Halferty v. Pulse Drug Co., Inc., 87-5609

• Citation: 864 F.2d 1185
• Decision Date: 08 February 1989
• Docket Number: No. 87-5609,87-5609
• Parties: 29 Wage & Hour Cas. (BN 273, 110 Lab.Cas. P 35,168 Irma HALFERTY, Plaintiff-Appellee, v. PULSE DRUG COMPANY, INC. d/b/a Pulse Ambulance Service, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1185

864 F.2d 1185

29 Wage & Hour Cas. (BN 273, 110 Lab.Cas. P 35,168

Irma HALFERTY, Plaintiff-Appellee, v. PULSE DRUG COMPANY, INC. d/b/a Pulse Ambulance Service,

Defendant-Appellant.

No. 87-5609.

United States Court of Appeals, Fifth Circuit.

Feb. 8, 1989.

Shelton E. Padgett, Kris J. Bird, Kaufman, Becker, Clare & Padgett, San Antonio, Tex., for defendant-appellant.

Gary Scarzafava, Judith A. Yacono, San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, SNEED, ^* and WILLIAMS, Circuit Judges.

SNEED, Circuit Judge:

Pulse Drug Co., Inc., ("Pulse") appeals a judgment awarding damages and an attorney's fee to Irma Ruth Halferty under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Secs. 201-219 (1982 & Supp.IV 1986). Pulse argues that the judgment impermissibly conflicts with an earlier order in the case and that Halferty's recovery is not proper under the FLSA. We reverse on the latter ground.

I. FACTS AND PROCEEDING BELOW

Pulse provides nonemergency ambulance care to disabled individuals. Halferty worked for Pulse as a telephone dispatcher in her home from December 1981 to May 1984. She generally was on duty from 5:00 p.m. to 8:00 a.m. five nights per week. Halferty's work required her to answer a small number of telephone calls each night, but otherwise allowed her to pursue personal, social, and business activities. For example, she could and did eat, sleep, watch television, entertain guests, babysit, and do laundry. Halferty also could leave her home so long as she could have her calls forwarded or could find someone else to answer them.

Pulse initially paid Halferty $2.50 per night plus $1.00 per ambulance run, but later paid her a flat rate of $230.00 per month. Pulse also reimbursed her for some of her telephone expenses. Halferty, however, became dissatisfied with her compensation. In 1984, Halferty filed a complaint with the Wage and Hour Division of the Department of Labor alleging that Pulse had failed to pay her the minimum wage and the overtime compensation required by the FLSA. When the Department of Labor informed Halferty that Pulse had refused to pay any back wages, she sued Pulse in the United States district court below.

The district court, with former Chief Judge Sessions presiding, held that Halferty was an "employee" of Pulse under 29 U.S.C. Sec. 216(a) (1982), and concluded that Pulse should have paid her the minimum wage and the overtime compensation required by Secs. 206(a)(1) & 207(a)(1). The court ordered Pulse to pay Halferty $27,336.03 to compensate her fully for working seventy-five hours each week. ¹ The court also awarded Halferty a $20,000 attorney's fee as permitted under Sec. 216(b).

Pulse appealed to this court. After considering a variety of arguments, we concluded that the district court had not determined whether the so-called "homeworker's" or the "waiting to be engaged" exceptions to the minimum wage and overtime requirements of the FLSA should reduce Halferty's recovery. See Halferty v. Pulse Drug Co., 821 F.2d 261, 264-68 (5th Cir.), modified, 826 F.2d 2 (5th Cir.1987). We, accordingly, remanded the case to the district court and instructed that court to address the exceptions.

The case was returned to Chief Judge Sessions who issued a written order stating that "Irma Ruth Halferty is within the homeworker's exception and the waiting to be engaged exception." Excerpts of Record (E.R.) at 4:1. The order instructed Halferty to submit proposed findings of fact and conclusions of law "in accordance with the partial reversal of the cause by the United States Court of Appeals for the Fifth Circuit." E.R. at 4:1. However, on November 1, 1987, before Halferty had taken any further action, Chief Judge Sessions Halferty submitted proposed findings of fact and conclusions of law to the court. A slightly modified version of these were included in a final order issued on November 5, 1987, and amended on November 18, 1987. The order awarded Halferty $19,607.88 in damages and a $28,184.00 attorney's fee. ² The order did not reduce Halferty's compensation under either the homeworker's or the waiting to be engaged exceptions to the FLSA. The court ruled that Halferty did not have complete freedom while on duty and that she spent her waiting time predominantly for the benefit of Pulse. Pulse again appealed to this court.

resigned. This case was assigned to Judge Bunton.

