Freeman v. City of Mobile, Ala.

• Decision Date: 21 July 1998
• Docket Number: No. 97-6047,97-6047
• Parties: 135 Lab.Cas. P 33,701, 135 Lab.Cas. P 33,706, 4 Wage & Hour Cas.2d (BNA) 1345, 11 Fla. L. Weekly Fed. C 1713 Clyde H. FREEMAN, et al., Plaintiffs-Appellants, v. CITY OF MOBILE, ALA., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1292

146 F.3d 1292

135 Lab.Cas. P 33,701, 135 Lab.Cas. P 33,706,

4 Wage & Hour Cas.2d (BNA) 1345,

11 Fla. L. Weekly Fed. C 1713

Clyde H. FREEMAN, et al., Plaintiffs-Appellants, v. CITY OF MOBILE, ALA., Defendant-Appellee.

No. 97-6047.

United States Court of Appeals Eleventh Circuit.

July 21, 1998.

Joseph O. Kulakowski, Mobile, AL, for Plaintiffs-Appellants.

Paul D. Myrick, McRight, Jackson, Dorman, Myrick & Moore, LLC, Mobile, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit Judges.

BIRCH, Circuit Judge:

Several dozen police officers (the "Appellants") seek in this case to force the City of Mobile, Alabama (the "City") to pay them overtime compensation under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (the "FLSA"), for time they have spent on roll-call and other pre- and post-shift duties. Appellants also demand overtime pay from the City on a state law contract claim, based on a 1969 Alabama law that entitles policemen in Mobile County to overtime compensation for work in excess of 40 hours per week. In the district court, Appellants lost their FLSA claims on summary judgment because the court held that the City was entitled to a statutory exemption under 29 U.S.C. § 207(k) (the "7(k) exemption") and that the Department of Labor's (the "DOL" 's) no-docking regulation, 29 C.F.R. § 541.118(a), was invalid as applied. Appellants also lost their contract claim because the district court ruled that the act on which their claim was based had been repealed. On appeal, Appellants argue that the City has not qualified for a 7(k) exemption, that the Supreme Court's recent decision in Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), establishes the validity of the no-docking rule, and that the Alabama statute underlying their contract claim is still good law. Although we agree with the district court that the City is entitled to a 7(k) exemption, we believe that the pay-docking issue merits further consideration by the district court in light of Auer, and we are concerned that Appellants's contract claim raises important issues of state law that it would be better for the Supreme Court of Alabama to decide. Therefore, we AFFIRM IN PART, REVERSE IN PART, and CERTIFY two state law questions to the Supreme Court of Alabama.

I. BACKGROUND

Appellants are patrol officers, sergeants, and lieutenants in the Uniform Services Divisions of the Mobile Police Department (the "MPD"). As such, the officers are subject to the "Rules and Regulations" adopted by the Mobile County Personnel Board (the "Personnel Board"), which has authority under Alabama law to establish job classification and compensation plans for the MPD. See generally 1939 Ala. Local Acts 470 ("Act 470"). Appellants, however, are actually in the employ of the City, which is free under the Personnel Board's Rules to choose a work period for its employees.

In 1974, the City Commission adopted Resolution 60-1440 "establish[ing] a Fourteen (14) Day work period for all members of the Mobile Police Department...." R3-76 at 10. At least in part, the City adopted this resolution in response to Congress's extension of the FLSA in 1974 to cover state and local governments. Although the Supreme Court subsequently found Congress's 1974 amendments to the FLSA unconstitutional, see National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the City never repealed Resolution 60-1440. As a result, the Resolution has remained in place through the Supreme Court's reversal of Usery in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), and Congress's subsequent re-extension of the FLSA.

Following Congress's re-extension of the FLSA, the Personnel Board amended its Rules to address "Payment for Overtime." In Rule 3.1(c), the Personnel Board mandated that:

All employees non-exempt from the provisions of the Fair Labor Standards Act shall be compensated for overtime for all hours paid in excess of forty (40) hours per week at one and one half (1- 1/2) times the employees' hourly rate of pay, or in the alternative, shall be awarded compensatory time in accordance with the provisions of said Act....

R3-76 at 8. In adopting this rule, the Personnel Board may or may not have repealed an earlier "local act" passed by the Alabama state legislature, 1969 Ala. Local Acts 856 ("Act 856"), which mandated in pertinent part that:

In all counties coming within the purview of this Act, all policemen employed by any city in the county and all deputy sheriffs in such counties shall be entitled to one and one-half (1 1/2) times their hourly wage for each hour worked in excess of forty (40) hours a week in any one week.

