Fenn v. Workers' Compensation Appeals Board

• Decision Date: 21 April 2003
• Docket Number: No. G029660.,G029660.
• Citation: 107 Cal.App.4th 1292,132 Cal.Rptr.2d 878
• Court: California Court of Appeals Court of Appeals
• Parties: James FENN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Anaheim, Respondents.

132 Cal.Rptr.2d 878

107 Cal.App.4th 1292

James FENN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Anaheim, Respondents.

No. G029660.

Court of Appeal, Fourth District, Division 3.

April 21, 2003.

Review Denied July 16, 2003.

Leviton, Diaz, Whiting & Ginocchio and Lawrence R. Whiting for Petitioner.

Gearheart & Otis and Mark E. Gearheart, Pleasant Hill, for California Applicants' Attorneys Association as Amicus Curiae on behalf of Petitioner.

Grancell, Lebovitz, Stander, Marx and Barnes and Robert J. Chimits, Orange, for Respondent City of Anaheim.

No appearance for Respondent Workers' Compensation Appeals Board.

OPINION

O'LEARY, J.

James Fenn (Fenn), a firefighter for the City of Anaheim (City), seeks a writ of review after the Workers' Compensation Appeals Board (WCAB or Board) denied his petition for reconsideration. There were no factual disputes to be resolved by the WCAB. Both Fenn and the City admitted Fenn was a fire engineer for the City who lost time from work because of an industrial injury.

Firefighters who suffer industrial injury are entitled to a leave of absence "without loss of salary in lieu of temporary disability payments." (Lab.Code, § 4850, subds.(a) & (b)(2).)¹ The leave of absence is for the period of disability not exceeding one year. (Ibid.)

Fenn claimed entitlement to federal Fair Labor Standards Act (FLSA) benefits as part of his section 4850 pay.² Under FLSA, a formula for determining maximum hours for firefighters is provided. For any work in excess of the maximum hours, the employee must be compensated "at a rate not less than one and one-half times the regular rate at which he is employed." (29 U.S.C.A. § 207(k)(2).)

All parties agree that had Fenn worked his normally scheduled hours he would have received FLSA pay. The City contends because Fenn was off work on industrial leave he is not entitled to the time plus one-half premium. Fenn argues it is absurd to punish him for not working his regularly scheduled shift when his reason for being absent was his industrial injury. The administrative law judge at the hearing concluded Fenn had to actually work the scheduled hours to earn the premium and denied Fenn's request. Fenn petitioned the Board for reconsideration. The Board adopted the position of the workers' compensation judge (WCJ) and denied Fenn's petition for reconsideration.

We conclude Fenn had to actually work the requisite number of hours in order to earn the FLSA premium. We therefore affirm the decision of the WCAB.

FACTUAL AND PROCEDURAL BACKGROUND

Fenn suffered industrial injury to his back and missed time from work. The City acknowledged Fenn's industrial injury and paid him section 4850 benefits based on his 192 regularly scheduled hours per 24-day cycle. As noted above, the City did not consider FLSA benefits to be part of Fenn's regular salary and refused to consider such benefits in making payment under section 4850. Fenn sought a hearing on the City's failure to pay his section 4850 salary at the desired rate.

Testimony at the hearing revealed the City operated three different shifts for the fire department. Fenn was assigned eight 24-hour shifts during a 24-day work cycle for a regular work schedule of 192 hours per pay period. The terms and conditions of Fenn's working hours and pay were controlled by a collective bargaining agreement entitled the "Memorandum of Understanding" (MOU) between the City and the Anaheim Firefighters Association. The MOU incorporated the FLSA provisions. Under the MOU 182 hours of Fenn's regularly scheduled work hours were paid at his regular salary. When Fenn worked between 183 and 192 hours during a pay period he was entitled to the FLSA premium pay of time and one-half. If Fenn took time off for vacation or sick leave he did not receive the extra FLSA pay.

In his trial brief Fenn relied on City of Sacramento v. Public Employees Retirement System (1991) 229 Cal.App.3d 1470, 280 Cal.Rptr. 847 (City of Sacramento), which held FLSA pay was part of regular salary benefits for purposes of the Public Employees Retirement System (PERS). The City relied on Mannetter v. County of Marin (1976) 62 Cal.App.3d 518, 133 Cal. Rptr. 119 (Mannetter), which held section 4850 pay did not include holiday overtime pay for a holiday the injured employee did not work. The WCJ was persuaded by Mannetter and found the phrase "required to work" to mean the employee works the required hours. Because Fenn did not actually work over 182 hours, the WCJ ruled he was not entitled to FLSA pay.

