FLSA2020-9 — Whether emergency-management coordinators employed by a county government qualify for the learned professional or administrative exemptions under Section 13(a)(1) of the FLSA

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

FLSA2020-9
June 25, 2020
Dear Name*:
This letter responds to your request for an opinion on whether emergency-management
coordinators employed by a county government qualify for the learned professional or
administrative exemptions under Section 13(a)(1) of the Fair Labor Standards Act (FLSA). This
opinion is based exclusively on the facts you have presented. You represent that you do not seek
this opinion for any party that the Wage and Hour Division (WHD) is currently investigating or
for use in litigation that began before your request.
BACKGROUND
The employer is a county government that employs a Director of Emergency Management who
is responsible for the county’s response to emergencies such as fires and floods, furnishing
services and assistance to residents, and mitigation activities to prevent or lessen the impact of
disasters. The director is assisted by two Emergency Management Coordinators. The
coordinator positions require a bachelor’s degree in public administration, political science,
emergency management, or a related field; certification in specific courses offered through the
Federal Emergency Management Agency’s (FEMA) Emergency Management Institute; and,
soon, a state certification in emergency management. You describe the coordinators’ duties as
including the following:
• Coordinating activities with volunteers, clerical staff, and County Emergency Support
Function personnel when the Emergency Operations Center is activated;
• Providing community outreach and education for various diverse groups throughout
the county and in partnership with towns and cities;
• Assisting in the development and maintenance of a 24-hour Emergency Operations
Center and/or Recovery Coordination Center when activated;
• Coordinating activities of large and diverse agencies and organizations;
• Organizing disaster drills and exercises for all phases of emergency management,
reviewing results and making improvements;
• Working with all local agencies and media in impending or actual disasters, and in
exercises to coordinate emergency response and recovery;
• Coordinating community resources, reporting activities and conditions accordingly,
and requesting assistance as needed;
• Composing correspondence, reports, project plans, news release bulletins, and other
materials, and acting as press information officer if needed;
• Keeping the County Manager, County Commissioners, Sheriff, and necessary parties
fully informed of all Emergency Management matters;

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• Preparing and distributing disaster-preparedness material to citizens with the intent of
offering appropriate means of education;
• Recruiting volunteer personnel;
• Supervising and scheduling work;
• Giving presentations to community organizations;
• Assisting schools, organizations, and industries with emergency operations plans;
• Ensuring adequate disaster alerting, warning, and in-place sheltering procedures are
developed, implemented, and exercised;
• Planning and organizing seminars, workshops, and training in the emergency-
management field for county personnel and the public;
• Participating in various committees and boards related to program activities and
responsibilities;
• Writing and reviewing grant proposals;
• Working on resilience efforts for the Office of Emergency Management, including
both social and built infrastructure and community systems;
• Working across departments and divisions, and with local communities to maximize
innovation and minimize shocks and stressors;
• Providing geographic information system (GIS) mapping support to the Office of
Emergency Management; and
• Working outside normal work hours and on nights and weekends as needed for
coordination activities and emergencies, including on-call status and 24-hour
operations.
You represent that if the coordinators’ duties qualify as exempt, you would change their
compensation so that they would be paid on a salary basis of at least the standard salary level.
You also represent that the coordinators exercise a high level of independent judgment and
discretion with regard to matters of significance.
GENERAL LEGAL PRINCIPLES
To qualify for either the professional or administrative exemption, with certain exceptions not
applicable here, an employee must be compensated on a salary or fee basis at no less than the
standard salary level. 29 C.F.R. §§ 541.200(a)(1), .300(a)(1). Both exemptions also require that
the employee have a certain primary duty. An employee’s primary duty is the principal, main,
major, or most important duty the employee performs. Determining which duties are the primary
ones depends on factors including the relative importance of the exempt versus nonexempt
duties, the amount of time spent performing exempt work, the employee’s relative freedom from
direct supervision, and how the employee’s salary compares to the wages paid to other
employees for the kind of nonexempt work performed by the employee. 29 C.F.R. § 541.700.
For an exempt learned professional, the primary duty must be performing work that requires
advanced knowledge, which is work that is predominantly intellectual in character and requires
the consistent exercise of discretion and judgment. The advanced knowledge must be in a field
of science or learning and customarily be acquired through a prolonged course of specialized
intellectual instruction. 29 C.F.R. § 541.301(a). However, the exemption “is also available to
employees in such professions who have substantially the same knowledge level and perform

