Prendergast v. City of Tempe, 1

• Decision Date: 25 September 1984
• Docket Number: CA-CIV,No. 1,1
• Citation: 691 P.2d 726,143 Ariz. 14
• Court: Arizona Court of Appeals
• Parties: , 27 Wage & Hour Cas. (BNA) 58 Richard W. PRENDERGAST, Anthony R. Canning and Steven L. Raether, on behalf of themselves and all others similarly situated and Tempe Lodge # 11; Fraternal Order of Police, Inc., Plaintiffs-Appellees, v. CITY OF TEMPE, a municipal corporation; Kenneth McDonald, in his official capacity as City Manager of Tempe, Arizona, Defendants-Appellants. 6542.

Page 726

691 P.2d 726

143 Ariz. 14, 27 Wage & Hour Cas. (BNA) 58

Richard W. PRENDERGAST, Anthony R. Canning and Steven L. Raether, on behalf of themselves and all others similarly situated and Tempe Lodge # 11; Fraternal Order of Police, Inc., Plaintiffs-Appellees, v. CITY OF TEMPE, a municipal corporation; Kenneth McDonald, in his official capacity as City Manager of Tempe, Arizona, Defendants-Appellants.

No. 1 CA-CIV 6542.

Court of Appeals of Arizona,

Division 1, Department A.

Sept. 25, 1984.

Review Denied Dec. 4, 1984.

McGroder, Pearlstein, Peppler & Tryon, P.C. by Patrick J. McGroder, III, Phoenix, for appellees

David R. Merkel, Tempe City Atty., Vincent A. Iannone, Asst. City Atty., Tempe, for appellants.

OPINION

GRANT, Presiding Judge.

Plaintiffs-Appellees brought a class action to secure a declaratory judgment that the thirty-minute meal period provided to City of Tempe police officers assigned to traffic or patrol division, from March 14, 1979 to December 31, 1980, constituted work for overtime purposes pursuant to A.R.S. § 23-392(A). The complaint also sought an accounting and an award of damages for overtime pay. The trial court entered judgment for the certified class and against appellant, the City of Tempe (City), holding that the meal period constituted compensable work time. Damages were determined to be $250,775.50 plus attorneys' fees, prejudgment interest and costs.

On appeal the City raises the following issues:

1. Whether the meal period constitutes work for purposes of A.R.S. § 23-392(A);

2. Whether appellees are entitled to money damages for the previously uncompensated meal periods;

3. Whether the trial court erred in awarding attorneys' fees;

4. Whether the trial court erred in awarding pre-judgment interest.

The facts are not in dispute. Prior to 1975 the City compensated its uniformed police officers assigned to patrol and traffic divisions for their thirty-minute meal period. In 1975, however, the City amended its city ordinance to provide:

Law enforcement employees shall eat lunch on their own time. Law enforcement employees shall be allowed to cease work for lunch at a time designated by their Department Head and shall not be paid for such time .... They are subject to and shall respond to all calls and assignments during lunch periods. Any part or all of the thirty minute lunch period not received because of calls and assignments shall count towards satisfying the normal daily tour-of-duty or work schedule ....

Tempe, Ariz., Ordinance no. 636, rule 17, § 19(C). Thereafter, the normal tour-of-duty consisted of eight compensated hours and a one-half hour uncompensated meal period, unless the officer responded to a call or assignment. This policy remained in effect until January 1, 1981, after which the City again compensated uniformed patrol and traffic division police officers for their thirty-minute meal time, whether or not they responded to a call or assignment.

This action was instituted on March 14, 1980. The complaint sought a declaration that, due to restrictions placed upon uniformed officers of the patrol and traffic divisions, the meal period for such police officers constituted work for overtime purposes of A.R.S. § 23-392(A). The plaintiffs also sought an accounting and damages for back pay for such work. On July 24, 1980, the cause was certified as a class action. Cross-motions for summary judgment on the issue of liability were filed. The parties agreed that there were no disputed material issues of fact, but reached opposite conclusions of law from the undisputed facts. The lower court granted partial summary judgment in favor of the plaintiff class holding that:

[T]hese plaintiffs are on duty and substantially performing the objectives of their employment, for the benefit of their employers.

Pursuant to stipulation between the parties an accounting was conducted which established the City's liability at $250,775.50. Final judgment was entered in favor of the plaintiff class on April 21, 1982. This appeal followed:

I. WORK TIME

A.R.S. § 23-392(A) provides:

Any person engaged in law enforcement activities shall be compensated for each hour worked in excess of forty hours in one work week, at the option of such employer either at a rate of:

1. One and one-half times the regular rate at which he is employed; or

2. One hour of compensatory time off in lieu of cash payment.

The legislature did not define what constitutes "work" for purposes of this section. The City argues that, since the legislature failed to define "work," as a home rule municipality it may define the term as it chooses. Alternatively, the City asserts that the parties are free to determine what constitutes work and that by ordinance, which is implied in the contract between the plaintiff class and the City, the parties did so. Finally, the City posits that the proper interpretation of work should focus on whether the officers were performing their duties during the meal period. Under this standard, the City argues, the meal period should be considered non-compensable time.

