Specht v. the City of Sioux Falls

• Decision Date: 11 May 2011
• Docket Number: No. 10–1733.,10–1733.
• Citation: 639 F.3d 814
• Parties: Micheal SPECHT, Mark Donelan, Mark Egger, James Haiar, Bo Mortensen, Jim Powers, Jason Schiebout, Grant Van Riesen, Trent Boe, Bob Dykstra, Rocky Foster, Jon Kolba, Wade Mulder, Nathan Ruml, Bob Vosburg, and Scott Schiltz, Appellants,v.The CITY OF SIOUX FALLS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

639 F.3d 814

161 Lab.Cas. P 35,903

17 Wage & Hour Cas.2d (BNA) 1159

Micheal SPECHT, Mark Donelan, Mark Egger, James Haiar, Bo Mortensen, Jim Powers, Jason Schiebout, Grant Van Riesen, Trent Boe, Bob Dykstra, Rocky Foster, Jon Kolba, Wade Mulder, Nathan Ruml, Bob Vosburg, and Scott Schiltz, Appellants,

v.The CITY OF SIOUX FALLS, Appellee.

No. 10–1733.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 17, 2010.Filed: May 11, 2011.

Thomas K. Wilka, argued, Sioux Falls, SD, for appellant.Lisa Marso, argued, Jason R. Sutton, on the brief, Sioux Falls, SD, for appellee.Before SMITH, BEAM, and BENTON, Circuit Judges.SMITH, Circuit Judge.

Firefighter Michael Specht of the City of Sioux Falls's Fire Rescue Department (SFFR) and 15 other SFFR firefighters filed suit against the City of Sioux Falls (“the City”), seeking overtime compensation under the Fair Labor Standards Act (FLSA) for work performed at the request of the State of South Dakota (“the State”) to help fight wildfires in western South Dakota and Nebraska. The district court ¹ granted summary judgment to the City, finding that the special detail exemption of the FLSA, 29 U.S.C. § 207(p)(1), applied because (1) the City firefighters volunteered for the State firefighting assignment and (2) the State and the City are separate and independent employers; as a result, the hours that the firefighters worked for the State are not combined with the hours worked for the City for purposes of overtime compensation. We now reverse.

I. Background

In July 2006, Ricky Larsen, Chief of SFFR, received a call from the State fire dispatch requesting assistance in battling wildfires. The City provides wildland firefighting services to the State pursuant to the State of South Dakota Fire Suppression Agreement (“the Agreement”). The Agreement, which refers to the City as “CONTRACTOR,” provides, in relevant part, that the

City/CONTRACTOR must be reimbursed for all wage expenses it incurs ( including all overtime and backfill wages ) in order to address city budgetary concerns ( resulting from city's independent contractual obligations to its firefighters ) and has determined that it will not provide personnel unless this agreement is in effect. State agrees to pay such sums solely as a result of city's demand for such payments and is not a party to any union contract or other employment arrangements between city and its employees.

(Emphasis added.) It also provides that the State agrees to compensate the City “for personnel and equipment provided to the Wildland Fire Coordinator at his request,” and the City agrees to, inter alia, “guarantee to the State of South Dakota that all liability insurance and workmen's compensation benefits available to firefighters and equipment of the CONTRACTOR is in full force and provides coverage to the persons and equipment provided to the STATE under the terms of this agreement.” According to the Agreement, the City “agrees to indemnify and hold the State of South Dakota, its officers, agents and employees, harmless from and against any and all actions, suits, damages, liability or other proceedings that may arise as a result of performing services hereunder.”

As to clothing and safety equipment, the Agreement states that “[t]he Contractor [City] shall ensure that all firefighters have the [enumerated] fire safety clothing and personal fire fighting equipment when responding to a fire....” With respect to personnel, the State agrees to compensate the City “for personnel according to the function they fill on an incident.” The City must provide the State “with a list of employees holding current red cards and will specify the base hourly rate of salary for each of such employees.” The compensation provision of the Agreement provides as follows:

When the Wildland Fire Coordinator directs forces dispatched under this agreement to a fire, the contractor responding shall be compensated from the time and point of dispatch at the rates set forth in the Interagency Incident Business Management Handbook for the Rocky Mountain/Great Basin Coordinating Groups as amended by Interim Directive No. 5109.34–2005–1 and any subsequent amendments thereto until the time of release from services to the Wildland Fire Coordinator. The STATE will apply the version of regional rates which are in effect at the time of dispatch except that all guaranteed minimums in the Handbook are excluded from application to this agreement and specific rates set forth herein supersede regional rates. However, [t]he CONTRACTOR will be fully reimbursed for all wage expenses it actually incurs as a result of its personnel assisting the Wildland Fire Coordinator including all overtime and backfill wages. In computing the total costs of personnel wages owed to the city, the State will receive credit for any wages paid in conjunction with equipment rates. Hourly compensation for CONTRACTOR'S personnel assigned to a fire in conjunction with equipment will be deducted from the equipment rate to prevent duplicate compensation for personnel, when equipment rates include a specified number of personnel.

