Forrester v. Roth's I.G.A. Foodliner, Inc.

• Decision Date: 29 May 1981
• Docket Number: No. 79-4670,79-4670
• Citation: Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413 (9th Cir. 1981)
• Parties: 24 Wage & Hour Cas. (BN 1406, 91 Lab.Cas. P 34,020 Billy H. FORRESTER, Plaintiff-Appellant, v. ROTH'S I. G. A. FOODLINER, INCORPORATED, an Oregon Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 413

646 F.2d 413

24 Wage & Hour Cas. (BN 1406, 91 Lab.Cas. P 34,020

Billy H. FORRESTER, Plaintiff-Appellant, v. ROTH'S I. G. A. FOODLINER, INCORPORATED, an Oregon Corporation, Defendant-Appellee.

No. 79-4670.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1981.

Decided May 29, 1981.

William B. Wyllie, Salem, Or., for plaintiff-appellant.

Valerie J. Vollmar, Clark, Marsh & Lindauer, Salem, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ANDERSON, PREGERSON and CANBY, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

This is an appeal of a summary judgment granted to the defendant-appellee, Roth's I.G.A. Foodliner. The district court's opinion, which appears at 475 F.Supp. 630, sets forth the nature of the controversy.

Plaintiff-appellant, Forrester, contends that the district court erred in granting summary judgment to Roth's because the doctrine of equitable estoppel is inapplicable to Fair Labor Standard Act (FLSA) claims: and even if the doctrine is applicable, it had not been established in this case.

Although we agree that the grant of summary judgment to Roth's was appropriate, we affirm on a different basis.

Under the FLSA, no employer shall employ any of its covered employees for a work week that is longer than 40 hours unless that employee receives as compensation for his employment at least one and a half times the regular rate for all overtime hours. 29 U.S.C. § 207(a). An employer who violates this provision is liable to the employee for the overtime wage, as well as an additional equal amount as liquidated damages, and the court may allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. 29 U.S.C. § 216(b).

As defined in 29 U.S.C. § 203(g), " '(e)mploy' includes to suffer or permit to work." "(T)he words 'suffer' and 'permit' as used in the statute mean 'with the knowledge of the employer.' " Fox v. Summit King Mines, 143 F.2d 926 (9th Cir. 1944). Thus an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of § 207. An employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.

However, where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer's failure to pay for the overtime hours is not a violation of § 207.

In the present case, the officials of Roth's stated in their affidavits that they had no knowledge that Forrester had been working uncompensated overtime hours. 475 F.Supp. at 631. Forrester himself testified in his deposition that he "did not mention any unpaid overtime work to any store official prior to filing his complaint." Id. Forrester did not raise a genuine issue of material fact concerning whether any official of Roth's should have known about his alleged uncompensated hours. Further,

"Forrester knew that overtime was supposed to be reported on time sheets and that the store regularly paid for such reported overtime. Forrester Dep. 26, 28-29. ...