Duck v. Wallace Associates, Inc.

• Decision Date: 04 November 1993
• Docket Number: No. 2094,2094
• Citation: 438 S.E.2d 269,313 S.C. 448
• Court: South Carolina Court of Appeals
• Parties: , 1 Wage & Hour Cas.2d (BNA) 1310 Phil DUCK, Appellant, v. WALLACE ASSOCIATES, INC., Respondent. . Heard

Page 269

438 S.E.2d 269

313 S.C. 448, 1 Wage & Hour Cas.2d (BNA) 1310

Phil DUCK, Appellant, v. WALLACE ASSOCIATES, INC., Respondent.

No. 2094.

Court of Appeals of South Carolina.

Heard Nov. 4, 1993.

Decided Dec. 6, 1993.

Deborah R.J. Shupe, of Berry, Dunbar, Daniel, O'Connor & Jordan, Columbia, for appellant.

Julian H. Gignilliat, of Gignilliat, Savitz & Bettis, Columbia, for respondent.

GOOLSBY, Judge:

The plaintiff, Phil Duck, appeals from the grant of summary judgment in favor of the defendant, Wallace Associates, Inc., on the issues of breach of contract and failure to pay wages in an action brought pursuant to S.C.Code Ann. §§ 41-10-50 and 41-10-80(C) (1992). We reverse and remand.

In February 1990, Wallace employed Duck to manage a men's shoe department. Wallace sent Duck a confirmation letter stating Wallace would pay Duck $200 a week plus a three per cent sales commission and "overtime in accordance with government regulations." The confirmation letter contemplated Duck's "normal work week" would be 48 hours. The hours Duck actually worked as Wallace's employee varied from week to week. Wallace terminated Duck in October 1990.

Duck brought this action, claiming Wallace owed him additional compensation for overtime pay under government regulations. Wallace denied Duck's claim, asserting it had paid all amounts owed Duck under applicable government regulations.

According to an affidavit submitted by Wilburn N. Wallace, Wallace's president, Wallace calculated Duck's overtime pay pursuant to 29 C.F.R. §§ 778.109 and 778.114. ¹ On appeal, Duck argues the trial court erred in granting Wallace's summary judgment motion because there are genuine issues of material fact regarding the parties' understanding of the term "overtime" and which particular government regulations apply to the employment contract in issue. We agree.

Summary judgment is appropriate only when it is perfectly clear that no genuine issue of material fact is involved and further inquiry into the facts is not desirable to clarify the application of the law. Hook v. Rothstein, 275 S.C. 187, 268 S.E.2d 288 (1980).

Here, Duck disputes he understood that the more overtime he worked, the less he would be paid for it. Further inquiry into the facts, therefore, is desirable to clarify the understanding of the parties regarding the payment of overtime and to clarify the application of the United States government regulations in issue. See Condo v. Sysco Corp., 1 F.3d 599 (7th Cir.1993) (wherein the court held § 778.114(a) applied to an employee after noting the employer and the employee had a mutual understanding that the employee would be paid according to the system set forth in § 778.114(a) and in the employment contract); Burgess v. Catawba County, 805 F.Supp 341 (W.D.N.C.1992) (wherein the court held the fluctuating workweek method of overtime calculation is an exception to the normal requirements of the Fair Labor Standards Act and the employer bears the burden of establishing compliance with the regulation, including evidence of a clear mutual understanding that the more hours worked, the less the pay rate).

REVERSED AND REMANDED.

HOWELL, C.J., and CURETON, J., concur.

1 29 C.F.R. § 778.109 provides:

The "regular rate" under the [Fair Labor Standards Act] is a rate per hour. The Act does not require employers to compensate employees on an hourly rate basis; their earnings may be determined on a piece-rate, salary, commission, or other basis, but in such case the overtime compensation due to employees must be computed on the basis of the hourly rate derived therefrom and, therefore, it is necessary to compute the regular hourly rate of such employees during each workweek, with certain statutory exceptions discussed in §§ 778.400-778.421. The regular hourly rate of...