II. JURISDICTION

The district court had jurisdiction under 28 U.S.C. Sec. 1331 (1982). Although Judge Bunton did not take the case directly on remand, the record, as discussed more fully below, shows that Chief Judge Sessions effectively did very little with the case after we remanded it to him. We thus conclude that Judge Bunton had authority to make findings of fact and conclusions of law under Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 438 n. 20 (5th Cir.1977) (stating that when a "district judge who tried [a] case has resigned from the bench ... [t]he judge to whom the case is assigned on remand may be able to make new findings of fact and conclusions of law on the existing record"). Cf. Group Ass'n Plans, Inc. v. Colquhoun, 466 F.2d 469, 472 (D.C.Cir.1972) (stating that, on remand, a new district judge can adopt previous findings or hold a new trial). This court has jurisdiction to hear an appeal from the final judgment of a district court under 28 U.S.C. Sec. 1291 (1982).

III. STANDARD OF REVIEW

This court must accept Chief Judge Sessions' findings of fact unless they are clearly erroneous. See Fed.R.Civ.P. 52(a). The same is true with respect to Judge Bunton's findings of fact because they do not differ materially from those of Chief Judge Sessions. This court may review de novo a district court's conclusions of law. See International Bhd. of Teamsters v. Southwest Airlines Co., 842 F.2d 794, 799 (5th Cir.1988).

IV. CONFLICT IN ORDERS

Pulse argues that the judgment under review conflicts with Chief Judge Sessions' order which stated that Halferty was within the homeworker's and waiting to be engaged exceptions. We disagree. ³ In his written order, Chief Judge Sessions stated nothing more than that the homeworker's exception and the waiting to be engaged doctrine applied to the case; he did not state whether they required a reduction of Halferty's compensation. See E.R. at 4. Chief Judge Sessions merely intended to instruct Halferty to take the exceptions into account in submitting proposed findings of fact and conclusions of law. Although Judge Bunton subsequently ruled that neither doctrine required a reduction in Halferty's compensation, his decision does not conflict with Chief Judge Sessions' order. Both the order and decision found the exceptions to be "applicable." E.R. at 6:7.

V. FAIR LABOR STANDARDS ACT

Pulse also charges the district court with eleven errors in its findings of fact and conclusions of law. We will not address each of the alleged errors separately because Pulse contends fundamentally that the district court erred in requiring it to pay Halferty for each and every hour that she was on duty. Pulse argues that Halferty did not work for all of these hours and that the FLSA does not require it to compensate her to that extent.

The FLSA's minimum wage and overtime requirements, set forth in 29 U.S.C. Sec. 206(a)(1) and Sec. 207(a)(1) (1982), are designed to apply readily and easily to workers whose jobs require them to show up at specific hours and to work more or less continuously while on their employers' premises. Like Halferty, however, not all workers have jobs that conform to such a pattern. As a result, as we noted in Halferty, 821 F.2d at 268-70, the courts have fashioned the so-called "waiting to be engaged" and "homeworker's" doctrines to make it possible to determine the compensation that such workers deserve under the FLSA.

These doctrines operate in different ways. The waiting to be engaged doctrine, as discussed more fully below, may entitle workers to receive compensation for periods of inactivity when they spend such periods waiting on their employers. Id. at 269. The homeworker's exception, by contrast, may allow an employer to pay an employee according to a reasonable compensation agreement instead of the FLSA's specific hourly rate requirements when the employer cannot determine the exact hours that the employee works. Id. at 268. In this case, we conclude that Halferty should not receive compensation for her inactive time under the waiting to be engaged exception. Moreover, we hold that Pulse properly paid Halferty under a reasonable compensation agreement because Halferty's duties made it difficult to determine the exact number of hours she worked.

A. The Waiting to be Engaged Doctrine

In explaining the waiting to be engaged doctrine, we stated earlier that

when idle time is spent predominantly for the benefit of the employer, not the employee, the employee is engaged to be waiting, not waiting to be engaged, and is entitled to compensation. Conversely, if the time primarily benefits the employee, the employee can be considered to be waiting to be engaged, and should receive compensation only for actual work time.

Halferty, 821 F.2d at 269 (footnote omitted).

On remand, the district court found that Halferty's idle time "was predominantly time spent waiting to be engaged for [Pulse]," and ordered Pulse to compensate her for all of her hours. E.R. at 6:7. That is, Halferty's idle time was spent predominantly for the benefit of the employer, Pulse. We find this holding, if one of fact, clearly erroneous and, if one of law, plainly in error. The regulations at 29 C.F.R. Secs. 785.14-.17 (1987) (which have codified and elaborated the waiting to be engaged doctrine), as well as the cases decided under these sections, prompt these conclusions. ⁴

These regulations make clear that the critical issue in determining whether an employee should receive...