29 C.F.R. 541.2(a)(1) (emphasis added). The regulations further explain the language stating that it
(a) . . . describes those types of activities relating to the administrative operations of a business as distinguished from "production" . . . work. In addition to describing the types of activities, the phrase limits the exemption to persons who perform work of substantial importance to the management or operation of the business of his employer or his employer's customers.
(b) The administrative operations of the business include the work performed by so-called white collar employees engaged in "servicing" a business, as, for, example, advising the management, planning, negotiating, representing the company, purchasing, promoting sales, and business research and control. . . .
(c) As used to describe work of substantial importance to the management or operation of the business, the phrase . . . is not limited to persons who participate in the formulation of management policies or in the operation of the business as a whole. Employees whose work is "directly related" to management policies or to general business operations include those [whose) work affects policy or whose responsibility it is to execute or carry it out. . . .
Id. § 541.205.
The test is whether the employee's activities are "directly related to management policies or general business operations." Bratt, 912 F.2d at 1070 (emphasis in the original). The Bratt court rejected an administrative exemption claim with respect to Court Probation Officers holding that the "essence of this requirement" is captured then its is interpreted to mean "'the running of a business and not merely . . . the day-to-day carrying out of its affairs.'" Id. at 1070. Further, "advising the management" as used in § 541.205(b) is "directed at advice on matters that involve policy determinations, i.e., how a business should be run or run more efficiently, not merely providing information." Bratt, 912 F.2d at 1070. The service that the Marshals provide for the courts does not relate to security policy or operational management but rather to the application of security measures to the day-to-day production process of a working courtroom. The Job Description very clearly states that the "investigator receives guidance from the supervisor on the scope and intensity of effort based on the needs and objectives of the U.S. Marshals Service, the limitations imposed by statute and precedent, the resources available, the constraints imposed by time, geographic areas to be covered and category of investigation." Job Description at 5. Far from advising the "business" or agency regarding appropriate management techniques, a Marshal in this position is subject to detailed direction by his superiors with respect to the scope, time, area, and resources available for him to complete a specific task.
This interpretation also reflects the position of the Department of Labor. In a 1988 ruling the DOL found that a sergeant in a sheriff's department and an investigator for the District Attorney are not administrative employees. DOL concluded that "Inasmuch as law enforcement and investigation activities are primary functions of a sheriff's department and District Attorney's office, it would appear that the activities performed by the sergeant sheriffs and District Attorney investigators are related more to the ongoing day-to-day operations than to management policies or general business operation." Letter Ruling, Wage and Hour Opinion Letter, June 9, 1988.
Even under the OPM's regulations, invoked by the defendant, plaintiff does not qualify as an administrative employee who "is an advisor, assistance [sic] or representative of management, or a specialist in a management or general business function or supporting service." 5 C.F.R. § 551.205. Defendant concedes that there is "a dearth of case law addressing the administrative employee exemption as it applies to federal law enforcement officers," see Defendant's Motion to Dismiss at 10, but urges the court to analogize plaintiff's position as a Marshal to the occupation of either a postal inspector or an air traffic controller. See Sprague v. United States, 230 Ct. Cl. 492, 677 F.2d 865 (Ct. Cl. 1982) (postal inspector is an administrative employee and exempt form overtime provisions of FLSA); Dymond v. United States Postal Service, 670 F.2d 93 (8th Cir. 1982) (postal inspector is an administrative employee and exempt form overtime provisions of FLSA); Campbell v. United States Air Force, 755 F. Supp. 893 (E.D. Cal. 1990) (air traffic controllers exercise sufficient discretion and independent judgment under the FLSA exemption criteria).
In the case of the postal inspectors, the DOL had made an administrative determination that the individuals were not entitled to receive overtime wages under the FLSA and the court accorded great deference to the DOL in its interpretation of its own regulations. Dymond 670 F.2d at 96; see also Murphy Oil Corp. v. Federal Energy Reg., 589 F.2d 944 (8th Cir 1978); West v. Bergland, 611 F.2d 710 (8th Cir. 1979) cert. denied, 449 U.S. 821, 66 L. Ed. 2d 23, 101 S. Ct. 79 (1980). In the instant case, deference to the DOL's administrative decisions would indicate that plaintiff's Motion should be granted on the basis of DOL's ruling about sheriffs' performing law enforcement duties. See pp. 9-10 supra.
Alternately, the Campbell court noted that air traffic controllers performed "predominantly nonmanual work that is highly technical and requires special training, experience, and knowledge. Many of their duties require proficiency in working with computers, radar and other technical equipment." Campbell, 755 F. Supp. at 896. The court concluded that with the exception of an occasional equipment repair, "it does not appear that plaintiffs perform any manual work." Id. Similarly, plaintiff's position specifically requires the manual skills of "physical strength and stamina" involved in "running, stooping, bending, climbing, lifting and carrying heavy objects" Job Description at 7. The plaintiff's "work environment" is not that of the white collar office worker but rather includes "a wide variety of potentially dangerous" and physically stressful situations. Id. Therefore, the description of the Marshal's duties includes a significant amount of manual work and is, therefore, distinguishable from that of air traffic controllers addressed in Campbell.
Finally, if the Court should find, as the defendant argues, that plaintiff's duties and responsibilities, as described, are administrative and that they significantly affect the policies and programs, of the Marshals Service, the Department of Justice, other law enforcement agencies and the administration of justice, see Defendant's Opposition at 8; see also 5 C.F.R. § 551.205(a), the exemption would swallow the rule. In fact, it would be difficult to isolate a law enforcement officer or public safety official who would then be covered by the FLSA. This is not the interpretation that has, in the past, applied to the administrative exemption, and it is not the interpretation that will be applied in this case.
Therefore, the defendant employer has failed to meet the burden of proving the first DOL factor under 29 C.F.R. § 541.2. for administrative exemption; as noted above, all of the factors must be met before an employee may be exempted from the provisions of the FLSA. As a result, the defendant has failed in its burden and it is unnecessary to consider other factors. Accordingly, an accompanying Order will deny defendant's Motion to Dismiss or for Summary Judgment and grant plaintiff's Motion for Partial Summary Judgment.
DATE: April 15, 1992
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 790 F. Supp. 23.
ORDER - April 15, 1992, Filed
For the reasons stated in the accompanying Memorandum, it is this 15th day of April, 1992, hereby
ORDERED: that defendant's Motion to Dismiss or for Summary Judgment should be, and is hereby, DENIED; and it is further
ORDERED: that plaintiff's Motion for Partial Summary Judgment should be, and is hereby, GRANTED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE