Adair v. City of Kirkland, 98-35019

Citation185 F.3d 1055
Decision Date06 August 1999
Docket NumberNo. 98-35019,98-35019
Parties(9th Cir. 1999) WAYNE ADAIR; MICHAEL J. ALLEN;ROBERT BALKEMA; MICHAELBREWER; REX D. CALDWELL; DONALD J. CARROLL; DAVID M.CRANDALL; GARY M. EGGLESTON,Jr.; PATRICK H. GALLAGHER; BRADLEY L. GILMORE; PHILLIP G.GOGGUIEN; DONALD T. HALGREN;JOHN HASLIP; JOHN E. HERRLING;BRUCE HOWELL; BERNARD A.KAOPUIKI; JACK KEESEE, Jr.;KEVIN D. KEYES; JAMES B.KISSINGER; RICHARD A. KREBS;CHARLES E. LACKEY; WILLIAM H.LAURENSON; DONALD E. LOUSBERG;BRYAN McNAGHTEN; MICHAEL J.MURRAY; ERIC OLSEN; ALLANO'NEILL; STEVEN OSKIERKO;KEVIN M. OUIMET; CHARLES L.PRIERCE; SEAN T. RILEY;SCOTT A.S. ROBERTSON; RANDY F.ROGERS; DONNA E. RORVIK; RICHARD N. SEIBERT; DUANE STEWARD; BENEDICT L. SUMAOANG; ICHAEL J. URSINO; TERRY S. WHALEN; JAMES P. HERRING; and all other similarly situated employees,Plaintiffs-Appellants, v. CITY OF KIRKLAND, a Municipal corporation, Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Alex J. Skalbania, Cline & Emmal, Seattle, Washington, argued for the plaintiffs-appellants.

James M. Cline, Cline & Emmal, Seattle, Washington, on the brief for the plaintiffs-appellants.

Charles E. Eberhardt, Perkins Coie, Bellevue, Washington, argued and on the brief for the defendant-appellee. Paul E. Smith Perkins Coie LLp, Bellevue, Washington, DC, on the brief for the defendant appellee.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, Chief Judge, Presiding. D.C. No. CV-96-1508R.

Before: Pamela Ann Rymer and Andrew J. Kleinfeld, Circuit Judges, and Irma E. Gonzalez,* District Judge.

ORDER

The opinion filed April 30, 1999, is withdrawn, and the attached opinion is substituted therefor. The appellants' petition for rehearing is DENIED.

OPINION

GONZALEZ, Judge:

Thirty-eight current and former police officers ("the officers") employed by the City of Kirkland ("the City") sued the City under the Fair Labor Standards Act ("FLSA"). The officers claim that the City owes them compensation for ten- minute briefings they are required to attend before their regularly-scheduled shifts.

The officers appeal from the district court's decision rejecting their FLSA arguments and granting the City's motion for partial summary judgment. We affirm in part and reverse in part.

I.

The officers work four twelve-hour shifts every eight days. The City requires the officers to attend ten-minute briefings before each of these shifts. The briefings cover new policies and procedures, events that occurred on recent shifts, job and vehicle assignments, and similar matters.

The officers are paid a set salary by the City, but the parties disagree over whether the salary includes compensation for the briefings. The terms of the salary are defined by the collective bargaining agreement ("CBA") entered into by the parties. Versions of the CBA in effect from 1989 to 1997 provide that overtime is due whenever an officer is required to work more than seven minutes beyond her "normal work day" and specify that overtime is payable in seven-minute increments. The CBA does not define the "normal work day," but it refers to "twelve-hour shifts."

The officers did not complain about having to attend the pre-shift briefings until December 1992, when the Kirkland Police Guild president wrote to a City employee to protest the briefings, arguing that the officers' salaries did not compensate them for attending the briefings. There was apparently no response to this letter, and the parties did nothing to clarify the matter when they negotiated a new CBA in 1995.

In September 1996, the officers filed suit against the City, seeking compensation for the ten-minute briefings under the Fair Labor Standards Act ("FLSA") and the Washington Minimum Wage Act.1 The officers claimed that the City violated the FLSA by not paying them overtime for the briefings and by generally not compensating them for the briefings. The City moved for partial summary judgment on these claims. On October 24, 1997, the district court granted the City's motion and denied the officers' cross-motion for partial summary judgment.

