                                  ___________

                              Nos. 96-1646/1777
                                 ___________

Kevin D. Christian; Brian            *
Helland; Larry Kipping,              *
                                     *
      Appellees/                     *
      Cross-Appellants,              *
                                     * Appeals from the United States
      v.                             * District Court for the Western
                                     * District of Missouri.
The City of Gladstone,               *
Missouri,                            *
                                     *
      Appellant/Cross-Appellee.      *
                                     *
________________________             *
                                     *
The Missouri Municipal               *
League,                              *
                                     *
      Amicus Curiae.                 *
                                ___________

                      Submitted:     December 11, 1996

                         Filed:   March 17, 1997
                                   ___________

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District     Judge.
                               ___________

MURPHY, Circuit Judge.


     The City of Gladstone appeals from a judgment awarding backpay and
attorney fees to three public safety officer paramedics who cross-appeal
the amount of their award.   The paramedics claim that under § 207(a) of the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, they are entitled
to overtime pay for any hours worked in excess of forty hours each week.
The City argues that the FLSA




     1
      The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota, sitting by designation.

                                      -1-
does not require overtime pay for the paramedics because they fit within
a statutory exception under § 207(k) for employees in fire protection
activities.      The   district   court   granted    summary   judgment   for   the
paramedics, concluding that the City had not established the partial
overtime exception, but awarding them less overtime pay than they sought.
We reverse.


        The parties have stipulated the facts.      The City has created a Public
Safety Department to unify the emergency response for fires, medical
emergencies, and police calls, as well as the administrative support for
those     services.    The   Department      is   divided   into   four   bureaus:
administrative, support services, law enforcement, and fire/emergency
medical services (fire/ems).      Employees in the law enforcement and fire/ems
bureaus are cross-trained so that they may respond to a variety of
emergency situations.     The fire/ems bureau employs sixteen public safety
officers who are trained and certified as firefighters, seven of whom are
also cross-trained as paramedics.


        The paramedics in the fire/ems bureau respond to fire alarms,
accident scenes, and medical emergencies.         They are available to respond
to all fire calls, and they are dispatched to approximately 50% of total
fire alarms each year, including since 1992 all fire alarms where a fire
is confirmed and some still alarms where the cause of the alarm is unknown.
They are responsible for fighting fires when they arrive at the scene, but
they leave when they can in order to be available for other calls.              Fire
alarms make up about 11% of their calls, car accidents about 9%, and the
remaining calls are other accidents and medical emergencies.


        Because the work involves considerable time waiting for calls, the
City uses a scheduling system of rotating shifts in the fire/ems bureau.
The public safety officers and paramedics are on duty 24 hours and then
have 48 hours off, working a total of nine days in a twenty-seven day
period.    This scheduling permits the




                                       -2-
employees of the fire/ems bureau to eat, relax, and sleep while waiting for
calls, as well as to perform other necessary support services such as
training and maintaining equipment.


     Three of the seven paramedics in the fire/ems bureau sued the City,
alleging that the City failed to pay them overtime for hours worked in
excess of forty hours each week.     The City contended that under § 207(k)
it was not required to pay overtime based on a forty hour workweek because
the paramedics were employees in fire protection activities and were thus
permitted to work 212 hours in a 28 day period before being entitled to
overtime.    The district court concluded that although the paramedics were
engaged     in fire protection activities, they did not fall under the
exception because they spent more than 20% of their time on activities
unrelated to fire calls.


                                      I.


     The first issue raised on appeal is whether the district court erred
in concluding that the paramedics were employees in fire protection
activities as defined in § 207(k).   The paramedics argue that they are not
because they do not respond to all still alarms, spend less time on fire
calls than medical calls, and attend to more medical emergencies than fire
alarms or car accidents.    The City counters that the paramedics are fire
protection employees because they are responsible for fighting fires and
their paramedic activities are substantially related to firefighting.     A
grant of summary judgment is reviewed de novo.   Crawford v. Runyon, 37 F.3d
1338, 1340 (8th Cir. 1994).


