Beebe v. United States

• Decision Date: 28 January 1981
• Docket Number: No. 326-79C.,326-79C.
• Citation: 640 F.2d 1283
• Parties: Nelson BEEBE et al., v. The UNITED STATES
• Court: U.S. Claims Court

640 F.2d 1283

Nelson BEEBE et al., v. The UNITED STATES

No. 326-79C.

United States Court of Claims.

January 28, 1981.

Mitchell J. Notis, Washington, D. C., attorney of record for plaintiff. John R. Rosa, Washington, D. C., of counsel.

Lenore C. Garon, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel. Ramsey G. Cole, Jr., Washington, D. C., of counsel.

Before COWEN, Senior Judge, and KASHIWA and BENNETT, Judges.

ON DEFENDANT'S AND PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT

COWEN, Senior Judge:

Plaintiffs are current or retired firefighters who are or were employed by the Department of Agriculture at the Plum Island Disease Control Center (PIADC). Claiming that the government violated the Fair Labor Standards Act (FLSA or the Act), 29 U.S.C. sec. 201, et seq., by failing to pay them the full amount of overtime pay due them, they brought this action to recover back pay, plus liquidated damages, attorneys' fees and costs. The principal issue presented is whether the time allowed plaintiffs as eating and sleeping time during their regularly scheduled tours of duty should be included in the hours of work for computing their overtime pay under the FLSA. We answer this question in the affirmative and grant plaintiffs' cross-motion for summary judgment to the extent of holding that they are entitled to recover the claimed overtime pay for periods not barred by the statute of limitations, plus attorneys' fees and costs. Since the claim for liquidated damages involves factual issues, that question, and a determination of the amount of overtime pay and attorneys' fees which plaintiffs are entitled to recover, are remanded for trial.

I. Factual and Legislative Background

It was not until the passage of the Fair Labor Standards Amendments of 1974, Pub.L. 93-259, 88 Stat. 55 (April 8, 1974) that the federal government, as an employer, became subject to the FLSA. Most federal employees who receive overtime pay under the Act are compensated under 29 U.S.C. sec. 207(a), which provides that no employer shall employ any employees for a longer work week than 40 hours, unless they receive compensation at a rate not less than 1½ times the regular rate for such excess hours of work.

Between the time the Act became applicable to federal employees on May 1, 1974, and until January 1, 1975, federal firefighters were exempted from coverage under the overtime provision of the FLSA. However, effective as of January 1, 1975, section 7(k) was added to the Act. It is codified in 29 U.S.C. as section 207(k) and provides in pertinent part:

(k) No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities * * * if —

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed 240 hours; or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 240 hours bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Effective on January 1, 1976, "240 hours" in the section of law above was reduced to "232 hours" and as of January 1, 1977, "232 hours" was changed to "216 hours."

An explanation for the removal of the exemption and a statement of the Congressional purpose in enacting the above-quoted provision is contained in House Conference Report No. 93-953, 93d Cong., 2d Sess., which is reprinted in 1974 U.S.Code Cong. & Adm.News, vol. 2, pp. 2811, 2864. The Conference Report provides in pertinent part as follows:

OVERTIME EXEMPTION FOR POLICEMEN AND FIREMEN

Under the Senate bill a limited overtime exemption was authorized for policemen and firemen under employer-employee agreements providing a 28-day work period and if during such period such employees receive overtime compensation for employment in excess of —

* * * * * * The House amendment provided for a complete overtime exemption for policemen and firemen.

The Senate receded with an amendment which provides that firefighters and law enforcement personnel receive overtime compensation for tours of duty in excess of —

(1) 240 hours in a work period of 28 days (60 hours in a work period of 7 days) or in the case of any work period between 7 and 28 days, a proportionate number of hours in such work period) during the year beginning January 1, 1975.

(2) 232 hours in a work period of 28 days (58 hours in a work period of 7 days) or in the case of any work period between 7 and 28 days, a proportionate number of hours in such work period) during the year beginning January 1, 1976; and

(3) 216 hours in a work period of 28 days (54 in a work period of 7 days) or in the case of any work period between 7 and 28 days, a proportionate number of hours in such work period) during the year beginning January 1, 1977, and thereafter, * * *.

