Counts v. South Carolina Elec. & Gas Co.
| Decision Date | 31 January 2003 |
| Docket Number | No. 02-1131.,02-1131. |
| Citation | 317 F.3d 453 |
| Parties | Carroll M. COUNTS; Charles J. Dickey, Jr.; Donald M. Fisher; John K. Knox; Charles J. McKinney; Robert K. Marsh; Barry E. Mather; Jerry R. Nolting; Susan B. Reese; Marty S. Ruff; Karl D. Sease; John E. Thompson; Lyndell Warren Holsonback; Dennis Lawayne Hutton; Dean G. Brouillette; Douglas Owen Watson, individually, and as representatives for the benefit and on behalf of others similarly situated, Plaintiffs-Appellants, and John Doe, I; John Doe, II; John Doe, III; John Doe, IV; John Doe, V; Robert D. Derrick, Plaintiffs, v. SOUTH CAROLINA ELECTRIC & GAS COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Arthur K. Aiken, Hammer, Hammer, Carrigg & Potterfield, Columbia, South Carolina, for Appellants. Sue Erwin Harper, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, South Carolina, for Appellee.
ON BRIEF:
William C. Wood, Jr., Debbie N. Whittle, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, South Carolina, for Appellee.
Before WILKINSON, Chief Judge, and WILLIAMS and MOTZ, Circuit Judges.
Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge MOTZ joined.
Plaintiffs in this case sued their employer, South Carolina Electric and Gas Company, for overtime wages for work done during two five-week periods in 1997 and 1999. Plaintiffs' status as exempt administrative employees under the Fair Labor Standards Act, however, does not change merely because they perform some nonexempt labor. Therefore, their claim for overtime pay must fail.
Plaintiffs are seventeen salaried employees of South Carolina Electric and Gas ("SCE & G") who work at the V.C. Summer Nuclear Station in Jenkinsville, South Carolina. All earn between $52,000 and $65,000 a year. They brought a class action suit pursuant to the Fair Labor Standards Act ("FLSA") on behalf of themselves and others similarly situated. Plaintiffs contended that they were entitled to recover unpaid wages for overtime work performed during two plant outages, as well as liquidated damages and attorney's fees.
Approximately every eighteen months, the V.C. Summer plant must be shut down for the performance of routine maintenance. During these outages, workers refuel the plant and complete other tasks which cannot be accomplished while the reactor is on-line. Outages generally last thirty-five to forty days, during which time SCE & G utilizes both its own staff and contract employees to complete the work as efficiently as possible. Employees who are not exempt from the overtime provisions of FLSA are paid time and a half for any hours over forty a week worked during the outages.
Many employees are reassigned during these down periods and asked to perform outage-specific tasks. Because this is a busy time for the plant, employees are also asked to work extra hours. Assignments are based on the company's need and the employees' expertise. During an outage in October and November of 1997, SCE & G asked 282 of its 290 exempt employees to work more than forty hours during at least one work week. Twelve of these 282 employees were reassigned to jobs normally considered nonexempt. During an outage in April and May of 1999, 282 of SCE & G's 285 exempt employees worked overtime. Sixteen of those employees were asked to complete tasks normally performed by nonexempt workers.
The seventeen plaintiffs in this case were administrative employees asked to perform nonexempt duties during the outages in question. None of these employees were paid overtime wages for this work. Each received his normal management salary during this time, and each returned to his regular job after the outage tasks were complete.
Plaintiffs filed this suit in state court alleging that SCE & G violated Section 7(a) of FLSA by failing to compensate them for overtime worked during these two fueling outages. Specifically, plaintiffs claimed that they were entitled to be paid time and a half for overtime hours worked at non-exempt tasks during these five-week periods. SCE & G removed the case to the United States District Court for the District of South Carolina and, following the completion of discovery, moved for summary judgment. The district court granted SCE & G's motion on December 27, 2001. Plaintiffs appeal.
Section 7(a) of FLSA mandates that employees be paid at least time and a half for any time they work over forty hours a week. 29 U.S.C § 207(a). However, those employed in an executive, administrative, or professional capacity are subject to a specific exemption from this overtime pay eligibility. 29 U.S.C. § 213. The issue in this case is whether plaintiffs at all times fit within this exemption and therefore were not entitled to overtime pay.
The Department of Labor has promulgated specific regulations implementing the FLSA exemptions. See 29 C.F.R. §§ 541.1, 541.2, 541.3. These regulations state that in order to be exempt from overtime pay requirements, an employee must be paid on a salaried rather than an hourly basis, and his employment must be of a bona fide administrative, professional, or executive nature. Id. Whether an employee qualifies for this exemption is determined by applying two tests contained in these regulations.
Under the "long test," an employee's duties are examined on a workweek basis. If an employee spends more than 20% of his hours in each workweek performing non-administrative duties, then he may not be treated as exempt under this test. 29 C.F.R. § 541.2. However, if an employee earns a salary of more than $250 per week, his exempt status is determined using a "short test." Under this test, an employee is exempt from the overtime provisions so long as (1) the employee's primary duty consists of the performance of office or non-manual work directly related to management or general business operation; and (2) the employee customarily and regularly exercises discretion and independent judgment. 29 C.F.R. § 541.214.
All of the plaintiffs in this case earn more than $250 a week, and they admit that under ordinary circumstances they are properly classified under the short test as administrative employees exempt from the overtime provision of FLSA. They argue, however, that during the five weeks out of every eighteen months that they perform nonexempt outage-related tasks, their status should change. We disagree.
First, plaintiffs contend that each workweek should be viewed independently for purposes of applying the FLSA regulations. Therefore, they argue that they are entitled to overtime pay for each week that their primary duty was not administrative in nature. The short test under which these employees' status must be determined, however, contains no mention of a workweek standard.
In Marshall v. Western Union Telegraph Co., 621 F.2d 1246 (3d Cir.1980), the Third Circuit specifically rejected a similar attempt to import a workweek standard into the short test. In Marshall, the Secretary of Labor sought to require an employer to pay overtime wages to managerial employees who, during a strike, performed functions normally performed by nonexempt employees. The court rejected the use of a workweek standard for determining these employees' exempt status, finding that the "careful inclusion of the workweek standard in [the long test] and its exclusion in the [short test] indicates that the exclusion was...
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