The district court found that while the ten-minute briefings were compensable work time, attendance at the briefings was compensated through the officers' salary. The court then found that the City had complied with the FLSA. Because the salary, when averaged across the total actual number of hours worked, still paid more per hour than the minimum wage, the court found that the City complied with the FLSA's minimum wage requirements. The court rejected the officers' overtime argument by finding that the City qualified for a limited "7(k) exemption" from the FLSA's normal overtime provisions.

The district court's ruling defeated most of the officers' claims, and they subsequently settled their remaining claims with the City. This appeal followed. We have jurisdiction of this matter pursuant to 28 U.S.C. S 1291. We review a grant of partial summary judgment de novo. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994) ("An appellate court's review is governed by the same standard used by trial courts under Federal Rule of Civil Procedure 56(c).").

II.

The FLSA, 29 U.S.C. S 201 et seq., was enacted "to protect all covered workers from substandard wages and oppressive working hours." Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). In 1985, the Supreme Court overruled its opinion in National League of Cities v. Usery, 426 U.S. 833 (1976), to hold that the FLSA applies to state and municipal employers. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-57 (1985); see also Fair Labor Standards Amendments of Nov. 13, 1985, Pub. L. No. 99-150, 99 Stat. 787 (1985), cited in Lamon v. City of Shawnee, 972 F.2d 1145, 1150 (10th Cir. 1992) ("Because of the difficulty posed to state and local employers by the sudden resurrection of the Act, Congress delayed until April 15, 1986 the Act's application to state and local governments.").

The FLSA's minimum wage and overtime provisions are central among the protections the Act affords to workers. Section 6 of the FLSA mandates payment of a minimum wage and section 7 sets maximum hours ("the overtime limit"), which, when exceeded, requires the payment of overtime wages. See 29 U.S.C. SS 206, 207. Violations of either of these sections may lead to the recovery of "the amount of . . . unpaid minimum wages, or . . . unpaid overtime compensation," together with "an additional equal amount as liquidated damages." Id., S 216(b); see also id., S 260 (allowing the court to forego an award of liquidated damages where the employer acted in good faith).

The officers make alternative FLSA claims. First, they argue that the pre-shift briefings were overtime under the FLSA for which they were not properly compensated. Second, they argue that even if the pre-shift briefings were not overtime, they constituted work for which the officers were never compensated, thus allowing them to maintain an action under the FLSA to recover unpaid wages.

A.

The overtime limit under section 7 of the FLSA is forty hours per week; work done in excess of forty hours must be compensated at a rate at least one-and-a-half times the regular work rate. See 29 U.S.C. S 207(a)(1). See generally Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945) ("[T]he regular rate refers to the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed."); 29 C.F.R. S 778.107 ("If the employee's regular rate of pay is higher than the statutory minimum, his overtime compensation must be computed at a rate not less than one and one-half times such higher rate."). Section 7(k) offers a limited exemption from the overtime limit to public employers of law enforcement personnel or firefighters.2 See id.,S 207(k). The "7(k) exemption" increases the overtime limit slightly and it gives the employer greater flexibility to select the work period over which the overtime limit will be calculated. See 29 C.F.R. S 553.230 ("For those employees engaged in law enforcement activities . . . who have a work period of at least 7 but less than 28 consecutive days, no overtime compensation is required under section 7(k) until the number of hours worked exceeds the number of hours which bears the same relationship to 171 as the number of days in the work period bears to 28."). Under Department of Labor ("DOL") regulations, if the employer selects a seven-day work period, overtime begins to accrue after forty-three hours, and if an employer selects an eight-day work period, overtime begins to accrue after forty-nine hours. See id.

Both parties agree that the City is eligible for a section 7(k) exemption. At issue is whether the City actually established such an exemption. If, as the district court found, the City did establish an exemption, then the relevant work period for purposes of calculating overtime is eight days and the overtime limit is forty-nine hours. This would mean that the City owes no overtime pay to the officers who, with the briefings accounted for, worked only forty-eight hours and forty minutes every eight days. If the City failed to establish a section 7(k) exemption, however, the relevant work period for purposes of calculating overtime is a seven-day period and the maximum number of hours workable during those seven days before overtime begins to accrue is forty. With no exemption, the City would thus owe overtime pay not only for the preshift briefings, but also for the additional eight hours worked in certain weeks.3

The City bears the burden of showing that it qualifies for a section 7(k) exemption. See Spradling v. City of Tulsa, 95 F.3d 1492, 1504 (10th Cir. 19...

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