The City contends that in the absence of a statutory definition of work, municipalities are free to define the term for itself. The City of Tempe is a charter or "home rule" municipality pursuant to article 13, § 2 of the Arizona Constitution. A charter city may exercise all powers authorized by its charter, except where such an exercise is inconsistent with out state constitution or the general laws of this state. State v. Jacobson, 121 Ariz. 65, 588 P.2d 358 (App.1978); A.R.S. § 9-284(B) (Supp.1983). Where a subject is of statewide concern and the legislature has appropriated the field by enacting a statute pertaining thereto, any conflicting ordinances are invalid. State v. Jacobson; Shaffer v. Allt, 25 Ariz.App. 565, 545 P.2d 76 (1976). Where, as here, there is no direct conflict between an ordinance and state statutes, we inquire whether the state legislation has so completely occupied the field that it becomes the sole and exclusive law on the subject. State v. Jacobson.

In Gilbert v. County of Mohave, 133 Ariz. 209, 650 P.2d 511 (App.1982), this court held:

[W]e find that the matter of compensation to law enforcement personnel in Arizona is one of statewide concern and we further find that the legislature has appropriated the field by virtue of A.R.S. § 23-392 (Supp.1981).

Id. at 211, 650 P.2d at 513. We reaffirm this holding. Municipalities, such as the City of Tempe, are not at liberty to define the term "work" as it is used in A.R.S. § 23-392(A). The Arizona Legislature has mandated that law enforcement personnel receive compensation for all overtime worked. The city may not take away this compensation. Gilbert v. County of Mohave.

The City's second argument is also without merit. Where the legislature requires compensation for overtime, such requirement cannot be waived or substituted even by agreement between the parties. Id. See also Mumbower v. Callicott, 526 F.2d 1183 (8th Cir.1975); Wirtz v. Bledsoe, 365 F.2d 277 (10th Cir.1966); Lerwill v. Inflight Services, Inc., 379 F.Supp. 690 (N.D.Cal.1974); Farley v. United States, 127 F.Supp. 562, 131 Ct.Cl. 776 (1955); Abbott v. Beatty Lumber Co., 90 Mich.App. 500, 282 N.W.2d 369 (1979).

It is true, as the City of Tempe points out, that courts have stated, "[a]n employer and his employee may agree as to whether or not certain activity constitutes work within the Act [FLSA]." Hofler v. Spearin, Preston & Burrows, Inc., 51 Misc.2d 758, 273 N.Y.S.2d 863 (1966). See also Donovan v. Williams Chemical Co., 682 F.2d 185 (8th Cir.1982); Bowers v. Remington Rand, Inc., 159 F.2d 114 (7th Cir.1946), cert. denied, 330 U.S. 843, 67 S.Ct. 1083, 91 L.Ed. 1288 (1947). In Skidmore v. Swift & Co., the United States Supreme Court held:

The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was.

323 U.S. at 137, 65 S.Ct. at 163, 89 L.Ed. at 128. These cases do not hold, as the City urges, that employers and employees can agree ¹ to classify as non-work, what is in reality work. To do so would be to permit waiver of the rights guaranteed under the Fair Labor Standards Act (FLSA) or Federal Equal Pay Act (FEPA), or A.R.S. § 23-392(A). These cases hold that employers and employees are free to bargain and agree upon the normal duties of the employees for each individual position, such duties constituting the work of the employee. Once this process is complete in the context of law enforcement personnel as provided in A.R.S. § 23-392, and a job description can then be compiled, the law requires compensation for any overtime worked.

Finally, we reach the gravamen of this appeal: What is the standard to be applied to determine whether an employee is working for A.R.S. § 23-392(A) purposes? The plaintiff class urges this court to apply a standard focusing on whether the restrictions placed on the employees, during the time in question, for the employer's benefit, render such time "work." This standard is derived from cases arising under the FLSA, 29 U.S.C. § 207. ² The plaintiff class points out that Division Two of this court, in Hockersmith v. City of Patagonia, 123 Ariz. 559, 601 P.2d 322 (App.1979), relied on cases decided under the FLSA in an appeal involving A.R.S. § 23-392(A).

The City responds that rather than focusing on the restrictions placed upon the employee, this court should follow the lead of the Appeals Court of Massachusetts in Erickson v. City of Waltham, 2 Mass.App. 436, 314 N.E.2d 139 (1974), and inquire whether employees were substantially performing their normal duties during the time in question. This standard arose in cases decided under the FEPA, 5 U.S.C. 5542. ³ The City contends that focusing on the performance of duties is a better approach than reviewing the restrictions imposed on employees. In support of its position the City points out that under the FLSA special provisions...