Spires v. Ben Hill County, 90-8882
| Decision Date | 04 January 1993 |
| Docket Number | No. 90-8882,90-8882 |
| Citation | 980 F.2d 683 |
| Parties | , 124 Lab.Cas. P 35,762, 1 Wage & Hour Cas.2d (BNA) 300 Fred SPIRES, Jr., Plaintiff-Appellee, v. BEN HILL COUNTY, d/b/a Ben Hill Emergency Medical Service, the Ben Hill County Commissioners, Ed Drexler, Freddie Sawyer and John Bishop, individually and in their official capacity as Commissioners, Defendants-Appellants. David Allen SANDERS, Plaintiff-Appellee, v. BEN HILL COUNTY, d/b/a Ben Hill Emergency Medical Service, the Ben Hill County Commissioners, Ed Drexler, Freddie Sawyer and John Bishop, individually and in their official capacity as Commissioners, Defendants-Appellants. Ray L. MERCER, Plaintiff-Appellee, v. BEN HILL COUNTY, d/b/a Ben Hill Emergency Medical Service, the Ben Hill County Commissioners, Ed Drexler, Freddie Sawyer and John Bishop, individually and in their official capacity as Commissioners, Defendants-Appellants. Suzy Stone MERCER, Plaintiff-Appellee, v. BEN HILL COUNTY, d/b/a Ben Hill Emergency Medical Service, the Ben Hill County Commissioners, Ed Drexler, Freddie Sawyer and John Bishop, individually and in their official capacity as Commissioners, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Mary Mendel Katz, Thomas F. Richardson, Chambless Higdon & Carson, Macon, Ga., Robert W. Chasteen, Jr., Mills & Chasteen, P.C., Fitzgerald, Ga., for defendants-appellants.
John Edward Smith, III, Jay Sherrell & Smith, Fitzgerald, Ga., for plaintiffs-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before HATCHETT and DUBINA, Circuit Judges, and CLARK, Senior Circuit Judge.
This appeal presents the question whether defendant-appellant Ben Hill County, Georgia is liable under the Fair Labor Standards Act of 1938 1 ("FLSA") to plaintiff-appellees, employed as Emergency Medical Technicians, for overtime pay, and, if so, how such pay should be calculated under this Act and its supporting regulations. This case is decided along with O'Neal et al. v. Barrow County Board of Commissioners et al., reported at 980 F.2d 674, which presents similar questions concerning the applicability of the overtime provisions of the FLSA to ambulance and rescue service workers.
Section 7(a) of the FLSA mandates that an employer must compensate an employee at an overtime rate for all work performed in excess of forty hours during a workweek. 2 Section 7(k), however, provides a partial exemption for public agency employers from this standard by requiring that employees engaged in fire protection or law enforcement activities work an average of more than forty hours a week before they are entitled to overtime pay. 3 That is, a public agency need not pay an overtime rate to firefighters until they have worked an aggregate of 212 hours during a work period of 28 consecutive days or to law enforcement personnel until they have worked an aggregate of 171 hours during a work period of 28 consecutive days. 4 However, the Department of Labor has determined that a County, whose fire protection or law enforcement employees spend more than 20 percent of the total hours working in "nonexempt" activities, is not eligible for the partial exemption for overtime pay contained in section 7(k). 5 For purposes of this regulation, known colloquially as the "80/20" rule, "nonexempt work" is defined to be "work which is not performed as an incident to or in conjunction with ... fire protection or law enforcement activities." 6
Although not specifically mentioned in the FLSA, the regulations state that "ambulance and rescue service" employees of a public agency may be treated as firefighting or law enforcement personnel for purposes of section 7(k) if they form "an integral part of the public agency's fire protection [or law enforcement] activities" 7 or if "their services are substantially related to [such] activities." 8 In order to meet this latter standard, a two-prong test must be satisfied: (1) the ambulance and rescue service employees must have "received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties"; and (2) these employees are "regularly dispatched to fires, crime scenes, riots, natural disasters, and accidents."
