Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—D. Ariz.: Sheriff denied decertification of collective alleging patrol lieutenants improperly classified as exempt, (Jul 29, 2026)

By Ronald Miller, J.D.

The lieutenants consistently testified that they were required to respond to all high-level patrol calls and report as first responders in the field for all such calls, and that this duty takes priority over any administrative tasks patrol lieutenants have.

An employer was not entitled to decertification of a collective alleging that it improperly classified patrol lieutenants as exempt managers, a federal district court found. Patrol lieutenants perform certain managerial and administrative duties, but they must also respond to certain emergency calls. Here, the court found that the patrol lieutenants presented substantial evidence of their similarity. They consistently testified that they were required to respond to all high-level patrol calls and report as first responders in the field for all such calls, and that this duty takes priority over any administrative tasks they have. Moreover, the court determined that the employer’s contention that patrol lieutenants assumed a managerial, as opposed to first-response, role when responding to high-level patrol calls was not enough to defeat certification (Houck v. Maricopa County, No. CV-23-00068-PHX-DGC (D. Ariz. July 24, 2026)).

Exempt classification. Employees in this collective action claim the employer, Maricopa County, violated the FLSA by improperly classifying patrol lieutenants of the Sheriff’s Office as exempt managers. The named plaintiff has been employed by the Maricopa County Sheriff’s Office since February 2007. On April 4, 2022, he was promoted to patrol lieutenant and remains in that position.

The Sheriff’s Office classifies patrol lieutenants as exempt managers under the FLSA. Patrol lieutenants are paid a salary on an hourly basis and are required to account for at least 80 hours every two weeks. Patrol lieutenants are not paid for hours worked beyond 80.

Patrol lieutenants perform certain managerial and administrative duties, and they must also respond to certain emergency calls. According to the named plaintiff, patrol lieutenants perform the primary duty of first response, which qualifies them as non-exempt under 29 C.F.R. § 541.3(b)(1). The court granted the employee’s motion for conditional certification under 29 U.S.C. § 216(b).

Exemption. To qualify as exempt, “an employee’s ‘primary duty’ must be the performance of exempt work.” “The term ‘primary duty’ means the principal, main, major or most important duty that the employee performs.” “[T]he major emphasis [is] on the character of the employee’s job as a whole,” but factors to consider include (1) “the relative importance of the exempt duties” compared to the employee’s other duties, (2) the time spent performing exempt work, (3) “the employee’s relative freedom from direct supervision,” and (4) “the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.”

First Responder Regulation. Under the First Responder Regulation, 29 C.F.R. § 541.3, FLSA exemptions “do not apply to police officers” and “similar employees” when first response is their primary duty, “regardless of rank or pay level[.]” First response duties include “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,” and “interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.”

Decertification. A defendant may seek decertification of the collective action “for failure to satisfy the ‘similarly situated’ requirement in light of the evidence produced to that point.” To maintain the collective action, the court must find “substantial evidence” of similarity.

Here, the employer argued that the employees’ disparate testimony regarding their job duties showed they were not similarly situated. For their part, the employees argued that they all have the duty of responding to high-level patrol calls and prioritizing those calls over their other duties, rendering them first responders.

The court found that the employees presented substantial evidence of their similarity. They consistently testified in their depositions that they are required to respond to all high-level patrol calls and report as first responders in the field for all such calls, and that this duty takes priority over any administrative tasks patrol lieutenants have. All patrol lieutenants must (1) be uniformed at all times, (2) log into the CAD system at the start of their shift to ensure dispatch is aware they are available for calls, and (3) monitor the radio to ensure they are alerted to calls. Further, they are subject to discipline for failure to respond to high-level patrol calls.

The court noted that because these material facts are the same for all patrol lieutenants, they are alike with regard to some material aspect, such that the “similarly situated” requirement for a collective action was satisfied.

On the other hand, the employer contended that other testimony showed that patrol lieutenants assumed a managerial as opposed to first response role when responding to high-level patrol calls. However, the court determined that this argument was not enough to defeat certification of the collective.

Primary duty. The employer argues that the “primary duty” question “requires individualized analysis,” and there was too much variation in the material facts to find the patrol lieutenants similarly situated. According to the employer, there was a wide variation among patrol lieutenants with regard to their duty assignments because they are transferred between different districts. However, the court observed that these factual dissimilarities do not defeat collective treatment where the plaintiffs are alike on “some material aspect of their litigation.”

The patrol lieutenants argued that their “primary duty” was to act as a first responder. It was undisputed that they respond to high-level patrol calls, and in preparation for those calls they must be in uniform, must wear cameras and body armor, must monitor all dispatch traffic throughout the day, and must drop everything else and respond when a high-level call comes in.

For its part, the employer focused on the fact that “[w]hen a patrol district’s Captain/Commander is unavailable, a Patrol Lieutenant will fill the role as the patrol district’s ‘acting commander’ or ‘acting captain,[’] who becomes the highest-ranking individual in the patrol district,” and that “Patrol lieutenants who work the night shift are referred to as the ‘watch commander’ and are the highest-ranking individual during that shift for Patrol Bureau East or West, and at times for the entire County.”

Additionally, the employer argued that patrol lieutenants “make recommendations as to hiring and promotion decisions,” and that they have the authority to take various disciplinary actions. The parties disagreed on the relative importance of various other duties of patrol lieutenants, including supervising other employees, making annual performance evaluations, and budgeting, training, and conducting special projects. There was a factual dispute regarding the relationship between the salaries of patrol lieutenants and sergeants.

Because the parties disagreed on the facts relevant to the primary duty inquiry, the court concluded that a jury must resolve these factual disputes. Accordingly, the court could not grant summary judgment for either side on the question of whether exempt work or first response is the patrol lieutenants’ primary duty.

Unrecorded overtime. The employer argued that the patrol lieutenants cannot seek damages for unrecorded hours because both exempt and non-exempt Sheriff’s Office employees are instructed “to accurately record all hours worked in [MCSO] timekeeping systems[.]” The court noted that there was record evidence that the patrol lieutenants were required to work more than 40 hours per week. Because they were classified as exempt and were not paid for hours above 40 per week, it served no purpose for them to log into the employer’s timekeeping system and record extra hours. Thus, the employees may prove the amount of their overtime work by other means, the court concluded. The employees can recover damages for hours worked that were not logged in the employer’s timekeeping system provided they meet their burden of proof.

Employer willfulness. Both parties moved for summary judgment on whether the employer acted willfully. Whether a violation is willful, however, cannot be determined before the violation is established, noted the court. Because the fact of a violation has not been determined in this case, the court declined to rule on the willfulness of that violation by summary judgment.

Accordingly, the court denied the employer’s motion for decertification of the collective.

The case is No. CV-23-00068-PHX-DGC.

Judge: Campbell, D.

Attorneys: Patricia N. Syverson (Frankel Syverson) for Christopher J. Houck. David G. Myers (Fisher Phillips) for County of Maricopa.

Companies: Maricopa County

Cases: WageHour ClassActions Exemptions Overtime RemediesDamages EvidenceDiscovery ArizonaNews