* * * * * *

The conference substitute further provides for averaging duty hours over the work period so long as the work period is no greater than 28 consecutive days. The conference substitute departs from the standard FLSA "hours of work" concept directed primarily at industrial and agricultural occupations and adopts an overtime standard keyed to the length of the tours of duty, thereby reflecting the uniqueness of the firefighting service. The Secretary is directed to adopt regulations implementing these new and unique provisions, including regulations defining what constitutes a tour of duty.

The legislative history shows that the overtime pay provisions of the FLSA applicable to federal firefighters differ significantly from the FLSA overtime pay provisions for most other federal employees. First, the federal firefighters were exempt from the overtime pay provisions of the Act prior to January 1, 1975, while other federal employees were entitled to overtime compensation after May 1, 1974. Second, section 7(k) of the Act adopted a new standard for federal firefighters; it enables the employer to utilize "work periods" of not more than 28 days in determining the firefighters' entitlement to overtime pay, while the general overtime provision requires the computation of FLSA overtime entitlement for each "work week." Also, the FLSA overtime is payable to federal firefighters based upon the number of hours in their "tour of duty" that exceeds the number of hours specified in section 7(k), while other federal employees covered by the Act are entitled to overtime pay only for hours of work during which they are employed for more than 40 hours in a work week.

In making the federal government as an employer subject to the Act, Congress authorized the Civil Service Commission to administer the FLSA in the federal sector. Section 4(f) of the Act (29 U.S.C. sec. 204(f)).¹

The administration of the Act with respect to federal firefighters was accomplished by the Civil Service Commission through the issuance of Federal Personnel Manual (FPM) Letter 551-5 in an advance edition of December 27, 1974, entitled "Instructions for Applying the Fair Labor Standards Act (FLSA) to Federal Employees Engaged in Fire Protection Activities or Law Enforcement Activities." Attachment 2 to FPM Letter 551-5 contained regulations giving effect to the special overtime provisions of section 7(k) of the Act. The following portions of attachment 2 are particularly pertinent to this action:

C. Tour of Duty and Hours of Work Under Section 7(k) of the FLSA

1. General Statement In extending the coverage of the FLSA to employees engaged in fire protection activities or law enforcement activities, Congress was aware that the work schedules of these employees vary from the work schedules of other employees, and clearly recognized that some adjustment would have to be made in the usual rules for determining hours of work in their case. Thus, Congress departed from the standard "hours of work" concept and adopted an overtime standard keyed to the length of the "tour of duty". In addition, Congress also adopted a new work period concept which may be used instead of the usual workweek basis for determining overtime hours.

2. Tour of Duty

The term "tour of duty," as used in section 7(k) of the FLSA, means the period during which an employee is on duty. It may be a scheduled or unscheduled period. Scheduled periods refer to shifts, i. e., the period of time which elapses between scheduled arrival and departure times (as in the case for example, of a firefighter who has a scheduled 24 hour shift from 8:00 a. m. one morning until 8:00 a. m. the next morning; or in the case for example, of a criminal investigator who has a scheduled eight and one-half hour shift from 8:30 a. m. until 5:00 p. m. the same day), or to scheduled periods outside the shift (as in the case for example, of a special detail involving crowd control during a parade or other such event. * * *

* * * * * *

4. Sleeping and Meal Time

a. Duty of 24 Hours or Less. Sleep and meal time shall not be excluded from hours worked in the case of any employee engaged in fire protection activities or law enforcement activities when the employee is required to be on duty for 24 hours or less.

b. Duty of More Than 24 Hours. Sleep and meal time may, however, be excluded in the case of fire protection or law enforcement employees who are on duty for more than 24 hours, but only if the employer and the employee have agreed to exclude this time. In the absence of any agreement, sleep and meal time shall constitute hours of work. * *

Prior to January 1, 1975, and in accordance with law in effect at that time, plaintiffs were paid under the "two-thirds rule." Under this judicially approved rule, 8 of every 24 hours of plaintiffs' tours of duty were excluded as non-compensable time. See Collins v....