Berry v. Sonoma County
| Decision Date | 01 May 1992 |
| Docket Number | Civ. No. C-89-4476 SAW (FSL). |
| Citation | 791 F. Supp. 1395 |
| Court | U.S. District Court — Northern District of California |
| Parties | Gregory BERRY, et al., Plaintiffs, v. SONOMA COUNTY, et al., Defendants. |
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W. David Holsberry of Davis, Cowell & Bowe, San Francisco, Cal., for plaintiffs.
Patrick G. Grattan and Steven C. Mitchell of Geary, Shea, O'Donnell & Grattan, Santa Rosa, Cal., for defendants.
This matter was tried before the court November 12-16, 1991. Appearing for plaintiffs was W. David Holsberry, Esq. of Davis, Cowell and Bowe, San Francisco. Appearing for defendants was Patrick G. Grattan, Esq. and Steven C. Mitchell, Esq. of Geary, Shea, O'Donnell and Grattan, Santa Rosa. Both sides presented exhibits and testimony of witnesses. After the trial concluded, counsel submitted post-trial briefs and rebuttal briefs and proposed findings of fact and conclusions of law. The case was submitted December 20, 1991.
The evidence having been considered and good cause appearing, this court hereby finds for plaintiffs. Plaintiffs shall submit a cost bill and declarations supporting an award of attorney's fees. The court does not award liquidated damages.
The question presented in this case is whether the Fair Labor Standards Act of 1938 ("the FLSA"), 29 U.S.C. §§ 201 et seq., requires defendants to pay overtime compensation to plaintiffs for each hour spent "on-call" from December 1986 to the present. Plaintiffs' claim for compensatory damages totals over $200,000. Liquidated damages would bring the amount claimed to over $400,000. This action was brought by Gregory Berry, Philip Marcus, Dennis McAllister and Francis Oravetz, current and former deputy coroners employed by the Sonoma County Sheriff's Department. Defendants are Sonoma County; Sonoma County Board of Supervisors; Richard Michaelson, Sonoma County Sheriff, and Janet Nicholas, James Harberson, Tim Smithy, Nick Esposti, and Ernest Carpenter, members of the Board of Supervisors.
Plaintiffs are law enforcement employees of the Sonoma County Sheriff's Department.1 At all times relevant to this litigation, the Sheriff's Department has employed only three deputy coroners at any one time. Although the Coroner's Office's regular business hours are Monday through Friday, 8 a.m. to 5 p.m., coroners are required by California statute to respond to certain reported deaths twenty-four hours a day, seven days a week. See Cal.Gov't Code §§ 27491 et seq.; Cal. Health & Safety Code §§ 10250 et seq.
Pursuant to 29 U.S.C. § 207(k), the Sonoma County Sheriff's Department has established a fourteen-day work period. In each work period, plaintiffs are regularly scheduled to work eight ten-hour shifts, for a total of eighty hours. In addition, the coroners are required as a condition of their employment, to work many extra hours on an "on-call" basis to fulfill the Coroner's Office's statutory obligation to be available at all times. One coroner is always on-call during after-business hours.
For example, under the schedule in place since October, 1990, approximately 71 hours per week were covered by the coroners on an on-call basis. These 71 hours were divided among the then-current coroners as follows: Berry worked 30 hours per week on-call, McAllister worked 20, and Oravetz worked 21.2
In accordance with the FLSA, the County pays the coroners overtime compensation, at a rate of one and one-half times their regular pay, for all hours worked in excess of eighty-six hours per work period. See 29 U.S.C. § 207(k); 29 C.F.R. § 553.230(c). Plaintiffs receive overtime pay for all hours actually worked during their on-call time, but receive no specified compensation for each hour spent on-call, but not working.