     The FLSA generally requires employers to pay employees overtime
compensation for any hours worked in excess of forty hours each week.    29
U.S.C. § 207(a).   Because the nature of emergency service work does not fit
the normal pattern of forty hour workweeks, Congress enacted § 207(k).
This section provides a




                                     -3-
partial overtime pay exception for "any employee in fire protection
activities or any employee in law enforcement activities" and permits them
to work a total of 212 hours during a work period of 28 days before being
entitled to overtime compensation.          S. Rep. No. 93-690, at 24 (1974); see
S. Rep. No. 99-159, at 5 (1985).       This allows the use of rotating schedules
where employees work 24 hours and then have 48 hours off.


        The statutory section creating a partial overtime exception does not
itself define what is meant by "employee in fire protection activities,"
but the related regulations provide a definition.            The term includes


        any 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. . . .The term
        would also include rescue and ambulance service personnel if
        such personnel form an integral part of the public agency's
        fire protection activities. See s 553.215.



29 C.F.R. § 553.210(a).


        The district court concluded the paramedics did not meet the four-
part test because the City had not established that the paramedics have the
legal    duty   and   responsibility   to    fight   fires   or   that   they   perform
activities concerned with fire suppression and prevention.               It went on to
consider the additional definition in the regulations which states that the
section includes “rescue and ambulance service personnel if such personnel
form an integral part of the public agency's fire protection activities."
The City




                                        -4-
argues that the paramedics meet the four-part test, but the paramedics
respond that fighting fires is not their primary duty.


        The paramedics concede they meet the first two parts of the test in
§ 553.210(a): they are employed by an organized fire department and have
been certified by the state of Missouri to fight fires.                 The stipulated
facts    also   show   that    the   paramedics    have   the   legal   authority   and
responsibility to fight fires (part three) and that they perform activities
required for firefighting (part four).            They are thus employees “in fire
protection activities.”


        A central consideration under the test is whether an employee
actually fights fires.        See Carlson v. City of Minneapolis, 925 F.2d 264,
265 (8th Cir. 1991) (per curiam) (arson investigators who did not fight or
extinguish fires not fire protection employees under four-part test).
Paramedics who are not permitted to fight fires or enter a burning building
and who are only dispatched to fires to treat injured individuals are not
engaged in fire protection activities under the four-part test.              Nalley v.
Baltimore, 796 F. Supp. 194, 200 (D. Md. 1992).             The paramedics here are
sworn firefighters, however, and they respond to every fire alarm where a
fire has been confirmed, as well as some alarms where a fire has not been
confirmed, amounting to approximately 50% of all fire alarms each year.
They fight fires at those alarms, constitute over 40% of the public safety
officers in the fire/ems bureau and on each shift, and perform fire
protection support services such as equipment maintenance and training.
The four-part test has no requirement that firefighting be the employees’
only or primary duty, and the fact that the paramedics are also able to
provide medical services while at fires and elsewhere does not eliminate
their responsibility for firefighting.            These paramedics are employees in
fire protection activities under the four-part test in § 553.210(a), and
whether they fit within the statutory exception under any alternative test
does not therefore need to be




                                          -5-
considered.2
                                      II.


     Another   section   of   the   regulations   specifically   provides   that
employees engaged in firefighting may also do a certain amount of other
work and remain within the statutory exception to overtime pay, but if more
than 20% of the work is in "nonexempt activities" the employees may be


     2
      Since the district court found that the four-part test was
not met, it went on to consider whether the paramedics were an
integral part of the fire/ems bureau. The "integral part"
definition in § 553.210(a) is cross-referenced to § 553.215(a) of
the regulations. The latter section provides that ambulance and
rescue personnel who are “substantially related to firefighting”
are included within the exception, and the district court used
the factors outlined in that section to determine whether the
paramedics fit within the exception. See Alex v. City of
Chicago, 29 F.3d 1235, 1241 (7th Cir. 1994) (factors in §
553.215(a) provide the additional method by which paramedics who
do not meet the four-part test may still come within the
exception); but see O'Neal v. Barrow County Bd. of Comm'rs, 980
F.2d 674, 676-77 (11th Cir. 1993) (“integral part” test of §
553.210(a) applies to employees of a public agency that engages
in fire protection; “substantially related” test of § 553.215(a)
applies to employees who are not within such an agency; exception
can be established under either).

