Mullins v. Howard County, Md., Civ. No. PN-88-2774.

• Decision Date: 05 February 1990
• Docket Number: Civ. No. PN-88-2774.
• Citation: 730 F. Supp. 667
• Parties: Benny MULLINS, et al. v. HOWARD COUNTY, MARYLAND.
• Court: U.S. District Court — District of Maryland

730 F. Supp. 667

Benny MULLINS, et al. v. HOWARD COUNTY, MARYLAND.

Civ. No. PN-88-2774.

United States District Court, D. Maryland.

February 5, 1990.

Andrew H. Kahn and Francis J. Collins, Zukerberg & Kahn, P.A., Baltimore, Md., for plaintiffs.

Leonard E. Cohen and Mary E. Pivec, Frank, Bernstein, Conaway & Goldman, Baltimore, Md., and Barbara M. Cook, County Sol., and Richard Basehoar, Asst. County Sol., Howard County, Md., for defendant.

OPINION AND ORDER

NIEMEYER, District Judge.

The plaintiffs, 78 firefighter employees of Howard County, Maryland, have sued Howard County contending that the method by which Howard County paid overtime wages to them during the period August 17, 1986, through July 9, 1988, violated the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-219 (1982). The employees were paid under a plan that averaged payments of straight time and overtime with each bi-weekly paycheck, even though they did not earn the specific amounts paid on a bi-weekly basis. They contend that the averaging of overtime wages as practiced by the defendant is illegal. Presented with cross-motions for summary judgment on this issue, the Court concludes that the method of payment as used by Howard County in the circumstances of this case did not violate the FLSA.

I.

The firefighter employees of Howard County, a political subdivision of the State of Maryland, have traditionally worked one 24-hour shift, followed by off-duty time of two 24-hour shifts. Thus, each employee worked one day and was off two. The shifts were staggered so that firefighters were always on duty.

The firefighters' "work period" consisted of 21 days and during that work period they worked a total of 7 days, or 168 hours, and were off duty the remaining 14 days. The first 159 hours of the total 168 hours worked were designated "straight time" and the final 9 hours were designated "overtime" for which employees were paid one and one-half times the straight time rate. Thus, for example, in a 21-day period a firefighter would work 24 hours straight time each on days 1, 4, 7, 10, 13 and 16. On day 19 the first 15 hours were straight time and the final 9 hours were paid at the overtime rate.

Although the work period was 21 days and overtime was earned only on the last day worked by an employee during that 21-day period, the employees were paid every two weeks, presumably as an administrative convenience to Howard County. Because the work period (consisting of three weeks) and the pay period (consisting of two weeks) did not coincide, Howard County averaged the amounts earned and paid to the employees on each payday so that with each paycheck the employees were paid for 106 hours straight time and 6 hours overtime. A paycheck compensating the employee for this amount was thus received on day 14, which fell at the end of the first two weeks in the work period, and then on day 7 of the following work period. Over a six-week period the employee worked two work periods for a total of 318 hours of straight time and 18 hours of overtime, but he received three paychecks, each of which paid him for 106 hours of straight time and 6 hours of overtime, again totaling 318 hours of straight time and 18 hours of overtime.

In 1987 the International Association of Firefighters, Local 2000 and Howard County negotiated new pay scales based on the historically used methods for paying firefighters described above. They agreed that the specified bi-weekly amounts "were based on an average work week of 53 hours at straight time and 3 hours at time and one-half (168 hours in a 21-day period)." This agreement was effective for the period July 1, 1987, through July 30, 1988.

The plaintiffs now contend that the aspect of averaging that was incorporated in paying the employees 6 hours overtime and 106 hours straight time on each paycheck, rather than paying them specifically for the hours they worked in a given week, caused a temporary shortfall in the payment of overtime and loss of interest for the money not received. Although plaintiffs agree that by the end of two work periods, the total payments equalled the total time worked, in the interim, they contend that the employer fell behind, causing the plaintiffs an illegal loss. More particularly, plaintiffs argue that by the time the first paycheck was received paying them for 106 hours straight time and 6 hours overtime, they actually worked 120 hours straight time and the entire first paycheck would have to be allocated to straight time. Because the pay earmarked for overtime would have to be allocated to straight time, a shortfall in overtime occurred. While they concede that the statute and regulations permit averaging of straight time they argue that overtime must be paid on a current basis. They contend that the plaintiffs are owed $36,370.46 by reason of the shortfall. They also seek an equal amount in liquidated damages pursuant to 29 U.S.C. § 216(b) (1982), plus reasonable attorneys' fees and court costs.