The precise manner in which the coroners are required to conduct their duties while on-call is disputed. It is safe to say that when certain categories of deaths are reported to the Coroner's Office after hours, the Sheriff's Department dispatcher contacts the on-call deputy coroner.3 That coroner must be available by pager, telephone or the two-way radio in the coroner's county vehicle to respond to any such inquiry or death report. The coroner is often able to answer these inquiries and handle investigations over the telephone, in the same way that most investigations are handled on-duty, as well. He is guaranteed a minimum of one hour's overtime compensation for on-call time spent on the telephone. Some reports require the coroner to "call back," i.e. report in person to the Coroner's Office in Santa Rosa or to the death scene itself. Although the parties dispute the degree of flexibility the coroners have to deal with calls received during on-call hours, at a minimum it can be said that the frequency and unpredictability of these calls circumscribes the coroners' ability to participate in personal activities and often disrupts their sleep.
Plaintiffs contend that because of the excessive restrictions on their freedom to engage in personal pursuits during their on-call hours, these hours count as "hours worked" under the FLSA. Accordingly, they urge the court to award them backpay for all hours worked on-call, liquidated damages, and attorney's fees. Defendants counter that under the circumstances of this case, plaintiffs are entitled to compensation only for on-call hours actually spent responding to calls, and that, in fact, plaintiffs are compensated for being on-call by the 5% premium pay negotiated by the parties.
The District Court denied the parties' cross-motions for summary judgment, finding disputed facts relating to the flexibility with which the coroners can contend with their on-call responsibilities, i.e.: To what extent the coroners can and do engage in personal pursuits during on-call hours; the amount of time coroners have to respond to calls; the ease with which they can trade on-call responsibilities; whether they may transport family members in their county vehicles, or whether family members must travel in separate cars; whether they must remain in Sonoma County; the number and frequency of miscellaneous work-related calls they receive which are not reflected in the Coroner's Office statistics; whether plaintiffs' on-call duties are similar to and as demanding as their regular duties; the frequency with which they are "called back" to a death site or to the Coroner's Office.
The court also found disputed material issues relating to damages. Assuming that the FLSA requires defendants to pay plaintiffs backpay for all on-call time, the parties dispute whether defendants "wilfully" violated the Act and whether their purported violation was committed in bad faith. The statute of limitations for "wilful" violations of the Act is three years, but only two years for non-wilful violations. 29 U.S.C. § 255(a). In addition to backpay, employers in violation of the FLSA must pay liquidated damages in an amount equal to the unpaid overtime compensation. 29 U.S.C. § 216(b), unless their violation of the Act was in "good faith." 29 U.S.C. §§ 259-260.
The District Court found genuine disputed issues related to defendants' wilfulness and bad faith in allegedly violating the FLSA.
With both sides ready for trial, they were referred by the District Court to a magistrate judge, and consented to proceed before the magistrate judge.
The case was tried before the court for five days, during which time the parties presented exhibits and the testimony of witnesses.
The Fair Labor Standards Act (hereafter "FLSA") (29 U.S.C. § 207) provides federal standards for the protection of workers, including the minimum wage, maximum hours, investigations, inspections, homework regulations, child labor, exemptions from required standards, student and handicapped workers and overtime compensation.
Guidance on the issue of when an employee should be compensated for on-call time is provided by 29 C.F.R. § 785.17 which provides:
An employee who is required to remain on-call on the employer's premises or so close thereto that it cannot use the time effectively for its own purposes is working while "on-call." An employee who is not required to remain on the employer's premises but merely required to leave word at his home or with company officials where he may be reached is not working while on-call.
Further guidance is set forth in 5 C.F.R. § 551.431 (1989) which states:
and furthermore, 29 C.F.R. § 553.221(d) (1989) provides, in pertinent part:
The United States Supreme Court held in Garcia v. San Antonio Metropolitan Transit...
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Berry v. County of Sonoma
...and a two-hour minimum, at the same rate, if the deputy were actually called to a death scene, regardless of the actual time spent. Berry, 791 F.Supp. at 1415. Also relevant to the existence of an agreement between the parties is the district court's finding that "each plaintiff understood ......