Intern. Ass'n of Firefighters v. Rome, Ga.

• Decision Date: 21 March 1988
• Docket Number: Civ. A. No. 4:86-cv-351-HLM.
• Citation: 682 F. Supp. 522
• Parties: INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 349, et al., Plaintiffs, v. CITY OF ROME, GEORGIA, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

682 F. Supp. 522

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 349, et al., Plaintiffs, v. CITY OF ROME, GEORGIA, et al., Defendants.

Civ. A. No. 4:86-cv-351-HLM.

United States District Court, N.D. Georgia, Rome Division.

March 21, 1988.

COPYRIGHT MATERIAL OMITTED

Allan Leroy Parks, Jr. Meals Kirwan Goger Winter & Parks, Atlanta, Ga., for plaintiffs.

Robert Maddox Brinson, Terri Sue Patterson, Brinson Askew & Berry, Rome, Ga., for defendants.

ORDER

HAROLD L. MURPHY, District Judge.

This case is before the Court on the Plaintiffs' Motion for Partial Summary Judgment and the Defendants' Motion for Summary Judgment. Also pending is the Defendants' Motion for Reconsideration of the denial of their Motion To Amend the Answer. For the reasons set forth below, the Defendants' Motion for Summary Judgment shall be GRANTED in part and DENIED in part; the Plaintiffs' Motion for Partial Summary Judgment shall be DENIED; and the Motion For Reconsideration shall be DENIED.

This action was brought by the International Association of Firefighters, Local 349, and individual firefighters of the City of Rome, Georgia, (the firefighters) to recover back pay, liquidated damages, attorney's fees, and costs. The firefighters allege that the City and several of its officials (hereinafter referred to collectively as "the City") have violated the overtime provisions of the Fair Labor Standards Act of 1938, as amended, Pub.L. 99-150, 99 Stat. 787, codified at 29 U.S.C. § 201, et seq. (FLSA). The principal issue presented is whether eight hours of sleep time in the plaintiffs' regularly scheduled tours of duty may be excluded from "hours worked" for computing their overtime under the FLSA. In their complaint, the firefighters allege that the City artificially adjusted the work schedule without their consent to exclude sleep time in violation of the Act. If sleep time were included in the hours worked, overtime compensation would be due under the FLSA.

A brief overview of the FLSA is necessary. It is important to bear in mind that the FLSA is remedial in nature and should be read liberally in favor of workers. See, e.g., H.B. Zachry Co. v. Mitchell, 262 F.2d 546, 549 (5th Cir.1959), aff'd, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753 (1960). Exceptions and exemptions to coverage provisions that preclude the payment of overtime compensation should be construed narrowly against those who seek to avoid overtime liability. See, e.g., Brennan v. Sugar Cane Growers Cooperative of Fla., 486 F.2d 1006, 1011 (5th Cir.1973).

I. The Application of the FLSA to the City of Rome

The FLSA prescribes, inter alia, a certain minimum hourly wage and an overtime rate equal to one and one-half times the regular work wage. See 29 U.S.C. §§ 206, 207. Originally, the Act was not applicable to public employers. 29 U.S.C. § 203(d) (1940). In 1974, however, Congress expanded FLSA coverage to all remaining state and local government employers not then covered by the Act. See 29 U.S.C. § 203(d).

When called to rule upon these amendments, the Supreme Court held them unconstitutional as applied to certain public agency employers involved in administering traditional governmental functions, such as police protection, fire prevention, public health, parks and recreation, etc. See National League of Cities v. Usery, 426 U.S. 833, 851, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245, 257 (1976); overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). The National League of Cities Court reasoned that the Tenth Amendment denied Congress the power to "force directly upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made." National League of Cities, 426 U.S. at 855, 96 S.Ct. at 2476, 49 L.Ed.2d at 259.

Nine years later, in Garcia, the Court overruled National League of Cities. The Garcia Court reasoned that the constitutional test set out in National League of Cities, the determination of whether certain State and local governmental functions were traditional was "unsound in principal and unworkable in practice." Garcia, 469 U.S. at 546, 105 S.Ct. at 1016, 83 L.Ed.2d at 1031.