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substantially the same work as the degreed employees, but who attained the advanced knowledge
through a combination of work experience and intellectual instruction.” 29 C.F.R. § 541.301(d).
An exempt administrative employee’s primary duty must satisfy three requirements. First, his or
her primary duty must be performing office or non-manual work. Second, it must include
exercising discretion and independent judgment with respect to matters of significance. Third,
the primary duty must directly relate to the management or general business operations of the
employer or the employer’s customers. 29 C.F.R. § 541.200(a)(2)–(3). The regulation describes
“work directly related to management or general business operations” in an illustrative list of
“work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance;
quality control; purchasing; procurement; advertising; marketing; research; safety and health;
personnel management; human resources; employee benefits; ... public relations; government
relations; ... [and] legal and regulatory compliance.” Id. § 541.201(b).
The FLSA’s exemptions, such as the administrative and professional exemptions, are “as much a
part of the FLSA’s purpose as the [minimum-wage] and overtime-pay requirement[s],” and,
therefore, must receive a “fair (rather than narrow) interpretation[.]” Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1142 (2018) (internal citations omitted). As a result, WHD interprets
exemptions to the Act according to conventional canons of statutory construction and neither
expansively nor narrowly.
OPINION
To qualify for the administrative exemption, each coordinator’s primary duty must relate to the
management or general business operations of the employer or the employer’s customers. 29
C.F.R. § 541.201(a). In this case, the employer is the county government. Thus, the work would
be directly related to management or general business operations of the employer if it relates to
assisting with the “running or servicing” of the county government itself. Id. As governments
exist to serve their citizens, we assume that the “customers” in this instance would be the
county’s residents.
A. Determining Which Duties are Exempt.
WHD has often found it useful to distinguish between “production” and “staff” functions when
evaluating whether job duties are exempt under the administrative exemption. See, e.g., 29
C.F.R. § 541.201(a); WHD Opinion Letter FLSA-1173, 1988 WL 1534556, at *2 (May 19,
1988); 69 FR 22122, 22140–42 (Apr. 23, 2004). This distinction can be more vexing to draw for
government positions because it is sometimes difficult to determine what a government is
“producing” for its citizens’ “consumption”; a t least one court has noted the “scarce authority ...
regarding what constitutes the general business operations of a [government].” O’Neill v. City of
Palo Alto, No. C-05-04515, 2007 WL 9733770, at *5 (N.D. Cal. May 4, 2007). As with other
occupations involving services rather than goods, we find it more useful in the government-
employment context to ask whether job duties involve, on the one hand, the day-to-day carrying

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out of the government’s functions or, on the other, running the government (or a component of
the government) itself or determining its overall course and policies.
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Applying this framework to the information you have provided, we conclude that some of the
coordinators’ duties appear to involve the government’s management and general business
operations; some involve the government’s day-to-day operations; and some will depend on the
circumstances of how and when those duties are exercised and precisely what those duties entail.
1. Planning and Business Management Duties.
Many of the coordinators’ duties involve planning for the county government’s general, rather
than day-to-day, operations, particularly regarding the continuity of the government’s operations
themselves—what you appear to describe as the government’s “resilience efforts.” This would
be exempt administrative work because it directly relates to the management or general business
operations of the employer or the employer’s customers.
The duty to organize disaster and emergency-management drills and review the results of those
drills to improve disaster and emergency-management response is a central part of that exempt
work, as are planning and furnishing emergency-management training to county personnel. The
same is true of composing reports and project plans about and for emergency-management
operations, particularly if they are how the officials charged with supervising and running the
county government receive information they use in their own governance and long-term
activities.
Some other duties would be exempt under certain circumstances. Maintaining and operating the
Emergency Operations and Recovery Coordination Centers would be exempt to the extent that
those are continuity-of-government and government-operations duties. Coordinating with
“County Emergency Support Function personnel when the Emergency Operations Center is
activated” would also be exempt assuming that this “activation” happens only in extraordinary
situations. Similarly, to the extent that the coordinators’ geographic information system mapping
support is used, for instance, to plan where and how to stage personnel and supplies in
anticipation of or in response to a disaster, it would be exempt. If that maintenance, operation,
support, and coordination involves the day-to-day furnishing of government services, however—
for instance, using the centers as dispatch centers to respond to law-enforcement or firefighting
calls, or using geographic information system skills to plot the locations of county work teams
and road or sewer repairs—they would be nonexempt. Likewise, the coordinators’ work on
alert, warning, and in-place sheltering procedures could be exempt or nonexempt depending on
whether it concerns the functioning of the government itself or the government’s day-to-day
obligation to furnish public-safety programs.

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See WHD Opinion Letter, 1997 WL 971811, at *2 (Sept. 12, 1997) (citing Bratt v. Cnty. of L.A., 912
F.2d 1066, 1070 (9th Cir. 1990)). See also Dalheim v. KDFW-TV, 918 F.2d 1220, 1230–31 (5th Cir.
1990) (affirming that administrative exemption did not apply to plaintiffs who carried out day-to-day
functions of producing newscasts rather than, for instance, “setting business policy [or] planning the long-
or short-term objectives of the news department”).

