Labor & Employment – Public Employees – Sovereign Immunity – Employment Contracts – ‘Professional’ – FLSA – Overtime – Administrative Remedies

Brown v. North Carolina Department of Environment & Natural Resources (Lawyers Weekly No. 11-07-0551, 20 pp.) (Wanda G. Bryant, J.) Appealed from Wake County Superior Court. (Henry W. Hight Jr., J.) N.C. App. Click here for the full-text opinion.

Holding: Where G.S. § 113-56.1 confers rights to overtime compensation on state foresters, the state has waived its sovereign immunity as to a lawsuit by state foresters to recover such compensation.

We reverse the trial court’s dismissal of plaintiffs’ claim for overtime compensation.

Plaintiffs allege that each plaintiff and putative class member “has been employed as a forester in the Division of Forest Resources (DFR), a division of NCDENR, and in this capacity, each plaintiff is and/or has been an ‘employee’ of defendants, within the meaning of N.C.G.S. § 113-56.1, and the FLSA, 29 U.S.C.  § 203(e).”

G.S. § 113-56.1 provides for overtime compensation: “The Department [of Environment and Natural Resources] shall, within funds appropriated to the

Department, provide overtime compensation to the professional employees of the Division of Forest Resources involved in fighting forest fires.”

By the use of the word “shall” the statute unambiguously provides a right to overtime compensation. By enacting this statute, the legislature has waived sovereign immunity as to those employees referred to in the statute.

Having availed itself of the services of the professional employees of the Division of Forest Resources, the state is now prohibited from using sovereign immunity as a defense to its contractual commitment. Accordingly, we reverse the trial court‘s dismissal of plaintiffs’ claim for lack of jurisdiction based on sovereign immunity.

Learned Professionals Exemption

Plaintiffs alleged they were “professional employees” within the meaning of § 113-56.1. By doing so, they did not also allege that they were members of a “learned profession” and thus exempt from the overtime compensation provisions of the FLSA.

Furthermore, the learned professionals exemption does not apply to “fire fighters … and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type….” 29 C.F.R. § 541.3(b)(1).

Plaintiffs’ allegations are sufficient to show that the FLSA exemption for professionals does not apply to them.

Whether plaintiffs are exempt from the provisions of the FLSA for being bona fide executive, administrative, or professionals under 29 U.S.C. § 213(a)(1) is primarily a question of fact. We cannot hold that plaintiffs fall within the exemption as a matter of law.

Administrative Remedies

G.S. § 143-300.35(a) provides, “The sovereign immunity of the State is waived for the limited purpose of allowing State employees, except for those in exempt policy-making positions designated pursuant to [G.S. § 126-5(d), to maintain lawsuits in State and federal courts and obtain and satisfy judgments against the State or any of its departments, institutions, or agencies under:

(1) The Fair Labor Standards Act, 29 U.S.C. § 201, et seq….”

This statute clearly permits plaintiffs to maintain a civil action in the state judicial system to enforce their rights under the FLSA. Plaintiffs are entitled to pursue an FLSA claim in a judicial forum rather than being required to exhaust the administrative remedy made available by G.S. § 126-34.1(a)(11)a.

Reversed.