Cognizant of the far-reaching impact of Garcia, Congress amended the FLSA to delay its application to State and local public sector employers until April 16, 1986. This delay provided these employers approximately one year to make arrangements for implementation of the FLSA requirements.

The new amendments authorized promulgation of new regulations by the Secretary of Labor. The federal agency charged with administering the Act is the Wage and Hour Division of the Department of Labor (W & H).

A. The FLSA Overtime Provisions for Firefighters

Section 7(k) of the Act, 29 U.S.C. § 207(k), provides an exception to the general provisions that prescribe a 40-hour work week and overtime compensation for hours worked above 40. Section 7(k) recognizes the unique work demands of firefighters and provides that public fire protection employers shall not have violated the maximum hour and overtime provisions of the Act if overtime of one and one-half times the regular hourly rate is paid for any hours above 212 worked in a 28-day work period. See id. The applicable regulations that implemented section 7(k) of the statute are found at 29 C.F.R. § 553.221 (1987).¹

For calculating compensable hours worked, the regulations adopt the concept of a "tour of duty" rather than the traditional work day:

The term "tour of duty" ... as used in section 7(k), means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours. It may be a scheduled or unscheduled period. Such periods include "shifts" assigned to employees often days in advance of the performance of the work. Scheduled periods also include time spent in work outside the "shift" which the public agency employer assigns.

29 C.F.R. § 553.220 (1987).

Compensable hours of work generally include all of the time during which an employee is on duty on the employer's premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employees' principal activity or which are closely related to the performance of the principal activity....

29 C.F.R. § 553.221(b) (1987).

B. The FLSA's Provisions on Sleep Time of Firefighters

The general rule regarding sleep time of firefighters is that during such time firefighters are "engaged to wait," are engaged primarily for the benefit of the employer, and should be compensated for such hours. Section 552.222 provides, however, that sleep time of public agency firefighters may be excluded in certain circumstances:

(b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensable hours of work where (1) the employee is on a tour of duty of less than 24 hours ..., and (2) where sic the employee is on a tour of duty of exactly 24 hours, which is a departure from the general rules in Part 785.

(c) Sleep time can be excluded from compensable hours of work of firefighters who are on a tour of duty of more than 24 hours, but only if there is an express or implied agreement between the employer and the employees to exclude such time. In the absence of such an agreement, the sleep time is compensable.

29 C.F.R. § 553.222 (1987) (emphasis added). Thus, the City legally could exclude sleep time from compensable hours worked only if both of these conditions were met: the existence of a tour of duty of more than 24 hours and the existence of an agreement with the firefighters to exclude sleep time from hours worked.

II. The Implementation of the FLSA Provisions by the City of Rome

Prior to July 15, 1985, the City operated a work schedule for its firefighters of 24 hours on duty, alternating with 48 hours off duty. Firefighters were free to sleep during the 24-hour shift, and sleeping quarters were provided. Firefighters were hired and paid on the basis of an annual salary. If required to work in excess of their assigned shifts, they were paid an overtime wage based on their effective hourly wage.

On July 10, 1985, subsequent to Garcia, but nine months prior to the effective date of the FLSA, the City informed all fire department employees, by memorandum, that, as of July 15, 1985, the work schedule would be changed to comply with the FLSA.

The new schedule would comprise tours of duty of 24 hours and 15 minutes on duty, alternating with 47 hours and 45 minutes off duty. Eight hours of sleep time would be deducted from the tour of duty in computing the number of hours worked for overtime payment. The 15-minute increase in the tour of duty and the exclusion of sleep time were said to be in compliance with the regulations. The firefighters' annual salary would remain unchanged because the increase in the length of the shift of 15 minutes did not warrant an increase in compensation.

The amount of opposition to this new policy is disputed. In affidavits filed in this action, City Manager John Bennett and Personnel Director Diane Smith state that 29 objections were received from the firefighters. The City responded with another memorandum explaining its reasons for the changes. The City alleges that after publication of this memorandum, no other objections were received.

The firefighters assert that many more firefighters objected and made known to the City the widespread disapproval of the policy. Numerous affidavits from individual firefighters have been filed, which attest that their objections to the policy were made known to the City prior to the adoption of the new plan.

III. The Validity of the New Tour of Duty and the Agreement to Exclude Sleep Time

The firefighters challenge the City's actions on two main...