Kohlheim v. Glynn County, Ga.
| Decision Date | 15 October 1990 |
| Docket Number | No. 89-8386,89-8386 |
| Citation | 915 F.2d 1473 |
| Parties | 29 Wage & Hour Cas. (BN 1673, 117 Lab.Cas. P 35,413, 17 Fed.R.Serv.3d 1130 Robert W. KOHLHEIM, et al., Plaintiffs-Appellants, Cross-Appellees, v. GLYNN COUNTY, GEORGIA, a political subdivision of the State of Georgia, Defendant-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Fletcher Farrington, Farrington & Abbot, Savannah, Ga., Amanda F. Williams, Brunswick, Ga., for plaintiffs-appellants, cross-appellees.
Thomas J. Lee, S. Wesley Woolf, St. Simons Island, Ga., for defendant-appellee, cross-appellant.
Appeals from the United States District Court for the Southern District of Georgia.
Before COX, Circuit Judge, HILL * and SMITH **, Senior Circuit Judges.
This action was instituted by 71 presently or formerly employed firefighters and emergency medical technicians 1 against Glynn County, Georgia, to recover back pay, liquidated damages, attorney fees and costs for the county's alleged failure to pay certain regular time and overtime wages in violation of applicable provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 207. The parties filed cross motions for summary judgment on several FLSA issues and submitted briefs concerning the proper construction of the Glynn County personnel ordinance. After ruling on the summary judgment motions and construing the personnel ordinance the district court certified the questions decided to this court under 28 U.S.C. Sec. 1292(b).
First, we hold that the firefighters' mealtimes must be included as hours worked for overtime purposes. Second, the court finds that the county personnel ordinance establishes an annual salary for the firefighters; the portion of this salary applicable to a work period must be divided by the number of hours actually worked to determine the regular rate for computing overtime under FLSA regulations. Third, we find that the county is entitled to set off all previously paid overtime premiums against any compensation found to be due and owing under this standard.
In Garcia v. San Antonio Metro. Transit Auth. the Supreme Court found the FLSA applicable to states and municipalities. 2 Under subsequent legislation Congress made April 15, 1986 the effective date of the FLSA's application to state and local governments. 3 Glynn County updated its employment practices in 1985 to conform to the provisions of the new legislation, but in the present case the firefighters contend that the county has been in violation of the overtime pay requirements of the FLSA since that date.
The facts pertinent to this appeal are as follows: Prior to 1985 firefighters and emergency medical technicians in Glynn County worked 24 hour "tours of duty" separated by 48 hours of off-duty time. Each employee was expected to work a minimum of 122 tours per year, which when multiplied by the number of hours in each tour (24), yielded a total of 2928 yearly work hours. To ensure compliance with the FLSA the county initially effectuated a change in the manner in which it accounted for compensated hours by increasing the tour of duty to 24.2 hours. 4 Each firefighter was still required to work a 24.2 hour tour of duty every three days--one tour of duty followed by two days off, so the changes ultimately affected only the methods for computing regular and overtime compensation due. Each firefighter's regular weekly paycheck was unchanged by the new wage and hour system.
This schedule resulted in a six week cycle with: (1) two bi-weekly periods, each with five scheduled tours of duty (121 total compensated hours); and (2) one bi-weekly period with four scheduled tours of duty (96.8 total compensated hours). The straight time pay for each regularly scheduled tour was calculated with reference to an annual pay rate contained in a graded pay scale adopted in 1981 under the guidelines of the county's personnel ordinance. On the scale each grade and step carries a published rate of pay stated in hourly, weekly, monthly, and annual terms. The weekly straight time pay for each firefighter is calculated by simply dividing the reported annual rate for his/her particular grade by 52.
The calculation of total "hours worked" for reporting accumulated overtime operates on a different scale from that described above. For the purpose of calculating accumulated overtime hours only, three meal time hours were excluded from each 24.2 hour shift, so each tour of duty comprised 21.2 reported hours. So, in bi-weekly periods covering five scheduled tours of duty, 15 hours were excluded from the 121 compensated hours, which resulted in 106 "hours worked" for the purpose of calculating overtime. Likewise, in bi-weekly periods covering four scheduled tours, 12 hours were excluded from the 96.8 compensated hours, which resulted in 84.8 "hours worked". The FLSA mandates the payment of 1 1/2 times the "regular rate" of pay for overtime, and the method of calculation for this rate is set forth in the regulations. However, the county instead chose to compensate the firefighters for overtime at 1 1/2 times an artificial hourly rate ("2928 rate"), which was determined by dividing the annual salary from the pay scale by the number of yearly compensated hours, 2928.
On June 23, 1988, the plaintiffs brought suit in federal district court against the county under the FLSA. The complaint alleged in substance that the defendant county had unlawfully excluded mealtimes in calculating the "hours worked" for overtime purposes, and sought to recover back pay, liquidated damages, attorney fees and costs. The plaintiffs later amended their complaint and added a related claim grounded in Georgia state law, which asserted that the defendants had failed to pay them the hourly rate of pay specified in the county personnel ordinance.