     Section 553.215(a) provides two factors for ambulance and
rescue service employees to be "substantially related" to
firefighting: they must be “train[ed] in rescue” and "regularly
dispatched to fires, crime scenes, riots, natural disasters and
accidents." 29 C.F.R. § 553.215(a). The paramedics here concede
that they are trained in rescue, and the stipulated facts
establish that they are regularly dispatched. They respond to
every alarm where a fire has been confirmed as well as to some
still alarms, amounting to approximately 50% of all fire calls
received in the fire/ems bureau each year, and are frequently
dispatched to accident scenes and other medical emergencies. See
Bond v. City of Jackson, 939 F.2d 285, 288 (5th Cir. 1991)
(personnel are regularly dispatched if they respond to accidents
and co-respond with the fire department to over 90% of emergency
medical service calls). Unrelated activities, such as patient
transfers, do not make these paramedics unavailable for dispatch.
See Spires v. Ben Hill County, 980 F.2d 683, 689 (11th Cir.
1993). The paramedics would therefore also fall within the §
207(k) exception under the factors set forth in § 553.215(a).

                                      -6-
entitled to overtime.   29 C.F.R. § 553.212(a).




                                   -7-
Section 553.212(a) states that:


     Employees engaged in fire protection or law enforcement
     activities as described in § 553.210 and 553.211, may also
     engage in some nonexempt work which is not performed as an
     incident to or in conjunction with their fire protection or law
     enforcement activities. . . . 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 or law
     enforcement activities for purposes of this part.



29 C.F.R. § 553.212(a).   Nonexempt work is not defined, but the regulation
gives an example of such work as "firefighters who work for forest
conservation agencies . . . and plant trees” during slack periods.                This
example is far removed from the type of activities the stipulated facts
show the paramedics perform in this case.


     The    district   court   applied    §    553.212   and   concluded   that   the
paramedics did not fall under the overtime exception because it believed
that over 20% of their work time involved activities unrelated to fire
calls.    The court examined the paramedics' typical day and classified each
activity as exempt or nonexempt.    It concluded that time spent waiting for
calls, responding to fires and car accidents and completing associated
paperwork, maintaining vehicles, and doing support tasks such as mail
delivery and laundry services was related to fire protection and thus
exempt.    Time spent responding to, returning from, or completing paperwork
on medical calls or accidents other than car accidents, and time spent
devoted to emergency medical training or study related to emergency medical
services was considered unrelated to fire protection and nonexempt.                By
this calculation, nonexempt work took up five hours and thirty-six minutes
of the typical 24 hour day, exceeding the 20% limitation in § 553.212(a).
The district court concluded that the paramedics were therefore entitled
to receive overtime compensation based on a forty hour workweek.




                                         -8-
        The City argues it was error to consider time spent on accident and
emergency medical calls other than fires or car accidents as nonexempt
work.     The paramedics contend that such time was properly counted as
nonexempt because it is not related to fire protection activities.