(Emphasis added.) The State also agrees that “[r]eimbursement of lodging and meals for Contractor personnel will be based on per-diem rates and rules established for the State of South Dakota. As to “Compensation Rates for Contractor Personnel,” the State will compensate the City “for personnel at the rates” set forth in a designated handbook. (Emphasis added.)

After receiving the call from the State, Larsen asked Division Chief Corky Miles to find volunteers to go on the deployment. The department maintained a list of SFFR firefighters who were wildland firefighter certified, as wildland certification is not mandatory for the SFFR firefighters. Specht, an SFFR firefighter, described the procedure for calling the list. The list begins with the person who has the fewest number of hours. If this individual is unavailable when called, the caller leaves a message and waits five minutes for a response. If no response, the caller proceeds to the next person on the list. Once the calling list is exhausted and there are still insufficient volunteer firefighters, the Chief may call and require participation of available employees.

Article 34, § 4 of the collective bargaining agreement between the City and the SFFR firefighters provides that “[t]he City retains the right to require an employee to work extra duty after making a reasonable effort to obtain a qualified volunteer.”

On July 28, 2006, SFFR firefighters were contacted about volunteering for the deployment. The Emergency Recall Personnel Forms reflect that, in response to the call, several of the firefighters said “yes” to the deployment and several said “no.” ² The list was not called a second time. Ultimately, six firefighters—Specht, Jim Powers, Bob Vosburg, Wade Mulder, Grant Van Riesen, and Trent Boe—were initially deployed to Rapid City, South Dakota, to assist in battling the East Ridge fire in the Black Hills.

When Specht reported to headquarters for the deployment, Miles gave him a SFFR credit card. Specht asked Miles which battalion chief he should call with recorded work times. Miles responded that the firefighters need not call in times on a daily basis and need not fill out timesheets for their normal shift days because they were going to be credited for their full 24–hour normal shifts and would settle overtime when they returned. According to Miles, the firefighters need only complete timesheets for hours actually worked during their normal off-shift days. Specht was instructed to fill out the Weekly Time Sheet (WTS) for time outside of his 24–hour shift.³ Also during deployment, the firefighters had to fill out the South Dakota Fire Department Crew/Equipment Time Report (CTR); this form is used for billing purposes to ensure that the State reimbursed SFFR. According to SFFR's Standard Operating Procedures 810.1, the firefighters were to record all on-shift time on the CTR. ⁴

The firefighters left Sioux Falls without sufficient safety equipment. Thus, while on assignment, they had to either borrow or purchase the equipment. After they arrived in Rapid City, the firefighters were diverted to Chadron, Nebraska, to assist in fighting the Dawes County Complex fires. On August 4, 2006, the firefighters left Chadron and returned to Rapid City to assist in fighting the White Owl, South Dakota fire. On August 5, 2006, there was a crew rotation, with John Kolba, Rocky Foster, and Scott Schiltz replacing Powers, Van Riesen, and Boe. Powers took the WTS's for the week of July 30, 2006, and the CTR's for the Dawes Complex to Sioux Falls. Another crew rotation occurred on August 9, 2006, with Mark Donelan, Bob Dykstra, and Nathan Ruml replacing Specht, Vosburg, and Mulder. Specht turned in the remaining WTS's and CTR's when he returned to Sioux Falls.

On August 12, 2006, Specht returned to his regularly scheduled shift in Sioux Falls. He reviewed TeleStaff, the computer software, for the shifts occurring while he was deployed. The records reflected hours worked for the entire regular shift, in addition to the time recorded on the WTS's. On August 17, 2006, Specht printed copies of TeleStaff records showing that he was going to get paid for each of his normal 24–hour shifts during the time that he was deployed. Thereafter, SFFR Clerk Cindy Konda informed Specht that Larsen told her to change the way that the hours were counted. Specht responded that Konda should talk with the employees before changing the hours because the employees' understanding, per Miles's direction, was that they were already “on the clock” during their normal shifts, meaning that there would be hours of work that did not show up in the CTR's or WTS's.

On August 18, 2006, Specht received his pay statement showing that he had been paid $2,001.19 in overtime pay, which was equal to 59.5 hours of overtime. His pay cycle had ended on August...