

; 

(explaining that “this court has held that hours spent on medical

emergency dispatches, patient transfers and accident scenes unrelated to

automobiles are nonexempt”). Second, the court must evaluate the employer’s data

about the types of calls to which the EMS-only workers respond and determine

whether the hours spent on nonexempt calls exceed 20% of the employees’ total

work hours. If the EMS-only employees spend more than 20% of their work

hours in the performance of medical activities not related to firefighting—that is,

emergency calls of a medical nature only, such as transferring victims of heart

attacks or falls to the hospital—the fire protection activities exemption is lost. See

; 

.6


       6
         Cf. Christian v. City of Gladstone, 

, 933 (8th Cir.), cert. denied, 

(1997) (district court denied application of fire protection activities exemption where it found that
nonexempt “[t]ime spent responding to, returning from, or completing paperwork on medical calls
or accidents other than car accidents, and time devoted to emergency medical training or study
related to emergency medical services” exceeded 20% of total work hours).

                                                  12
      Third and finally, however, this Court has noted that most emergency

workers, including both firefighters and EMS-only workers, spend only a small

fraction of their total work hours out of the station responding to emergency calls,

and accordingly spend a great proportion of their work time waiting at their posts

for emergency calls to arrive. In O’Neal, this Court concluded that waiting time is

exempt:

      The remainder of the hours spent by the EMTs awaiting calls,
      however, is related to fire protection or law enforcement in that the
      EMTs are awaiting fire and police calls just as they are awaiting
      medical emergency and accident calls. Thus, the station time . . . is
      exempt work, except to the extent the County may require the EMTs
      to perform tasks that are unrelated to fire protection or law
      

. Thus, O’Neal holds that waiting time spent simply waiting is

exempt time because it is related to fire protection activities, even for EMS-only

workers. Waiting time is not exempt, however, if the employees spend this time

undertaking activities not related to fire protection. For example, just as employers

of forest firefighters lose the exemption if the workers spend too much of their

waiting time on nonexempt conservation activities, see 29 C.F.R. § 553.212(a), so

also employers of EMS-only workers lose the exemption if the workers spend too

much of their waiting time on activities related to nonexempt medical functions.

      2. The Second Category.


                                         13
      Not all fire departments employ EMS workers in the same manner that the

employers did in the cases discussed above. Instead of EMS-only employees,

some fire departments require that every employee be a trained firefighter,

including those employees performing EMS duties. That is, these fire departments

use dual-function EMS/firefighting employees.

      The DOL has concluded that dual-function EMS/firefighters should be

evaluated under a different interpretation of the fire protection activities exemption

than EMS-only employees. The Wage & Hour Division stated the following in a

1995 opinion letter:

      We have concluded that firefighters who are cross-trained as EMS
      employees qualify for exemption under [§ 207(k)] as fire protection
      employees where they are principally engaged as firefighters meeting
      the four tests outlined in 29 C.F.R. § 553.210(a), as set forth above,
      and where the EMS functions they perform meet the tests described in
      29 C.F.R. § 553.215 for ambulance and rescue employees. Under
      these circumstances, we would consider that ambulance and rescue
      activities are incidental to the employees’ fire protection duties within
      the meaning of the fourth test in 29 C.F.R. § 553.210(a), including
      any ambulance and rescue activities related to medical emergencies,
      rather than fires, crime scenes, riots, natural disasters, and accidents.

             In these circumstances, the time engaged in ambulance and
      rescue activities would be considered to be work performed as in
      incident to or in conjunction with the employees’ fire protection
      activities within the meaning of 29 C.F.R. § 553.212(a), and would
      not count in the 20 percent limitation on nonexempt work.

Wage & Hour Division, U.S. Department of Labor, Opinion Letter, Feb. 13, 1995.