Fenn filed a petition for reconsideration with the WCAB, asking that the WCJ's findings and order be rescinded. In the report on reconsideration, the WCJ recommended that the WCAB deny the petition for reconsideration. Again relying on Mannetter, the WCJ found Fenn's case to have the same basic fact pattern, and concluded Fenn had to actually work over 182 hours to receive FLSA pay. The WCAB adopted the WCJ's findings in the report and denied the petition for reconsideration without comment.

Fenn filed a petition for writ of review. In addition to the issue set forth above, Fenn objects to the WCAB's terse four-line order denying reconsideration on the grounds the Board did not specify in detail the reasons for its decision. (§ 5908.5) We granted review and set the matter for oral argument. We also granted amicus curiae briefing to the California Applicants' Attorneys Association, an organization specializing in representing injured workers before the Board.

DISCUSSION

"Without Loss of Salary"

In City of Sacramento the Third District Court of Appeal pondered the issue of whether FLSA's premium pay was the equivalent of "overtime" under the Public Employees Retirement Law set forth in Government Code former section 20025.2. (City of Sacramento, supra, 229 Cal.App.3d at p. 1475, 280 Cal.Rptr. 847.) PERS issued a letter stating FLSA's premium pay must be reported as nonovertime "compensation" for retirement purposes if the "overtime" was within the normal workweek. (Id, at p. 1476, 280 Cal.Rptr. 847.) The City of Sacramento objected to PERS' interpretation and filed a declaratory relief action seeking a ruling that FLSA overtime premium payments constituted overtime under the Government Code definition (thus relieving the city of the obligation of making retirement contributions on this premium). Both sides filed motions for summary judgment or summary adjudication of issues. (Id, at p. 1477, 280 Cal.Rptr. 847.)

Under Sacramento's fire duty schedule, firefighters were regularly scheduled to work 192 hours within a 24-day work period. Under FLSA requirements Sacramento was required to pay federal premium wages to its firefighters for all hours worked in excess of 182 hours. (City of Sacramento, supra, 229 Cal.App.3d at p. 1477, 280 Cal.Rptr. 847.) As in the case before us, the duty shifts and number of hours worked were part of a labor agreement between the city and the firefighters' union.

Pivotal to the court's determination of whether the federal premium was overtime or compensation was what hours were considered "normal" for the Sacramento firefighters. The court noted Sacramento did not dispute that its firefighters were regularly scheduled to work 192 hours within the 24-day FLSA statutory work period. (City of Sacramento, supra, 229 Cal.App.3d 1470, 1484-1485, 280 Cal.Rptr. 847.) The court concluded that because the firefighters were normally required to work 192 hours within the statutory period the FLSA premium was not "overtime" under Government Code former section 20025.2. (Id. at pp. 1486-1487, 280 Cal. Rptr. 847.) The court did. note under FLSA the premium is paid only if the employee actually works the 182 hours and does not take personal time off. (Id. at p. 1488, 280 Cal.Rptr. 847.)

In our case the City argues City of Sacramento does not apply because it involved a dispute over retirement contributions. Instead, the City urges Mannetter is more on point. In Mannetter, Division Two of the First District Court of Appeal determined whether a deputy sheriff was entitled to compensation under section 4850 for holiday pay for a holiday he was not able to work. The deputy was assigned to work a regular shift on the 4th of July but suffered injury on July 3. Marin County paid him his regular salary but denied the additional FLSA premium. (Mannetter, supra, 62 Cal.App.3d 518, 520-521, 133 Cal.Rptr. 119.)

The court interpreted the phrase "without loss of salary" in section 4850 in conjunction with the county and sheriffs association collective bargaining agreement. The agreement provided employees were entitled to certain holidays with pay, including the 4th of July. The agreement stated, "An employee who is required to work on a day celebrated as a holiday as listed above shall be compensated at one and one-half time rates." (Mannetter, supra, 62 Cal.App.3d at pp. 520-521, 133 Cal.Rptr. 119.) The court's conclusion was, in short: no work, no pay.

The reviewing court interpreted the collective bargaining agreement as providing payment of the federal premium for employees who were req...