The County provides ambulance and emergency medical services to its citizens through its Emergency Medical Services facility located in Fitzgerald, Georgia which employed the plaintiffs as Emergency Medical Technicians ("EMTs"). EMTs originally worked three-cycle shifts: 24 hours on duty, 24 hours on call, and 24 hours off duty. In mid-1988, this work schedule was revised to a schedule of 24 hours on duty, 24 hours on call, and 48 hours off duty. The EMTs were paid a base salary calculated by multiplying the number of hours worked by the hourly rate. Base salary is augmented by $10.00 (later increased to $16.50) for each on-call day plus a straight hourly rate for actual time worked during an on-call day. In addition, if an EMT was also a shift captain, he received an extra $25.00 per pay period as shift captain pay. Thus, aside from on-call and shift captain pay, the EMTs were paid at a straight hourly rate regardless of the number of hours worked. Beginning in January, 1988, however, the County began paying overtime to the EMTs as if the County was subject to the FLSA, but exempt under the section 7(k) firefighter's provision. In June, 1989, the County paid the EMTs backpay for all overtime earned from April 15, 1986, the date the FLSA was made applicable to governmental entities, until the County made this change in its overtime policy in January, 1988.
The plaintiffs filed this action under the FLSA for overtime pay allegedly due to them under section 7(a) of the Act, claiming that section 7(k) did not provide an exemption for the County. After a bench trial, the district court ordered a judgment in favor of the plaintiffs for overtime pay, calculated in accordance with section 7(a) and an equal amount in liquidated damages. 9 Although the court did not specifically reach the issue whether the plaintiffs' activities were substantially related to those of firefighters or law enforcement personnel so as to fall within the section 7(k) exemption, it did hold that section 7(k) was inapplicable in any case because the plaintiffs spent more that 20% of their total working hours on nonexempt activities. 10 The County now brings this appeal.
As a preliminary matter, Ben Hill County argues that it is fully exempt from the overtime pay requirement contained in section 7(a) because EMTs fall within one of the specifically enumerated exceptions contained in the FLSA. Section 13(b)(1) states that section 7(a) "shall not apply with respect to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49." 11 The County contends that because the Secretary of Transportation has the power to establish maximum hours of service under the Motor Carrier Act 12 for EMTs, it is fully exempt from coverage under section 7(a) of the FLSA.
The Motor Carrier Act grants authority to the Secretary of Transportation to regulate the maximum hours of service of employees who are employed (1) by a common carrier by motor vehicle; (2) engaged in interstate commerce; and (3) whose activities directly affect the safety of operations of such motor vehicles. 13 The Department of Labor's jurisdiction under the FLSA and the Department of Transportation's jurisdiction under the Motor Carrier Act are mutually exclusive and there are no overlapping areas of jurisdiction. 14 To avoid any conflict between these Acts, Congress determined that the Secretary of Transportation need not actually exercise his power to regulate under the Motor Carrier Act; an exemption under section 13(b)(1) is created so long as the Secretary has the authority to regulate over a particular category of employees. 15
In determining the scope and reach of a particular regulatory statute, this court grants considerable deference to the construction of that statutory scheme given by the executive department which is authorized by law to administer it. 16 Here, we have the benefit of a previous determination by the Interstate Commerce Commission 17 on the issue of whether ambulance and rescue services fall within the jurisdiction of the Motor Carrier Act. In Lonnie W. Dennis, 18 the ICC specifically found that the "Interstate Commerce Act was not intended to confer jurisdiction upon this Commission to regulate the operation of carriers transporting corpses or operating an ambulance service in interstate or foreign commerce." 19 The Commission based this finding on the view that:
[t]he term ambulance service implies emergency situations and a freedom of movement in the event of a train wreck, cyclone, bombing, or other catastrophe. In such instances, it is vital to the public interest for ambulances to be sent over the most practicable routes to whatever destinations their services may be needed, irrespective of any limitation upon operating authority or lack thereof. Consequently, because of its emergency nature and the necessary flexible character, the regulation of such service under the certificate or permit requirements of the act would in reality be contrary to the public interest. 20
The reasoning of Dennis has been specifically adopted by the Department of Transportation in determining the reach of the Motor Carrier Act. 21 The implementing rules, known as the Federal Motor Carrier Safety Regulations ("FMCSR"), explicitly state that "[t]he transportation of human corpses or sick and injured persons; and [t]he operation of fire trucks and rescue vehicles while involved in emergency and related operations" are not subject to the FMCSR. 22
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