Tag Archives: § 207(k)

9th Cir.: Finding of Willfulness Affirmed Where Defendant Involved in Prior Related Litigation; Offsets Applied on a Workweek-By-Workweek Basis

Haro v. City of Los Angeles

This case was on appeal by the Defendant, City of Los Angeles, following an order granting the plaintiffs summary judgment on their claims. Specifically, city fire department dispatchers and aeromedical technicians brought action challenging city employer’s classification of them as employees “engaged in fire protection,” for purpose of standard overtime exemption under Fair Labor Standards Act (FLSA). As discussed here, in addition to finding—as a matter of law—that the defendant has misclassified the employees at issue as exempt from the FLSA’s overtime provisions, the court below also held that such misclassification was willful and that any offsets claimed were limited in application to the weeks in which the monies paid for the alleged offsets were paid to plaintiffs.

Addressing the facts relevant to the willfulness issue, the Ninth Circuit explained:

In 1985, the Supreme Court held that FLSA overtime requirements apply to governmental functions. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). That same year, the City sent the Department of Labor a letter with twenty questions regarding application of the FLSA to City employees, including Fire Department paramedics. The City did not inquire as to dispatchers or aeromedical technicians.

In 1997, in Acrich v. City of Los Angeles, single-function paramedics (those paramedics not also trained as firefighters) sued the City, asserting they were improperly classified under § 207(k). In 1999, the City again contacted the Department of Labor regarding whether single-function paramedics were “fire protection” employees under the FLSA. The City settled Acrich in 2000, after which it began paying single-function paramedics the standard overtime rate of time and a half for hours worked over forty in a workweek.

In 1999, in Cleveland v. City of Los Angeles, dual-trained paramedics (those trained as both paramedics and firefighters) and Quality Improvement Analysts sued the City, asserting that they too had been improperly classified under § 207(k). After a bench trial, the district court held that the City had improperly classified these employees. The district court also ruled that the City had not acted reasonably or in good faith, and awarded liquidated damages equal to the plaintiffs’ back pay. The City appealed as to the paramedics, but not as to the Quality Improvement Analysts. This court affirmed the district court’s ruling in August 2005. See Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir.2005) (Pregerson, J.), cert. denied, 546 U.S. 1176, 126 S.Ct. 1344, 164 L.Ed.2d 58 (2006).

Citing these facts, and the fact that the defendant itself never considered the plaintiffs to be exempt until they attempted to raise an exemption defense in the course of the litigation of the case, the Ninth Circuit held that the court below had properly deemed the defendant’s FLSA violations to be willful:

The City’s conduct in this case was willful, thus entitling Plaintiffs to a three-year statute of limitations. The City has extensively litigated the meaning of § 207(k). In 2002, the district court in Cleveland ruled that the City was in violation of § 207(k) as to dual-trained paramedics and those who held desk job positions as Quality Improvement Analysts. The City did not appeal as to the Quality Improvement Analysts, and lost on appeal as to the paramedics. Yet at no time thereafter did the City take any steps to obtain an opinion letter from the Department of Labor regarding Plaintiffs’ positions, although it had done so as to other employees. Ignoring these red flags and failing to make an effort to examine the positions at issue in this case show willfulness.

Also, the City itself appears not to have viewed dispatchers as “engaged in fire protection” until this case was underway. When this lawsuit began, the City had assigned dispatchers to the Bureau of Support Services, which included the Supply and Maintenance Division, Fire Facilities Division, and Operations Control Division. The Fire Department’s Manual of Operations states that the primary objectives of the Bureau of Support Services include “the dispatching of resources and equipment to the scene of emergencies; operation of the Department’s … Dispatch Center … and the development, maintenance and repair of Fire Department Facilities.” Three months before the parties entered into their mutual stipulation of facts, however, the City reassigned the dispatchers to the Bureau of Emergency Services, which, according to the Manual of Operations, includes “[a]ll personnel normally engaged in fire fighting …” The timing of this reassignment provides further evidence that the City’s behavior was willful.

Thus, we affirm the district court’s finding that the City’s conduct was willful and justifies a third year of withheld overtime pay.

The Ninth Circuit then went on to discuss the proper methodology for calculating damages, where a defendant claims an offset for monies already paid to the employees and claims same as partial payment for overtime wages, an issue of first impression in the Ninth Circuit and one in which the Circuits are in conflict. Framing the issue, the Court explained:

The district court issued an order selecting Plaintiffs’ calculation method. The district court first noted that circuits are split over whether a workweek-by-workweek method must be used, and the Ninth Circuit has not yet addressed the issue. While the Sixth and Seventh Circuits have ruled that a week-by-week offset must be used, the Fifth and Eleventh Circuits have held that offsets may be applied cumulatively over longer periods of time. The district court was persuaded by the reasoning of the Sixth and Seventh Circuits.