Howard County, on the other hand, contends that the plaintiffs agreed to the County's pay scheme through a collective bargaining agreement. Moreover, the defendant argues that the FLSA does not bar offsets or averaging. Defendant further argues that plaintiffs received far more in overtime payments than they earned. According to the County, plaintiffs actually worked many less hours of overtime than was scheduled because of sick leave, vacations, and other leave. Because of these periods when employees were not working, the threshold for triggering overtime pay, 159 hours per work period, often was not reached. Nevertheless, the County contends that it paid the employees for six hours of overtime and 106 hours of straight time per pay period because these were the expected and scheduled averages. Thus, defendant argues, the employees were paid for overtime that they never worked, resulting in a total overpayment of $233,478.47 to these plaintiffs.

II.

As its first line of defense Howard County contends that its method of averaging wages was agreed to by plaintiffs in the collective bargaining agreement. The record, on which there is no dispute, confirms that plaintiffs' collective bargaining agreement with the County allowed the County to establish a pay plan whereby 6 hours of overtime and 106 hours of straight time would be covered by each paycheck. The exhibits attached to the relevant agreements between the plaintiffs' union and the County contain salary scales that list bi-weekly amounts, which are "based on an average workweek of 53 hours at straight time and 3 hours at time and one half (168 hours in a 21-day period)." See, e.g., Exhibit B to Memorandum of Agreement between Howard County and the International Association of Firefighters, Local 2000, Effective July 1, 1987— June 30, 1988. These salary scales give rise to a reasonable inference that the employees' bi-weekly paychecks could be averaged to 6 hours of overtime and 106 hours of straight time.

Plaintiffs argue that the specific provisions in the agreement dealing with overtime do not contain any mention of averaging the paychecks and that the integration clauses preclude inferring such a term. A reading of the agreement, however, reveals no intent to preclude the possibility of averaging overtime pay. On the contrary, the salary scales listed in the exhibits suggest that averaging is permitted. Because the salary scales attached as exhibits to the agreement are incorporated into the agreement, they are not excluded by the integration clauses. The overtime provisions, while not specifying when payment is to be made, do explain how overtime pay is computed, i.e. that the amounts to be paid are to be based on the average workweek of 53 hours straight time and 3 hours overtime. Additionally, the payment practice of averaging had been in effect for several years before that contract, and this practice was not changed by it. Therefore, the Court agrees with the contention of Howard County that the averaging of overtime complied with the agreement reached with plaintiffs' union.

This, however, does not assure the legality of the County's position. Notwithstanding the agreement, it must still be determined whether the County's pay plan violated the terms of the FLSA. The Supreme Court has held that FLSA rights cannot be waived or otherwise abridged by contract. Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740, 101 S.Ct. 1437, 1444, 67 L.Ed.2d 641 (1981). "Congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation arrangement." Id. at 740-41, 101 S.Ct. at 1445.

Firefighting personnel are subject to § 7(k) of FLSA which allows the employer to select any work period between 7 and 28 days as the basis upon which the employer will calculate overtime wages. 29 U.S.C. § 207(k). Howard County selected a 21-day work period. Within this period the first 159 hours worked are paid for as straight time and the last 9 hours worked are paid for as overtime. Even though the work period is 21 days, the firefighters are paid every 14 days an amount that averages the straight time and overtime of each paycheck at 106 hours and 6 hours, respectively.

Under the FLSA, averaging the straight time payments is permissible. The only requirement for straight time payments is that the work period must remain fixed regardless of how many hours of straight time are actually worked. See, e.g., 29 C.F.R. § 553.224 (1989). This position was explained by the Department of Labor in a Letter Ruling dated October 28, 1986, submitted by defendant as Exhibit E. In that ruling, the Deputy Undersecretary of the Department approved a payment plan for firefighters that called for averaging straight time payments. Under the plan considered, the firefighters worked no more than 192 straight time hours in a 26-day work period. Averaging was permitted as long as the firefighters did not...