        Courts which have considered the meaning of nonexempt work in §
553.212 focus on how a particular task relates to firefighting.                 One
approach considers whether the work "is distinct from and unrelated to fire
protection    activities"      and   whether   "the   essential   nature   of   the
firefighter's job changes and he is required to perform tasks unrelated to
his job."    Schmidt v. County of Prince William, 929 F.2d 986, 990 (4th Cir.
1991) (en banc) (internal quotations omitted).             Under this approach,
firefighters who spend all their time dispatching are engaged in exempt
work and fit within the overtime exception even though the regulations
specifically exclude civilian employees who perform such work from the
exception.    Id. at 989-90.    Another approach defines nonexempt work broadly
as any work that "generally inures to the benefit of the employer . . .
which the employer requires its employees to do while they are not engaged
in activities related to their fire protection or law enforcement duties."
O'Neal, 980 F.2d at 681.    Courts adopting this approach have indicated that
to be related to fire protection duties and exempt, the work must stem from
a fire call or car accident.            Under this approach, calls involving
paramedic services related only to medical emergencies would be nonexempt.
Id.
        The better approach is that adopted by the Fourth Circuit in Schmidt
because it fits the broad language used by Congress in extending the
overtime exception to "any employee in fire protection activities."             The
legislative history indicates that Congress recognized that employees in
fire protection and law enforcement activities regularly work more than
forty hours each week, but believed "the actual impact on State and local




                                        -9-
governments . . . of a 40 hour standard will be virtually nonexistent"
because of the overtime exception in § 207(k).                H.R. Rep. No. 93-913
(1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2838; see also S. Rep. No. 93-
690, at 24 (1974).    It also shows an intent to include paramedic and rescue
work that is substantially related to fire protection within the term of
"fire protection activities" in § 207(k):              "[The statutory exception] is
intended to cover those employees directly employed by a public agency who
are engaged in rescue or ambulance activities which are substantially
related to fire protection or law enforcement activities."              120 Cong. Rec.
8598 (1974); see also Justice v. Metropolitan Gov’t of Nashville, 4 F.3d
1387, 1395-96 & n.2 (6th Cir. 1993) (discussing legislative intent behind
exemption; Horan v. King County, 740 F. Supp. 1471, 1475-78 & n.3 (W.D.
Wash. 1990) (same).       Based on this legislative history, every circuit which
has considered the issue has concluded that ambulance and rescue service
personnel could thus be within the term “employee in fire protection
activities.”   See, e.g., Alex, 29 F.3d at 1239 (7th Cir.); Justice, 4 F.3d
at 1393 (6th Cir.); O’Neal, 980 F.2d at 677 (11th Cir.); Bond, 939 F.2d at
288 (5th Cir.).
      This approach also conforms with the application of the related
regulations interpreting § 207(k) by the Department of Labor.                       The
Department has recognized that emergency medical services personnel respond
to a variety of emergency calls, but in interpreting how to apply its
regulations defining “employee in fire protection activities,” it has not
taken the position that only time spent by rescue and ambulance personnel
on calls stemming from fires or car accidents is related to fire protection
activities for purposes of the overtime exception.                See, e.g., DOL, Wage
& Hour Div., Ltr. Rul. (Jan. 9, 1992) (no requirement of a breakdown of
calls stemming from fires, car accidents, and other emergencies); DOL, Wage
&   Hour   Div.,   Ltr.    Rul.   (Oct.   9,   1987)    (same).      The   Department’s
interpretation of its regulations is not “plainly erroneous or inconsistent
with the regulation” and can be




                                          -10-
controlling as long as it complies with the limits of the statute.    Auer
v. Robbins, 1997 WL 65558, at *6 (U.S. 1997).


     Section 553.212 does not require overtime for employees in fire
protection activities who spend their day in exempt activities related to
fire protection.   See Schmidt, 929 F.2d at 990 ("[Dispatching] is clearly
related to firefighting, and the 20% limitation simply has no application
to this case."); see also Bond, 939 F.2d 285 (no application of 20%
limitation when paramedics are substantially related to fire protection and
spend day co-responding with the fire and police departments).   Here, the
stipulated facts show that the paramedics respond to fires, fight them, and
provide paramedic services at those fires, as well as on 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.


                                    III.


     Since the City established that the paramedics are employees engaged
in fire protection activities, the § 207(k) partial exception to the
overtime pay requirement applies.    The paramedics were not entitled to
summary judgment, and we reverse and remand for entry of judgment in favor
of the City.    The City's appeal regarding the amount of attorney fees
awarded and the cross-appeal claiming entitlement to more overtime pay than
awarded are dismissed as moot.




                                    -11-
A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                            -12-
