Quirk v. Baltimore County, Md.

Decision Date18 August 1995
Docket NumberCiv. No. B-90-2983.
Citation895 F. Supp. 773
PartiesJohn QUIRK, on behalf of himself and all other employees of Baltimore County, Maryland similarly situated, et al. v. BALTIMORE COUNTY, MARYLAND.
CourtU.S. District Court — District of Maryland

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Francis J. Collins and Andrew H. Kahn, Baltimore, MD, for plaintiffs.

Mary E. Pivec and Stanley Shapiro, Baltimore, MD, for defendant.

WALTER E. BLACK, Jr., Senior District Judge.

Presently pending before the Court are plaintiffs' Motion for Summary Judgment and defendant's Cross Motion for Summary Judgment. This lawsuit was filed by over 150 Emergency Medical Service Personnel (hereinafter "EMS personnel") of the Baltimore County Fire Department seeking compliance with the overtime provisions of the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 207(a)(1). On a previous summary judgment motion, the Court determined that EMS personnel were not employees engaged in fire protection activity under the provisions of § 7(k) of the Act, 29 U.S.C. § 207(k), and, therefore, that the County must pay overtime after 40 hours rather than after 53 hours.

These cross motions for summary judgment address all remaining issues regarding overtime compensation. Plaintiffs contend that they are due overtime compensation for all hours worked in excess of forty hours per week because they do not fall within the exemptions from overtime for professional, executive, or administrative employees. The County agrees that emergency medical technicians do not fall within any of the exemptions from the requirement; however, the County contends that captains are exempt as executives, and that paramedics and lieutenants with paramedic certification are exempt as professionals. Plaintiffs also contend that they are entitled to liquidated damages and a three-year statute of limitations, while defendants argue that liquidated damages are inappropriate and that the applicable statute of limitations is two years. Finally, the parties disagree over the appropriate method of calculating damages.

I

Section 7(a)(1) of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1), requires that employees be paid time and a half for work over 40 hours per week. Section 13(a)(1) exempts from that requirement "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). The burden of proving that an employee is exempt from the overtime requirement is on the employer. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974). Overtime exemptions are construed narrowly, against the employer. Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir.1994). This burden must be satisfied by clear and affirmative evidence. Clark v. J.M. Benson Co., Inc., 789 F.2d 282 (4th Cir.1986); Donovan v. United Video, Inc., 725 F.2d 577, 581 (10th Cir.1984).

As the County is claiming exemptions under both the executive and the professional exemptions, it is necessary to review the regulations pertaining to both of those exemptions. The regulations provide both "long" and "short" tests to determine whether an employee fits within the applicable exemption. See 29 C.F.R. §§ 541.1, 541.3. The long test for both exemptions applies to lower-paid employees, while the short test applies to employees making at least $250 per week. Id. Because both sides agree that all plaintiffs earn at least $250 per week, the short test applies for both exemptions.

An employer is exempt from the requirement of paying overtime under the short test to a professional employee

who is compensated on a salary or fee basis at a rate of not less than $250 per week ... and whose primary duty consists of the performance either of work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized instruction and study, as distinguished from a general academic education and from an apprenticeship and from training in the performance of routine mental, manual, or physical processes ..., which includes work requiring the consistent exercise of discretion and judgment....

29 C.F.R. § 541.3(e). The short test for an executive exempts an employee

who is compensated on a salary basis at a rate of not less than $250 per week ... and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein....

29 C.F.R. § 541.1(f). As both tests for exemption require that an employee be paid on a salary basis, the Court will address that issue first.

Salary Basis

The definition of a salaried employee, 29 C.F.R. § 541.118(a), states

An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work.

The regulations then provide three exceptions to the rule that employees must be paid their full weekly salary to qualify for an exemption from overtime: (1) deductions are permissible when the employee is absent for a day or more for personal reasons; (2) deductions are permissible, in accordance with a bona fide plan, when the employee is absent for a day or more for sickness or disability; and (3) penalties for "infractions of safety rules of major significance" are permissible. 29 C.F.R. §§ 541.118(a)(2), (3) and (5). Deductions for absences due to jury duty, temporary military leave, or attendance as a witness are impermissible. 29 C.F.R. § 541.118(a)(4). Until September 18, 1992, deductions for partial day absences were impermissible for salaried employees. See 57 Fed.Reg. 37,666 (1992). However, at that time, due to concern that paying public sector employees for time they did not work was incompatible with public accountability, the Department of Labor issued a new regulation permitting deductions for absences of less than one work-day for public employees. 29 C.F.R. § 541.5d.

Here, the peculiarities of a collective bargaining agreement give the pay scheme attributes of both an hourly and a salary basis. Many courts have struggled with the difficult task of applying rules designed for the private sector to employees of public agencies. In fact, several courts and judges have ruled that part or all of the salary basis test is invalid as applied to the public sector. See Service Employees International Union, Local 102 v. County of San Diego, 35 F.3d 483 (9th Cir.1994), as amended on denial of rehearing, 60 F.3d 1346 (9th Cir.1995); Hilbert v. District of Columbia, 23 F.3d 429, 435 (D.C.Cir.1994) (Henderson, J. concurring in part, dissenting in part); McGrath v. City of Philadelphia, 864 F.Supp. 466, 486 (E.D.Pa. 1994); Stewart v. City and County of San Francisco, 834 F.Supp. 1233, 1238 (N.D.Cal. 1993). The County urges the Court to adopt this logic, or to rule that the interim version of § 541.5d, issued in 1991 but withdrawn by the Department of Labor, was in effect as of 1991.

The basis for the Ninth Circuit's ruling in Service Employees is as follows: The Department of Labor regulations formulating the salary test were promulgated in 1954, when the FLSA did not apply to public employers. In 1974, Congress amended the FLSA to cover public sector employees. Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 6, 88 Stat. 55, 59-63. However, in 1976, the Supreme Court ruled that the application of FLSA to public employees was unconstitutional. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). In 1985, the Supreme Court reversed itself in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), and Congress once again amended the FLSA. Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150, 99 Stat. 787. In these amendments, Congress did not address the issue of whether the salary test should apply to public employees. Congress did state that "the bill extends minimum wage and overtime coverage to about 5 million non-supervisory employees in the public sector." H.R.Rep. No. 913, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837. The Ninth Circuit has interpreted that statement to mean that Congress intended public agencies to have the benefit of the executive and administrative exemptions. Service Employees, 35 F.3d at 487.

Thus, in 1986, public agencies were faced with the difficult task of complying with regulations that were enacted for private sector employers. In 1987, the Department of Labor recognized the problem and stated that it would not enforce that part of the salary basis test prohibiting deductions for absences of less than a day as to public employers. See 57 Fed.Reg. 37,668 (1992). Employees, on the other hand, were still permitted to file suit. Id. A wave of public sector employee lawsuits ensued and, in 1991, the Department of Labor issued an interim regulation altering part of the salary basis test for public employees, retroactive to April 16, 1986. 56 Fed.Reg. 45,824 (1991). In particular, the interim regulation permitted deductions for absences of less than one work-day and permitted deductions caused by budget-required furloughs. Id. However, the interim regulation left all other aspects of the salary...

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