Although the Personnel Board has in Rule 3.1(c) required overtime pay for "non-exempt" City employees, it has not adopted any Rule specifying those positions which it understands to be exempt from the FLSA. Moreover, the City continues to have authority to set its employees' pay periods and to determine their work schedules. Pursuant to this authority, the City pays its patrol officers, sergeants, and lieutenants every other Friday, reflecting a 14-day payroll period. As part of their regular work schedules, the City's patrol officers must report for roll call ten minutes before each eight-hour shift. With this time taken into account, the patrol officers' regular work schedule is 81 hours and 40 minutes for ten work days in a 14-day payroll period. Similarly, the City's sergeants and lieutenants also must devote time to roll call before their 8-hour shifts. In addition, sergeants and lieutenants must, as part of their regular duties, train, supervise, and discipline their squads of patrol officers. As a result of these responsibilities, the City's sergeants and lieutenants often must perform significant pre- and post-shift activities, causing them to work more than 86 hours within a 14-day payroll period. ¹ The City does not pay its patrol officers, sergeants, or lieutenants any overtime compensation for time spent on roll call; the City pays its patrol officers time-and-a-half for work over 81 hours and 40 minutes in a 14-day payroll period (i.e., for work over 80 hours of shifts plus preshift time spent on roll call), but it does not pay its sergeants or lieutenants any additional compensation for overtime work.

As an additional component of the City's pay scheme, its patrol officers, sergeants, and lieutenants are all subject to disciplinary pay-docking under the MPD's "General Orders" for a variety of misbehaviors, including infractions of non-safety rules. As the district court found, the City has in fact docked the pay of several sergeants and lieutenants for violations of non-safety rules. Although the City claims on appeal to have reimbursed those sergeants and lieutenants whom it has subjected to non-safety-related, disciplinary pay-docking, Appellants vigorously dispute the City's assertion, and the record on the reimbursement issue is inconclusive.

In 1993, a number of Mobile's police officers sought overtime pay from the City for time spent on roll call. In response to these officers' inquiries, the City's Police Chief issued a memorandum stating that:

[S]ince the Police Department has an established work period of at least 7 days (ours is actually 14 days), the Department is not required to pay overtime compensation unless you work more than 86 hours during those 14 days. Because you are regularly scheduled for only 81 hours and 40 minutes ..., you are not entitled to overtime pay for roll call.

R3-76 at 12. In conformance with the Chief's memorandum, the City has refused to pay its patrol officers overtime compensation for time spent on roll call. In addition, the City has continued to deny overtime compensation to its sergeants and lieutenants.

Unsatisfied with the City's policy, Appellants filed suit against the City on July 2, 1993, in the district court. Specifically, Appellants alleged that the City had violated their rights to overtime and straight pay under the FLSA; Appellants also claimed that the City had breached their contractual right to overtime pay under Alabama Local Act 856 and Rule 3.1(c).

In August, 1994, the City moved for summary judgment on three grounds. First, the City argued that, under the FLSA's 7(k) exemption, it is not required to pay overtime compensation to any member of its police force who does not work more than 86 hours in a 14-day payroll period. Second, the City contended that it is not required to pay its sergeants or lieutenants any overtime compensation whatsoever, regardless of their hours, because they are "executive" employees. Third, the City maintained that Appellants are not entitled to overtime compensation as a matter of contract law because Rule 3.1(c) expressly incorporated the FLSA's exemptions and thereby repealed Act 856 by implication.

Subsequently, Appellants cross-moved for summary judgment. Among their asserted grounds for summary judgment, Appellants argued that (1) the City does not qualify for a 7(k) exemption because it has not affirmatively and expressly adopted a 7(k) plan, (2) the City's sergeants and lieutenants are not exempt as executive employees because they are subject to non-safety, disciplinary reductions in pay in violation of the DOL's no-docking rule, (3) Act 856 and Rule 3.1(c) both established a contractual right for Appellants to overtime pay, and (4) at a minimum the FLSA requires that the City provide straight pay (as opposed to "time-and-a-half" overtime pay) for work in excess of 40 hours in any 7-day work week.

On October 27, 1994, the district court entered summary judgment for the City against Appellants. In doing so, the district court held that the City was entitled to a 7(k) exemption and that the no-docking rule was invalid as...