Hultgren v. County of Lancaster, Neb.
| Decision Date | 04 September 1990 |
| Docket Number | No. 89-2391,89-2391 |
| Citation | 913 F.2d 498 |
| Parties | 29 Wage & Hour Cas. (BN 1569, 59 USLW 2228, 116 Lab.Cas. P 35,399 Lisa A. HULTGREN; Victoria M. Smith; and Daniel R. Turner, Appellees, v. COUNTY OF LANCASTER, NEBRASKA, a political subdivision of the State of Nebraska, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael E. Thew, Lincoln, Neb., for appellant.
James D. McFarland, Lincoln, Neb., for appellees.
Before MAGILL and BEAM, Circuit Judges, and LARSON, * Senior District Judge.
This case arises under the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201 et seq. Certain "relief employees" hired by the Lancaster Office of Mental Retardation to work in residential facilities for the mentally retarded brought suit alleging that failure to compensate them for "sleep time" violated the FLSA. The case was tried by consent before a magistrate, who found, after an extensive review of the facts, that plaintiffs' "sleep time" constituted working time under the FLSA. Ruling that Lancaster County was not entitled to a good faith defense under the Portal to Portal Act, 29 U.S.C. Sec. 259, the magistrate awarded plaintiffs damages of $23,056.10 for uncompensated hours from April 15, 1986, the date the Fair Labor Standards Act became applicable to local governments, to February 18, 1988, the date plaintiffs filed their complaint. The magistrate concluded that liquidated damages were also warranted for a portion of the time claimed by the plaintiffs pursuant to 29 U.S.C. Sec. 260.
This appeal followed. We affirm the judgment below insofar as it imposes liability under the FLSA, but reverse the award of liquidated damages and remand for consideration of whether plaintiffs are entitled to prejudgment interest. Our review of the record convinces us that plaintiffs are entitled to recover unpaid wages, but that requiring the county to pay liquidated damages, under all the relevant circumstances herein, would be unjust.
The County of Lancaster, through the Lancaster Office of Mental Retardation (LOMAR), operates numerous residential facilities for mentally retarded individuals. Although each residential facility is unique, they all are staffed under the same general conditions. Most have a residential manager who lives on the premises for extended periods of time, usually five or six consecutive days. "Relief employees," formally known as human service instruction assistants (HSIAs), take the place of the residential managers one or two days a week to give the managers time off from their supervisory duties. An HSIA assigned to a typical "relief" shift would report to a facility at 2:45 p.m. in the afternoon and remain on the premises until 8:30 a.m. the next day. Eight hours of the shift, from 11:00 p.m. to 7:00 a.m., would be designated as "sleep time."
Unlike the resident managers, who were hired to care for residents at one facility, HSIAs moved from facility to facility. Accordingly, they "did not have the luxury of knowing the clients as well or having the clients become comfortable with their presence." They also had to adapt to the different sleeping accommodations provided at each facility. In some places, the HSIAs were required to sleep on a couch or a hide-a-bed in the living room. Other facilities had staff bedrooms, which normally were used by the residential managers. Relief employees often slept in the living room even when a separate staff bedroom was available, because of the behavior patterns of the residents and/or the condition of the particular staff bedroom.
Regardless of where they spent their "sleep time," the relief employee's job was "to sleep with one eye and one ear open" to ensure the safety and well-being of the residents. Residents at each facility displayed a variety of behaviors which resulted in numerous interruptions during the nighttime hours. This behavior included attempts to escape or leave the facility, displaying aggressive and self-abusive behaviors, taking frequent loud and disruptive trips to the bathroom and kitchen, urinating in inappropriate places, talking in their sleep, turning on the stereo, being afraid of thunderstorms, attacking other residents, throwing tantrums, having itching attacks, waking up and wandering around, watching the television (which in at least one facility was in the same room where the relief employee was supposed to sleep), asking for cigarettes, and having delusions or coughing attacks.
The frequency and duration of interruptions varied from facility to facility and from night to night, but plaintiffs testified, and the magistrate found, that the interruptions were so numerous that it was impossible for plaintiffs to get even several hours of uninterrupted sleep. Plaintiffs testified they usually went home to sleep after their relief shift ended.
Prior to the Supreme Court's decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct 1005, 83 L.Ed.2d 1016 (1985), HSIAs were not subject to Fair Labor Standards Act compensation requirements and they were hired with the understanding that they would not be paid for eight hours of night-time duty each relief shift, regardless of whether their sleep was interrupted or not. In Garcia, the Supreme Court overruled National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and held that Congress could legislate minimum wage and hour standards for state and local government employees. See Garcia, 469 U.S. at 555-57, 105 S.Ct. at 1019-20. 1
After learning of the Garcia decision, LOMAR's executive director contacted the Lancaster County Attorney and received various wage and hour publications addressed to compliance with the FLSA. At issue here are the FLSA requirements for compensation of "sleep time." Regulations of the Department of Labor's Wage and Hour Division address this question. These regulations provide that an employee who works less than 24 hours per shift is considered to be working for the entire shift, even if some of the time is spent sleeping and even if facilities are furnished for sleeping. 29 C.F.R. Sec. 785.21.
Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude eight hours of sleep time "provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep." Id. at Sec. 785.22(a). Even where there is an agreement to exclude sleep time, if the employee's sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. Id. at Sec. 785.22(b). For enforcement purposes, if an employee cannot get at least five hours' sleep during the scheduled period, the entire time is working time. Id.
If an employee resides on the premises on a permanent basis or for an extended period of time, any reasonable agreement which compensates the employee for actual hours worked "which takes into consideration all of the pertinent facts will be accepted." Id. at Sec. 785.23.
In interpreting the application of these regulations to the employees who work in LOMAR's residential facilities, LOMAR looked to two position letters from a Deputy Administrator of the Wage and Hour Division received by the Executive Director of the National Association of Private Residential Facilities for the Mentally Retarded. 2 A letter bearing the date February 3, 1981, responds to a request by the association for clarification on "the circumstances under which an employer can deduct from hours worked the time spent by house-parents sleeping at privately-operated community residences for the mentally retarded." After generally describing the schedules of both houseparents and relief employees, the letter further assumes "[t]he houseparents and relief staff sleep in private quarters separate from the mentally retarded residents of the group home." The letter then responds to two questions concerning the compensation of the houseparents. The response to the third question concerns the compensation of relief employees:
Your third and final question related to employees who do not reside at the community residences but who, as relief employees, remain there for at least 24 hours, and often as long as two or three days. You have informed us that these relief employees, during a 24-hour period, have off-duty time during the day with complete freedom from all responsibilities, thereby enabling them to use the time effectively for their own purposes.
Such employees, as you have pointed out, are arguably on duty for less than 24 hours. Your specific question is whether the sleep time of such employees can be deducted from working time.
Under the particular circumstances you have described, we believe that such sleep time can be deducted from hours worked, provided that the employer and employees agree in advance to do so, and that no more than 8 hours per night (or actual, uninterrupted sleeptime, if that is less than 8 hours) is deducted. We have reached this conclusion, which represents a departure from the general rule under 29 C.F.R. 785.21, because of the home-like environment afforded to these employees in community residences, with private quarters and other amenities. Even where employees sleep over for only one or two nights, there are ample facilities to enable them to get a full night's sleep.
In situations falling within the general rule which forbids the deduction of sleep time, the demands of the job have seriously interfered with the employee's ability to sleep, or the sleeping facilities have been minimal. Here, however, because of the home-like environment, an exception can be made where employees do in fact get a reasonable night's sleep. In other words, under the...
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