                                          14
      Under this interpretation of the regulations, medical functions would be

exempt activity when performed by dual-function EMS/firefighters as defined in

the opinion letter, although the same activities are nonexempt under O’Neal when

performed by EMS-only employees. First, the DOL letter requires that the

employees satisfy the definition in § 553.210(a)(1)-(4); that is, the employees must

be firefighters. Second, the letter requires that the performance of EMS duties

meet the two-part substantially related test of § 553.215—that is, the employees are

trained in rescue and EMS units are regularly dispatched to firefighting-related

emergencies. This ensures that even the EMS functions are closely connected to

core fire protection activities in practice. Third, the DOL concludes that where

both of these tests are met, purely medical functions are not nonexempt under the

80/20 rule. For such dual-function EMS/firefighters, the DOL determines that

medical functions are related to and incidental to both employee fire protection

functions, firefighting and EMS duties. Another way of stating the same point is

that the nature of the employment position of a dual-function EMS/firefighters is,

in essence, employment in fire protection activities per se—because both aspects

of the job each constitute employment in fire protection activities, job functions

related to either (which includes purely medical functions) are exempt. Although

this Court held in O’Neal that medical emergency calls and corollary activities are


                                         15
nonexempt when performed by EMS-only employees because such duties are not

related to fire protection activities, the DOL argues that medical activities and

corollary activities are exempt when performed by dual-function EMS/firefighters

because the activities are related to fire protection activities for that kind of

employee.

      We must defer to the DOL’s interpretation of its FLSA regulations unless

the interpretation is “plainly erroneous or inconsistent with the regulation.” See

Auer v. Robbins, 

, 461, 

, 911 (1997). The DOL’s

application of the fire protection activities exemption to dual-function

EMS/firefighters is a permissible interpretation of the regulations and the FLSA.

We therefore hold that the standard set forth in the DOL’s opinion letter cited

above governs the application of the fire protection activities exemption to dual-

function EMS/firefighters. In particular, the holding of O’Neal, that medical

activities are nonexempt for purposes of the 80/20 rule, is not applicable to such

employees.

      The Eighth Circuit reached the same result in a comparable case. See

Christian v. City of Gladstone, 

(8th Cir.), cert. denied, 

(1997). The court wrote that:

      Here, the stipulated facts show that the paramedics respond to fires,
      fight them, and provide paramedic services at those fires, as well as on

                                           16
      calls not involving fires. Nearly all of their time is spent on such
      activities, related training, support services, and waiting for calls, and
      they do not spend much time on activities unrelated to their
      firefighting or emergency medical service activities. Providing
      paramedic services on accident and medical emergency calls not
      stemming from a fire or car accident does not alter the nature of their
      duties or cause them to perform tasks unrelated to their job. The
      district court thus erred by considering time spent on paramedic
      activities not stemming from a fire or car accident as nonexempt.
      Section 553.212 does not apply here to defeat the partial overtime
      exception for the paramedics.

Medical functions, even those unrelated to firefighting, are exempt time

under the 80/20 rule when performed by dual-function EMS/firefighters.

      As the Eighth Circuit’s analysis shows, the three principles described above

from this Court’s EMS-only cases do not apply in the same way to cases involving

dual-function EMS/firefighters. First, responding to emergency calls requiring

only medical services, and performing activities related to and incidental to EMS

duties, is exempt work time for dual-function EMS/firefighters. Second, when

analyzing the responses to emergency calls under the 80/20 rule, only emergency

calls not related to either firefighting or EMS functions are nonexempt. For

example, patient transfers and household accidents are exempt calls for dual-

function EMS/firefighters. Third, activities performed during waiting time also are

analyzed differently under the 80/20 rule. As with EMS-only workers, time spent

simply waiting is exempt. Activities performed during the waiting time also are


                                          17
exempt if they are related or incidental to exempt functions, and both firefighting

and EMS functions are exempt for dual-function EMS/firefighters.

       Thus, an employer of dual-function EMS/firefighters will lose the fire

protection activities exemption under the 80/20 rule only if the employees spend

more than 20% of their total work hours on activities unrelated to either

firefighting or medical services. If waiting fire department employees perform

other public services, by engaging in activities analogous to § 553.212(a)’s

example of forest conservation, the employer risks losing the exemption. If the

employees perform firefighting and EMS functions, and do nothing during their

waiting time other than these duties and related or incidental corollary tasks,

however, then the employer’s burden of proof under the 80/20 rule likely would be

easily satisfied.

C. Application to this Case.

       The district court appears to have applied the incorrect legal standard when

making its conclusions of law. The district court’s judgment for the EMS

employees applied the EMS-only framework of the O’Neal line of cases. First, the

court determined that because the EMS employees were employed by the fire

department, the application of the fire protection activities exemption involved the

integral part test of § 553.210(a) rather than the substantially related test of


                                           18
§ 553.215. The court concluded that the EMS employees are an integral part of the

Glynn County fire department. In stating its reasons for reaching this conclusion,

however, the court listed the fact that the EMS employees met the four elements of

the firefighter test of § 553.210(a)(1)-(4) and the two parts of the substantially

related test of § 553.215. Second, the court examined whether the County had met

its burden of proof under the 80/20 rule. In making this evaluation, the court

applied the O’Neal rule that activities related to medical functions are nonexempt.

