Donovan v. Nekton, Inc., 82-5541
| Decision Date | 14 April 1983 |
| Docket Number | No. 82-5541,82-5541 |
| Citation | 703 F.2d 1148 |
| Parties | 26 Wage & Hour Cas. (BN 134, 97 Lab.Cas. P 34,358 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, (Successor to Marshall), Plaintiff-Appellee, v. NEKTON, INC., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William E. Dysart, Dale & Lloyd, La Jolla, Cal., defendant-appellant.
Barbara E. Kahl, Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before ANDERSON and FARRIS, Circuit Judges, and SOLOMON, * District Judge.
The Secretary of Labor (Secretary) filed an action to enjoin Nekton, Inc. (Nekton) from violating the overtime compensation provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Sec. 201 et seq. (FLSA). The Secretary also seeks unpaid overtime compensation for "marine technicians" and "electronics technicians" employed aboard Nekton's oceanographic research vessels.
The district court found Nekton in violation of the FLSA, and Nekton appeals.
The sole issue is whether marine technicians and electronic technicians aboard oceanographic research vessels are "seamen" within the meaning of 29 U.S.C. Sec. 213(b)(6) and therefore exempt from the overtime compensation provisions of the FLSA.
Nekton is a California corporation which performs oceanographic, seismological, and geological research principally for government agencies and oil companies. Nekton owns three oceanographic research vessels (ORV's), all of which are under United States registry. The vessels collect data but have no laboratories on board. Most of Nekton's surveys are conducted off the coasts of the United States and Mexico.
Nekton's ORV's normally carry no passengers other than Nekton's employees and the client's technical representative, and no cargo or equipment other than that necessary for the surveys to be conducted. On a typical coastal survey, the ORV is manned by a crew of twelve to fifteen members. The crews generally include a captain, mate, engineer, navigator, cook and deckhands. They also include marine and electronic technicians.
When an ORV is moored, Nekton pays all the crew members overtime compensation as required by the FLSA, but when the crew is working at sea, Nekton does not pay them extra compensation for overtime.
Marine and electronic technicians are paid monthly salaries and receive a salary differential for sea duty. They do not need merchant mariners' documents, and do not sign shipping articles before they serve on an ORV. The district court described their duties as follows:
The district court also found that all crew members occasionally perform other tasks required for the general operation of the vessel as an ORV. But when a survey is conducted far from the ORV's home port, a smaller crew takes the ORV to its destination, and the marine and electronic technicians are flown to the ORV before the survey begins.
The district court found that the primary duties of the marine technicians are to launch and retrieve the seismic gear, and to operate the seismic recorders. The district court also found that the primary duties of electronic technicians are to maintain the electronic and seismic gear, the ship's radio, and to assist the ship's engineer to repair the ship's gear.
Based on these findings, the district court concluded that Nekton's marine and electronic technicians are "part of the ship's scientific team" and are not exempt as seamen from the overtime provisions of the FLSA. The court noted that it is Nekton's burden to prove that its employees are exempt, and that the term "seaman" has been interpreted to refer to:
one who performs as a master or subject to the authority, direction, and control of a master aboard a vessel, service which is rendered primarily as an aid in the operation of a vessel as a means of transportation and who performs no substantial amount of work of a different character.
Conclusions of Law 2. The district court found that the principal activities of Nekton's marine and electronic technicians are not of a "nautical nature," but their purpose was to "aid in the performance of seismic surveys." They are not "seamen."
The district court also stated that the ORV Act, codified at 46 U.S.C. Sec. 444 required it to hold that scientific personnel were not seamen. 1 Although the ORV Act does not mention the FLSA, the district court held that the exclusion of scientists from the "seamen" category applies to the FLSA. 2
The court ordered Nekton to pay overtime compensation to its marine and electronic technicians, and enjoined Nekton from future violations of the FLSA.
The premium overtime compensation provisions of 29 U.S.C. Sec. 207 do not apply to "any employee employed as a seaman." 29 U.S.C. Sec. 213(b)(6). Therefore, the applicability of the overtime provisions to marine and electronic technicians depends on whether these employees are "seamen" within the meaning of the FLSA.
An employer who claims an exemption from the FLSA has the burden of showing that the exemption applies:
Any exemption from [the FLSA] must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the...
To continue reading
Request your trial
-
Magana v. Com. of the Northern Mariana Islands, 95-16120
...that must be pleaded and proved by the defendant. Jones v. Giles, 741 F.2d 245, 248-249 (9th Cir.1984) (citing Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983)). See also Fed. Rules Civ. Proc. (8)(c) and 12(b), (g). 5 We have liberalized the requirement that defendants must raise......
-
In re Farmers Ins. Exch. Claims Rep. Overtime Pay, MDL NO. 33-1439.
...an employee fits within an exemption. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1124 (9th Cir.2002)(quoting Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983)); Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). Because the FLSA "`is to b......
-
Takacs v. A.G. Edwards and Sons, Inc., 04 CV 1852 JAH (NLS).
...application limited to those establishments plainly and unmistakably within the terms and spirit."); see also Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983) (An "employer who claims an exemption from the FLSA has the burden of showing that the exemption Defendant first states t......
-
Doe v. Butler Amusements, Inc.
...the FLSA and California wage and hour laws, it is Defendant's burden to show that an exemption is applicable. Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983) (FLSA); Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 338, 17 Cal.Rptr.3d 906, 96 P.3d 194 (2004). Further,......