Holding that the FLSA mandates a workweek-by-workweek application of any applicable offsets, the Court explained:

There is still, however, a split of authority over how to calculate offsets, and the Ninth Circuit has not yet decided the matter. The reasoning from circuits supporting a week-by-week offset is persuasive. In Howard v. City of Springfield, 274 F.3d 1141 (7th Cir.2001), the Seventh Circuit disagreed with the defendant that offsetting on a workweek basis would create an undeserved windfall. Id. at 1148. The court noted that

if the City were able to use premium payments [in a cumulative fashion], the City would be the recipient of the windfall, and in fact would be placed in a substantially better position than if it had complied with the overtime requirements of the FLSA all along…. It is contrary to the language and the purpose of the statute. Id.

Likewise, in Herman v. Fabri–Centers of America, Inc., 308 F.3d 580 (6th Cir.2002), the Sixth Circuit extensively reviewed the FLSA’s plain language, caselaw, and § 207(h)‘s legislative history to find in favor of a workweek restriction. Id. at 586–90.

Both the Seventh Circuit in Howard and the Sixth Circuit in Herman note that the Department of Labor’s regulations implementing the FLSA support prompt payment of overtime, suggesting that overtime payments should be credited within the same workweek in which they were paid:

The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made. Howard, 274 F.3d at 1148 (citing 29 C.F.R. § 778.106); Herman, 308 F.3d at 589.

The City cites alternative, yet unpersuasive, caselaw supporting a cumulative approach. In Kohlheim v. Glynn County, 915 F.2d 1473 (11th Cir.1990), the Eleventh Circuit held that previously-paid overtime can be cumulatively offset against the damages calculated. Yet the court summarily decided the issue, citing no supporting authority. Id. at 1481.

Likewise, in Singer v. City of Waco, 324 F.3d 813 (5th Cir.2003), the Fifth Circuit affirmed the district court’s cumulative offset calculation. Yet that case is inapposite, as the court explicitly stated that ” § 207(h) does not apply in this case,” and that ” § 207(h), and the cases interpreting it, are inapplicable.” Id. at 827.

We thus affirm the district court’s decision that previously-paid overtime should be offset using a week-by-week calculation.

Click Haro v. City of Los Angeles to read the entire Opinion.

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1st Cir.: Municipality Need Not Give Notice To Its Public Safety Officers Before The Municipality Takes Advantage Of 29 U.S.C. § 207(k); Notice Not A Prerequisite To Application Of Public Safety Exemption

Calvao v. Town Of Framingham

Plaintiffs are police officers of the Town of Framingham who brought a putative class action suit against the Town in April 2005, alleging that the Town had failed to pay them sufficient overtime in violation of the FLSA, 29 U.S.C. §§ 201-19, and seeking damages.  In anticipation of the Town’s defense, the officers sought a declaratory judgment that the Town was ineligible for the FLSA’s limited public safety exemption from overtime, 29 U.S.C. § 207(k), because the Town failed to adequately put them on notice of its intent to use 207(k), an exemption eases the FLSA’s overtime pay requirements on public employers who establish work schedules that meet statutory requirements.  Affirming the decision of the Court below, the First Circuit held that a Town seeking to utilize 207(k) need not put its public safety employees on formal notice beforehand.

Initially, the Court discussed the legal background of the so-called “Public Safety Exemption” as follows:

“The history and scope of the FLSA public safety exemption set the background. “Congress enacted the FLSA in 1938 to establish nationwide minimum wage and maximum hours standards.” Moreau v. Klevenhagen, 508 U.S. 22, 25 (1993); Ellen C. Kearns et al., The Fair Labor Standards Act § 1.III, at 12-13 (1999). Later amendments in 1966 and 1974 extended the Act’s reach to state and municipal employers. See Moreau, 508 U.S. at 25-26. Despite congressional efforts to mitigate the effect of these amendments on municipal coffers, e.g., Kearns et al., supra § 11.V.B., at 687, the amendments triggered protracted litigation, as state and local public employers mounted constitutional challenges to the FLSA’s regulation of state-employer compensation schemes. See Moreau, 508 U.S. at 26 & n. 6 (collecting cases). In part, the employers were successful. See Nat’l League of Cities v. Usery, 426 U.S. 833, 851-52 (1976) (invalidating 1974 amendments to the FLSA to the extent that they “impermissibly interfere[d] with the integral governmental functions” of states and municipalities).

