Calvao v. Town Of Framingham

• Decision Date: 17 March 2010
• Docket Number: No. 09-1648.,09-1648.
• Citation: 599 F.3d 10
• Parties: Duarte CALVAO, et al., Plaintiffs, Appellants, v. TOWN OF FRAMINGHAM, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

599 F.3d 10

Duarte CALVAO, et al., Plaintiffs, Appellants, v. TOWN OF FRAMINGHAM, Defendant, Appellee.

No. 09-1648.

United States Court of Appeals

First Circuit.

Heard: Feb. 4, 2010.

Decided: March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Jack J. Canzoneri with whom Mark A Hickernell, Alan J. McDonald, and McDonald Lamond & Canzoneri were on brief for the appellants.

Christopher J. Petrini with whom Peter L. Mello and Petrini & Associates, P.C. were on brief for the appellee.

John Foskett and Deutsch Williams Brooks Derensis & Holland, P.C. were on brief for amici curiae City Solicitors and Town Counsel Association, Massachusetts Municipal Association, and Massachusetts Chiefs of Police Association, Inc., in support of the appellee.

Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

This case under the Fair Labor Standards Act ("FLSA") raises an issue about whether a city or town must give notice to its public safety officers as a matter of federal law before the municipality takes advantage of a special statutory exemption for these officers from usual overtime requirements, 29 U.S.C. § 207(k). We hold no such notice is required.

Plaintiffs are police officers of the Town of Framingham who brought a putative class action suit against the Town in April 2005, alleging that the Town had failed to pay them sufficient overtime in violation of the FLSA, 29 U.S.C. §§ 201-19, and seeking damages. Anticipating the Town's defense, the officers sought a declaratory judgment that the Town was ineligible for the FLSA's limited public safety exemption from overtime, 29 U.S.C. § 207(k). That exemption eases the FLSA's overtime pay requirements on public employers who establish work schedules that meet statutory requirements.

The district court granted partial summary judgment, holding the Town met the eligibility requirements for the public safety exemption. Calvao v. Town of Framingham, No. 05-10708, 2008 WL 2690358 at *4 (D.Mass. July 2, 2008). The parties have since stipulated to judgment on the remaining issues.

We affirm the district court and reject plaintiffs' argument that the Town was required to notify affected employees before establishing a valid work period under § 207(k). The text of the statute and the Department of Labor's interpretive guidance, as well as our caselaw, confirm that a public employer need only establish a § 207(k)-compliant work period to claim the exemption's benefits without explicitly giving notice to the affected employees. The Town has done so and is entitled to judgment. We also reject plaintiffs' claim that the district court abused its discretion by denying their motion to strike certain evidence.

I.

A. Legal Background: The FLSA's Pubtic Safety Exemption, 29 U.S.C § 207(k)

The history and scope of the FLSA public safety exemption set the background.

"Congress enacted the FLSA in 1938 to establish nationwide minimum wage and maximum hours standards." Moreau v Klevenhagen, 508 U.S. 22, 25, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993); Ellen C. Kearns et al., The Fair Labor Standards Act § l.III, at 12-13 (1999). Later amendments in 1966 and 1974 extended the Act's reach to state and municipal employers. See Moreau, 508 U.S. at 25-26, 113 S.Ct. 1905. Despite congressional efforts to mitigate the effect of these amendments on municipal coffers, e.g., Kearns et al., supra § 11.V.B., at 687, the amendments triggered protracted litigation, as state and local public employers mounted constitutional challenges to the FLSA's regulation of state-employer compensation schemes. See Moreau, 508 U.S. at 26 & n. 6, 113 S.Ct. 1905 (collecting cases). In part, the employers were successful. See Nat'l League of Cities v. Usery, 426 U.S. 833, 851-52, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) (invalidating 1974 amendments to the FLSA to the extent that they "impermissibly interfere[d] with the integral governmental functions" of states and municipalities).

In February 1985, the Supreme Court upheld Congress's power under the FLSA to regulate the payments due to state and local employees. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). State and municipal authorities reacted with "grave concern" to the decision, due in part to "[t]he projected 'financial costs of coming into compliance with the FLSAparticularly the overtime provisions.'" Moreau, 508 U.S. at 26, 113 S.Ct. 1905 (quoting S.Rep. No. 99-159, at 8 (1985), U.S.Code Cong. & Admin.News 1985, pp. 651, 655).

In response, both the House and Senate held hearings on the issue "and considered legislation designed to ameliorate the burdens associated with necessary changes in public employment practice." Id. Congress ultimately enacted several provisions designed to allay public employers' fears and contain costs. See, e.g., id. Congress also delayed enforcement of the FLSA against state and local employers until April 15, 1986, to give them time to comply with the Act's amended requirements. See Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150, § 2(c), 99 Stat. 787, 788-89.