After some discovery, on January 31, 1989 plaintiffs moved for partial summary judgment, presenting the issue whether the county's practice of excluding three hours of mealtime from the number of "hours worked" for overtime purposes violated the FLSA. The district court, Alaimo, J., granted the motion and held that since firefighters remain on the employer's premises subject to call for emergencies during mealtime, such mealtime must be included as "hours worked" for the purpose of calculating overtime. 5
Later the defendant county moved for summary judgment on all the remaining FLSA issues. The motion did not specifically mention the state law contract claim arising out of the county personnel ordinance, nor was a statement included that concisely set forth the facts on that claim asserted to be undisputed by the county as moving party. 6 Plaintiffs responded by filing a cross motion for summary judgment on the grounds that the county had improperly calculated the "regular rate" of salary compensation under the FLSA. 7 The case was then assigned to Judge Vining of the Northern District of Georgia. After the assignment defendants filed a series of three supplemental briefs in support of the motion for summary judgment on the state law contract issue. Plaintiffs responded to the issues presented in each brief.
On April 3, 1989 Judge Vining entered an order denying defendant's summary judgment motion on the majority of the FLSA issues on the grounds that material facts remained in dispute. On the plaintiffs' cross motion for summary judgment the court held for defendants and determined that the "regular rate" of compensation was to be calculated by dividing the number of hours actually worked in a work period into the amount of pay received during that work period. On the contract claim the court essentially adopted defendant's position and held that since the firefighters were salaried employees, the amount of pay received was to be calculated based on an hourly rate derived from the annual salary set forth in the personnel ordinance. The court also agreed that the county was entitled to "credit" for previously paid overtime premiums which were in excess of 1 1/2 times the calculated regular rate.
On April 4, 1989, the district court certified its orders of January 31, 1988 and April 3, 1989 for interlocutory appeal under 28 U.S.C. Sec. 1292(b). This court granted the petition for permission to appeal on May 18, 1989. On appeal each party contests those portions of the district court's orders adverse to their respective interests.
Under Fed.R.Civ.P. 56(c), summary judgment is only appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." 8 In evaluating a summary judgment motion, the burden of establishing the absence of a material dispute of fact is borne by the moving party; the reviewing court must view all evidence in the light most favorable to the non-movant and resolve all reasonable doubts about the facts in favor of the non-movant. 9
When a district court certifies orders for interlocutory appeal under 28 U.S.C. Sec. 1292(b), all questions material to those particular orders are properly before the court of appeals. 10
The FLSA generally requires an employer to pay overtime compensation to employees for all "hours worked" over 40 in a work week; however, 29 U.S.C. Sec. 207(k) contains special requirements applicable only to public policemen and firefighters. Firefighters are not entitled to premium compensation until 212 "hours worked" accrue in a 28 day period. 11 The special provisions applicable to public firefighters under Sec. 207(k) follow from their special status as "tour of duty" employees. According to administrative regulations interpreting the FLSA the term tour of duty is a unique concept applicable only to public employees covered under Sec. 207(k). 12 A tour of duty is "the period of time during which an employee is considered to be 'on duty' for the purposes of...
To continue reading
Request your trial
-
Anderson v. Perdue Farms, Inc.
...to be compensable under the FLSA when employees continue to have job responsibilities during their breaks. See Kohlheim v. Glynn County, 915 F.2d 1473, 1477 (11th Cir.1990) ("[T]he essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest ......
-
Reich v. Southern New England Telecommunications Corp.
...duty" standard, focuses on whether an employee is actually completely free of any work-related tasks, see, e.g. Kohlheim v. Glynn County, Ga., 915 F.2d 1473 (11th Cir.1990); Rotondo v. City of Georgetown, S.C., 869 F.Supp. 369 (D.S.C.1994), and generally has been applied in non-law enforcem......
-
Lugo v. Farmer's Pride Inc.
...during a meal period when the employee's time is not spent predominantly for the benefit of the employer”); Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1477 n. 19 (11th Cir.1990) (test for compensable meal periods is “whether the employees are subject to real limitations on their personal......
-
Singer v. City of Waco, Tex.
...(finding that "offsets [under § 207(e)(5) and (6)] should be calculated on a period by period basis"); but see Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1481 (11th Cir.1990) (stating that an employer should be permitted to offset "all previously paid overtime premiums... against overtim......
-
For Whom Does the Clock Tick Public Employers' Liability for Overtime Compensation Under Federal Law
...Alexander, 994 F.2d at 337; Lee v. Coahoma County, Miss., 937 F.2d 220, 225 (5th Cir.1991). [FN64]. Cf. Kohlheim v. Glynn County, Ga., 915 F.2d 1473, 1477 (11th Cir.1990) (firefighters required to remain at the station and subject to emergency calls during mealtime periods entitled to compe......