In February 1985, the Supreme Court upheld Congress’s power under the FLSA to regulate the payments due to state and local employees. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). State and municipal authorities reacted with “grave concern” to the decision, due in part to “[t]he projected ‘financial costs of coming into compliance with the FLSA-particularly the overtime provisions.’ “ Moreau, 508 U.S. at 26 (quoting S.Rep. No. 99-159, at 8 (1985)).

In response, both the House and Senate held hearings on the issue “and considered legislation designed to ameliorate the burdens associated with necessary changes in public employment practice.” Id. Congress ultimately enacted several provisions designed to allay public employers’ fears and contain costs. See, e.g., id. Congress also delayed enforcement of the FLSA against state and local employers until April 15, 1986, to give them time to comply with the Act’s amended requirements. See Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150, § 2(c), 99 Stat. 787, 788-89.

Section 207(k) was originally passed in 1974. The provision created a partial FLSA exemption for law enforcement and fire protection personnel (“public safety personnel”). See29 U.S.C. § 207(k). When Garcia held the FLSA applied to municipal employees, § 207(k) became very important to municipalities. See Martin v. Coventry Fire Dist., 981 F.2d 1358, 1361 (1st Cir.1992).

Under the FLSA, employees other than public safety personnel are generally entitled to payment “at a rate not less than one and one-half times” their regular wages for any time worked in excess of forty hours in a seven day period. 29 U.S.C. § 207(a)(1). However, the partial exemption in § 207(k) set a higher threshold number of hours that public safety personnel can work in a twenty-eight day work period-or a proportional number of hours in a shorter work period of at least seven days-before these employees become entitled to overtime compensation. See id. § 207(k).”

After discussing the elements of the 207(k) exemption in detail, the Court addressed the pointed issue in the case, holding that formal notice of the imposition of a 207(k) work schedule is not an element required for a municipality to reap its benefits.  The Court reasoned, “Plaintiffs assert that the Town was required to give affected employees notice in order to establish a § 207(k) work period and qualify for the public safety exemption. Plaintiffs’ claim raises an issue of statutory interpretation and is before us on summary judgment. For both of these reasons, our review is de novo. See Chiang v. Verizon New England Inc., No. 09-1214, 2010 WL 431873, at *5 (1st Cir. Feb. 9, 2010). “We may affirm the district court on any basis apparent in the record.” Id.

We reject plaintiffs’ argument in light of § 207(k)‘s text and history, as well as the interpretive guidance given by the Department of Labor in its regulations. On the undisputed facts, the Town’s actions were sufficient to establish a qualifying work period, despite the asserted lack of notice to its employees. Summary judgment was appropriate.

We start with the statutory text. The text of § 207(k) does not specify that a public employer is required to establish a work period or identify how an employer might do so. Further, the text contains no requirement of notice to the affected employee. 29 U.S.C. § 207(k).

The Town points to related legislative history. Congress explicitly rejected a proposal mandating employee agreement before a § 207(k) work period could be established. Barefield v. Vill. of Winnetka, 81 F.3d 704, 710 (7th Cir.1996) (citing H.R.Rep. No. 953, 93d Cong., 2d Sess. (1974) (Conf.Rep.)); see also Agawam, 350 F.3d at 291 (noting that “employees’ approval is not required” under § 207(k)). The Town argues this is indicative that not only was no agreement required but no notice was required. This reading is consistent with Congress’s goal of “ensur[ing] that public agencies would not be unduly burdened by the FLSA’s overtime requirements.” Kearns et al., supra § 11.V.B., at 687; see alsoH.R. Rep. 93-913, at 2837-38 (1974) (describing the House’s original version of § 207(k), which provided for a complete overtime exemption for public safety personnel to help ensure that the FLSA would have a “virtually non-existent” impact on state and local governments).

It is true that § 207(k)‘s text does not prohibit giving notice either. However, Congress expressly delegated responsibility for implementing the statute to the Secretary of Labor, see Moreau, 508 U.S. at 27 (citing 29 U.S.C. § 203), who, after notice and comment, promulgated regulations, see52 Fed.Reg.2012;51 Fed.Reg. 13402 (Apr. 18, 1986). These regulations make it clear the Secretary rejected a notice requirement under § 207(k). Under these circumstances, “Congress clearly ‘expect[ed] the agency to be able to speak with the force of law,’ “ and we “must defer to the regulations’ resolution of a statutory ambiguity, so long as it is ‘reasonable.’ “ Rucker v. Lee Holding Co., 471 F.3d 6, 11 (1st Cir.2006) (quoting United States v. Mead Corp., 533 U.S. 218, 229 (2001)).

During rulemaking, the Secretary of Labor reviewed and rejected a proposal to impose a notice requirement for § 207(k). 52 Fed.Reg. at 2024-25. The Secretary observed that unlike other sections of the FLSA, which “require [ ] that there be an agreement or understanding concerning compensatory time prior to the performance of work, there is no requirement in the Act that an employer formally state its intention or obtain an agreement in advance to pay employees under section 7(k).” Id. at 2025 (emphasis added).