Section 207(k) was originally passed in 1974. The provision created a partial FLSA exemption for law enforcement and fire protection personnel ("public safety personnel"). See 29 U.S.C. § 207(k). When Garcia held the FLSA applied to municipal employees, § 207(k) became very important to municipalities. See Martin v. Coventry Fire Dist., 981 F.2d 1358, 1361 (1st Cir.1992).

Under the FLSA, employees other than public safety personnel are generally entitled to payment "at a rate not less than one and one-half times" their regular wages for any time worked in excess of forty hours in a seven day period. 29 U.S.C. § 207(a)(1). However, the partial exemption in § 207(k) set a higher threshold number of hours that public safety personnel can work in a twenty-eight day work period—or a proportional number of hours in a shorter work period of at least seven days—before these employees become entitled to overtime compensation. See id. § 207(k).¹

In § 207(k), Congress set the maximum number of pre-overtime hours; it gave the Secretary of Labor authority to promulgate regulations establishing a lower ceiling. Id. § 207(k)(l)(B); see also O'Brien v. Town of Agawam, 350 F.3d 279, 290 n. 20 (1st Cir.2003). The Secretary did so in 1987, setting a limit for law enforcement personnel of 171 hours over a twentyeight-day period, or the proportional equivalent over a shorter span of time. See 29 C.F.R. § 553.230. For a twentyfour-day work period, this ratio works out to approximately 147 hours, or about fortythree hours every seven days. Id. § 553.230(c).

Section 207(k) eases the burden of the FLSA's overtime provisions on state and local employers two ways. The partial exemption provides for higher hourly standards before requiring the payment of overtime; further, it permits overtime hours to be computed over a workweek that may be longer than a forty-hour workweek and that the employer selects. As we explained in Agawam:

[Section 207(k)] raises the average number of hours the employer can require law enforcement and fire protection personnel to work without triggering the overtime requirement, and it accommodates the inherently unpredictable nature of firefighting and police work by permitting public employers to adopt work periods longer than one week. The longer the work period, the more likely it is that days of calm will offset the inevitable emergencies, resulting in decreased overtime liability.

350 F.3d at 290 (internal citations omitted); see also Garcia, 469 U.S. at 554 n. 17, 105 S.Ct. 1005 (citing § 207(k)'s limited public safety exemption as an illustration of Congress's attention to "the special concerns of States and localities"); Avery v. City of Talladega, 24 F.3d 1337, 1344 (11th Cir. 1994) ("The work period concept was intended to ease the overtime burdens of certain public employers.") (citing 52 Fed. Reg. 2012, 2024 (Jan. 16, 1987)); Martin, 981 F.2d at 1361.

Before a public employer may qualify for the limited public safety exemption, two things must be true: (1) the employees at issue must be engaged in fire protection or law enforcement within the meaning of the statute and (2) the employer must have established a qualifying work period. See Agawam, 350 F.3d at 290. In turn, the qualifying work period must be at least seven but not more than twentyeight consecutive days. 29 C.F.R. § 553.224(a). Overtime need not be paid unless the number of hours worked exceeds ratios, different for police than for fire employees that are set forth in De-partment of Labor regulations. 29 C.F.R. § 553.230. There are other requirements that are not germane here.

Assuming these conditions are satisfied, "the employer can simply start paying its employees under § 207(k)." Agawam, 350 F.3d at 291. Further, the employer may opt to pay its employees more than § 207(k) mandates without forfeiting the benefits of the exemption. Id. at 291 & n. 21; Milner v. Hazelwood, 165 F.3d 1222, 1223 (8th Cir.1999) (per curiam). Public employers bear the burden of proving they met § 207(k)'s requirements by clear and affirmative evidence. Agawam, 350 F.3d at 290-91; Kearns et al., supra § 11.V.B., at 688.

B. Factual Background

Plaintiffs do not dispute the district court's description of the Town's actions and agree that the officers were law enforcement personnel within the meaning of the statute. However, they argue that the court erred by concluding that the Town could—and did—establish a qualifying work period under 29 U.S.C, § 207(k) without explicitly notifying affected employees it was doing so. We briefly review the relevant facts.

In September 1985, after Garcia was decided, the Town's personnel board prepared a memorandum that expressed "extreme concern" at the application of the FLSA's wage and hour requirements to municipal employers and sought guidance from the Town's counsel. Over the ensuing months, the Massachusetts...