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Finally, one of the coordinators’ duties is “assisting schools, organizations, and industries with
emergency operations plans.” Continuance-of-operation functions are general business
operations, and the coordinators’ work on those functions for “customers” of the county
government is exempt. 29 C.F.R. § 541.201(c).
2. Government R elations Duties.
Many of the duties also involve handling the county’s relationships with other governments and
government entities. You specifically mention “coordinat[ing] activities of large and diverse
agencies,” including local agencies; “coordinating community resources”; and “requesting
assistance as needed.” If these agencies, resources, and assisters are federal, state, municipal,
and other local and county governments, then these are government-relations duties within the
county’s general, rather than day-to-day, operations and are exempt. 29 C.F.R. § 541.201(b). If
they are instead different branches of the county government, they would be considered as
discussed above, since communications between different branches of the same government are
not “government relations” as the term is used in WHD’s regulations.
3. Public-Facing Duties.
Preparing news releases, acting as a press officer, and furnishing information to the media are
public-relations duties related to the county’s general, rather than day-to-day, operations and are
exempt. 29 C.F.R. § 541.201(b) ; s ee Copas v. E. Bay Mun. Util. Dist., 61 F. Supp. 2d 1017,
1023–26 (N.D. Cal. 1999).
The coordinators’ educational duties might be exempt. As the coordinators’ duties include
“preparing and distributing disaster-preparedness material,” “community outreach,” and “giving
presentations to community organizations,” it appears, much as many fire departments’ missions
have expanded from firefighting to include fire prevention, that the emergency-management
department’s public-safety mission includes preventive education rather than simply emergency
response. If so, delivering educational lectures, materials, and presentations would be day-to-day
work and would be nonexempt. Depending on the particular work involved, preparing those
materials might be exempt administrative work—“preparing” that creates or develops original
materials or presentations or evaluates and recommends materials or programs based on
community needs would more likely be exempt planning work, as opposed to “preparing” that
merely assembles already-available materials into a display or distributable folder. See Kohl v.
The Woodlands Fire Dept., 440 F. Supp. 2d 626, 639–40 (S.D. Tex. 2006). And if “community
outreach” is information-gathering on the needs of different stakeholders and how to integrate
those needs into the county’s emergency-management operations—rather than a phrase
describing the delivery of educational materials and presentations—that would be exempt
planning work. See id.; Copas, 61 F. Supp. 2d at 1031–33.
The coordinators’ participation “in various committees and boards related to program activities
and responsibilities” might be exempt if they are doing so to represent the county—if they are
acting “very much like [an] ambassador,” presenting the county government’s positions and
concerns and reporting back to the county government on the proceedings of those other bodies.
See Dambreville v. City of Boston, 945 F. Supp. 384, 391–93 (D. Mass. 1996). However, if their
duty on those bodies is more clerical than representative—if their duties, for instance, are more

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like furnishing public presentations or acting as a courier or messenger between the county
government and the other body—they would less likely be exempt.
4. Volunteer and Grant Writing Duties.
The coordinators’ duties to recruit, supervise, and schedule volunteers are exempt personnel-
management tasks. See 29 C.F.R. § 541.201(b) (listing “personnel management” as an example
of exempt work). Their duties to write and review grant proposals are exempt budget and
finance tasks. Id.; see also WHD Opinion Letter FLSA2005-43, 2005 WL 3308614, at *2 (Oct.
24, 2005).
B. Primary Duty.
Whether a coordinator qualifies for the administrative exemption depends upon which of these
many duties is the primary duty—the principal, main, major, or most important duty the
coordinator performs. 29 C.F.R. § 541.700(a). Because we have only a list of duties, we do not
have the information necessary to opine on which of them is the primary one.
C. Discretion and Independent Judgment on Matters of Significance.
Finally, we did not analyze whether the coordinators exercise discretion and independent
judgment on matters of significance to the county government because you represented that they
do so. The management-and-operations evaluation we undertook looks only at the type of work
the coordinators perform. See 29 C.F.R. § 541.201. The discretion-and-judgment evaluation,
which is equally necessary to determine whether the administrative exemption applies, looks to
the scope of the coordinators’ work and the manner in which they perform it. See 29 C.F.R.
§ 541.202. The conclusion that certain duties may be exempt is not a comment on or opinion
regarding whether the duties as the coordinators actually perform them involve the exercise of
discretion and independent judgment on matters of significance.
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CONCLUSION
For these reasons, we conclude that the coordinators, depending on which duty is their primary
duty, may be exempt administrative employees.
This letter is an official interpretation by the Administrator of WHD for purposes of the Portal-to-
Portal Act. See 29 U.S.C. § 259. This interpretation may be relied upon in accordance with section
10 of the Portal-to-Portal Act, notwithstanding that after any such act or omission in the course of
such reliance, the interpretation is “modified or rescinded or is determined by judicial authority to
be invalid or of no legal effect.” Id.

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Based on the information provided, we cannot determine whether the coordinator position qualifies for
the learned professional exemption.

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We trust that this letter responds to your inquiry.
Sincerely,

Cheryl M. Stanton
Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b)(7).