The court determined that the approximately 4% of total work hours spent

responding to medical calls was nonexempt. The court also noted that although

some waiting time was spent on activities related to firefighting, such as

maintenance of the fire engines and firefighting equipment, the parties also had

stipulated that the EMS employees spend some of their waiting time on

maintenance of the EMS vehicles and equipment. The court apparently relied

solely on this latter fact when it concluded:

      There is some evidence in the record that Plaintiffs are required to do
      some nonexempt work between calls. . . . It is Defendant’s burden to
      adduce sufficient evidence to the Court to prove by a preponderance
      of the evidence that Plaintiffs spend less than twenty percent of their
      on duty time on nonexempt activities. Defendant has failed to carry
      that burden.

The court thus held that although the EMS employees fell within the fire protection

activities exemption, the County lost the exemption by failing its burden under the

                                          19
80/20 rule. The court awarded the EMS employees damages for unpaid overtime

under the ordinary 40 hours overtime standard.

      On the facts of this case, the district court should have applied the dual-

function analysis rather than the EMS-only framework. The consequences of this

error do not invalidate all of the court’s conclusions, however. The questions

whether the EMS employees meet the tests of § 553.210(a)(1)-(4) and § 553.215

remain relevant under the dual-function analysis. On the other hand, the court’s

evaluation of the 80/20 rule was incorrect because the O’Neal rule that medical

activities are nonexempt does not apply in the dual-function analysis.

      Although it did not cite the regulations, the district court held that the

County had proven that the EMS employees satisfy the two tests applicable under

the dual-function analysis: the § 553.210(a)(1)-(4) firefighter definition and the

§ 553.215 substantially related test. The court concluded the EMS employees are

employed by a fire department, are trained pursuant to the requirements of Georgia

law, have the authority and responsibility for fighting fires of any type, and

perform firefighting activities and other activities incidental thereto (such as fire

station and firefighting equipment maintenance). These conclusions satisfy all four




                                           20
elements of § 553.210(a)(1)-(4).7 Similarly, the district court concluded the EMS

employees are fully trained in rescue and are regularly dispatched to fires and other

firefighting-related emergencies when assigned to EMS units. These are the two

elements of the substantially related test of § 553.215. Our review of the record

confirms that these legal conclusions by the district court are correct; the County

has proven that the EMS employees satisfy both tests. We therefore hold that the

dual-function analysis of the DOL opinion letter must be applied in this case.

       The district court’s application of the 80/20 rule, however, was inconsistent

with the dual-function analysis. The district court treated time spent on medical

calls as nonexempt. It also cited the EMS employees’ maintenance of the EMS

vehicles and equipment as evidence that the County had failed to carry its burden

under the 80/20 rule because the EMS employees performed an indefinite amount

of nonexempt work during waiting time. Under the dual-function analysis,

however, both of these activities are exempt time for dual-function

EMS/firefighters like the EMS employees in this case.

       Regrettably, the record is insufficient for us simply to apply the correct legal

standard to the facts. Although the stipulated facts and exhibits supplied by the


       7
         In addition, the court noted that the EMS employees “are routinely assigned to fire engines,
snorkel trucks, and rescue trucks.” This conclusion further supports the determination that the EMS
employees are firefighters within the meaning of § 553.210.

                                                 21
parties address in detail the training and responsibilities of the EMS employees and

the number, nature, and length of the calls to which the EMS units responded

during the period covered in the lawsuit, they do not adequately reveal the

activities, if any, performed by the EMS employees during their waiting time. It

appears each side believed it could prevail without this information; at oral

argument before this Court, the parties argued past each other, as apparently they

did before the district court.8 The legal dispute in this case, however, cannot be

resolved fully without this information.

       For purposes of examining both the time spent on emergency calls to which

the EMS units respond and the time spent waiting for calls to come in, activities

performed by the EMS employees are exempt if they involve directly, or are


       8
          In their proposed conclusions of law, the EMS employees argued the County had failed to
meet the regularly dispatched prong of the § 553.215 test. The EMS employees therefore asserted
the district court did not have to reach the 80/20 rule. In addition, if the court did reach the issue,
the EMS employees urged the court to apportion the waiting time according to the proportion of
calls. This easily would make more than 20% of total work hours medical and thus nonexempt
because the EMS employees maintained medical activities were nonexempt. We rejected this
apportionment of waiting time in O’Neal, however. 

. Waiting time is
exempt, for both EMS-only and dual-function EMS/firefighter employees, except any portion
thereof actually spent performing nonexempt activities (with medical activities being nonexempt
for the former and exempt for the latter). See 

        The County’s proposed conclusions of law, on the other hand, argued (correctly) that medical
time should be counted as exempt time for these employees. The County then concluded without
explanation that this alone demonstrated that the 20% limitation on nonexempt activities was not
exceeded. The County apparently believed the stipulated facts proved that the only activities carried
out during waiting time were related either to firefighting or EMS duties. The district court did not
read the stipulations that way, however, and did not make a finding of fact that no activities
unrelated to either firefighting or EMS duties are performed during waiting time.

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related or incidental to, either firefighting or EMS medical functions. The burden

lies on the County to prove affirmatively that no more than 20% of the total work

hours of the EMS employees is spent on nonexempt activities. Some parts of the

record suggest that the EMS employees do not perform any tasks unrelated to

firefighting or EMS duties during waiting time.9 If this is true, the County would

prevail because all of the waiting time (both waiting and activities performed while

waiting) would be exempt, and the district court found that about 95% of the EMS

employees’ work time is waiting time. These indications in the record, however,

are too little to support a judgment for either party under the 80/20 rule. Although

there is no evidence that the EMS employees engage in forest conservation, road

repairs, or any other patently nonexempt activity during waiting time, there simply



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          Two pieces of evidence imply, but are insufficient to prove, the nature of the waiting time
activity by the EMS employees. The Stipulated Facts state that the EMS employees perform
maintenance and other miscellaneous incidental functions during waiting time. This might mean
the employees do nothing else. In Joint Exhibit 4, however, the fire department’s own monthly work
reports list other tasks. These documents show that in addition to responding to emergency calls,
fire department employees attend training sessions, perform fire safety inspections, craft firefighting
plans, administer blood pressure tests to citizens, and teach first aid and CPR in the community. It
is not clear how these activities affect the 80/20 rule analysis. In the first place, each of these
activities probably is exempt time for dual-function EMS/firefighters. Secondly, these hours are not
broken down between fire units and EMS units, so it is not clear their performance would push the
EMS employees over the 20% nonexempt level. Finally, the number of hours spent on these tasks
appears to be a very small fraction of the total hours worked by fire department employees in a given
month; this also implies that the 20% limitation is not exceeded. Our description of these two pieces
of evidence, however, should make clear that the current record is insufficient for this Court to
determine the 80/20 rule. Likewise, the district court had an inadequate basis to rule for or against
the County under the 80/20 rule.

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is insufficient detail about the type and length of activities the EMS employees

actually do perform while waiting.

      In conclusion, given the state of the record, we cannot determine, by

applying the correct legal standard to the record as we normally would, whether the

County has met its burden on the 80/20 rule. The parties appear to have believed,

each for different reasons, that they did not have to stipulate to the exempt and

nonexempt activities, or lack thereof, performed by the EMS employees during

their waiting time. The parties must introduce additional evidence concerning the

activities undertaken by the EMS employees during their waiting time to enable the

district court to apply the 80/20 rule under the dual-function analysis. We

therefore vacate the district court’s holding under the 80/20 rule and remand the

case for further proceedings under the 80/20 rule in the dual-function analysis.

                                 III. CONCLUSION

      We hold that the analysis of the FLSA fire protection activities exemption

described in the 1995 DOL opinion letter discussed above applies to dual-function

EMS/firefighters like the County’s EMS employees in this case. We conclude the

district court’s evaluation of the elements of the firefighter test of § 553.210(a)(1)-

(4) and the substantially related test of § 553.215 was correct. Those tests also

apply under the dual-function analysis. We therefore affirm on other grounds the


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district court’s holding that the EMS employees fall within the fire protection

activities exemption. The district court’s examination of the 80/20 rule of

§ 553.212(a), however, was incorrect because the district court should not have

treated EMS medical functions and activities as nonexempt. The record in this

case is not sufficiently clear for this Court to reach a legal conclusion under the

80/20 rule in the dual-function analysis. We therefore vacate and remand in part

the judgment of the district court for further proceedings regarding the 80/20 rule

consistent with this opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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