The resulting regulation, 29 C.F.R. § 553.224, plainly rejected both a requirement that municipalities make a formal statement of intention and a requirement that they obtain agreement. The regulation explains that “any established and regularly recurring period of work which, under the terms of the Act and legislative history, cannot be less than 7 consecutive days nor more than 28 consecutive days” suffices as a work period, noting that “[e]xcept for this limitation, the work period can be of any length, and it need not coincide with the duty cycle or pay period or with a particular day of the week or hour of the day.” Id. § 553.224(a).

Section 553.224‘s reference to an “established” work period is the foundation of plaintiffs’ claim that an employer must provide notice to employees to set up a § 207(k) work period. But § 553.224 includes no procedural steps of any kind, let alone a notice requirement.

Our caselaw reflects in dicta the Secretary’s interpretation that federal law in § 207(k) does not require notice to the affected employee, see Agawam, 350 F.3d at 291;see also id. at 291 n .21 (“The work period requirement is ordinarily not a high hurdle.”), as does the law in other circuits to have considered the issue, see Milner, 165 F.3d at 1223 (per curiam) (“[T]he [§ 207(k) ] exemption need not be established by public declaration.”);   Spradling v. City of Tulsa, 95 F.3d 1492, 1505 (10th Cir.1996) (“[A] public employer may establish a 7(k) work period even without making a public declaration, as long as its employees actually work a regularly recurring cycle of between 7 and 28 days.”) (internal quotation marks and citation omitted); Barefield, 81 F.3d at 710 (finding a municipal employer entitled to § 207(k) exemption, even though the work schedule at issue predated the enactment of the provision and the employer “made no declaration of intent to come under Section 7(k)”) (internal quotation marks omitted).

Here, the Town has used a § 207(k)-compliant work period at all relevant times. The Town’s memo of April 11, 1986, shows that its “4-2” and “5-3” work cycles are component parts of a fixed, recurring twenty-four day work period. Cf. Agawam, 350 F.3d at 291 (rejecting public employer’s claim to the § 207(k) exemption when the employer used six-day work cycles and could “not point to a single statement or document indicating that it adopted a work period longer than six days”). Both of these schedules are consistent with the identified work period, as both divide evenly into a twenty-four day period. See Avery, 24 F.3d at 1344 (holding that a “five days on, two days off duty cycle, repeated four times” constitutes a “valid twenty-eight day work period”) (internal quotation marks omitted). Additional memoranda discussing the FLSA’s imminent effective date and expressing the Town’s intention to take advantage of the public safety exemption further support this conclusion.

Plaintiffs do not directly challenge the regulatory framework outlined above. They instead urge that a subsequent letter ruling by an administrator at the Department of Labor mandates a notice requirement and is entitled to deference by this court under Auer v. Robbins, 519 U.S. 452, 461 (1988), or Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). That argument was not properly presented to the district court and is waived. E.g., McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir.1991). We nonetheless address the claim to ensure clarity on this point of law, and we reject plaintiffs’ assertion for three distinct reasons.

First, the administrator’s letter ruling made no mention of a notice requirement. It said only that “[a]n employer must designate or otherwise objectively establish the work period … and pay the affected employees in accordance with its provisions.” Dep’t of Labor Ltr. Rul. FLSA-1374 (Jan. 3, 1994). The letter’s emphasis on “objectively establish[ing]” a work period is not inconsistent with 29 C.F.R. § 553.224. To the contrary, it merely paraphrases the regulation’s requirement that employers make use of an “established and regularly recurring period of work,” id. § 553.224(a), in order to claim the benefits of the exemption.

Second, the letter responded to an inquiry regarding a specific decision by this court, Martin v. Coventry Fire Dist., 981 F.2d 1358 (1st Cir.1992), which addressed different issues. When responding to the inquiry, the administrator plainly stated that the letter ruling was “based exclusively on the facts and circumstances” presented. Dep’t of Labor Ltr. Rul. FLSA-1374. The letter is irrelevant to plaintiffs’ present argument.

Finally, “[i]nterpretations such as those in opinion letters … do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). To the contrary, such letters “are ‘entitled to respect’ … only to the extent that th[eir] interpretations have the ‘power to persuade.’ “ Id. (quoting Skidmore, 323 U.S. at 140). Here, the Secretary of Labor explicitly rejected the very position that plaintiffs ascribe to the administrator’s letter, stating clearly during rulemaking that employers need not formally declare their intentions to pay employees under § 207(k). 52 Fed.Reg. at 2024-25. Even if plaintiffs’ reading of the letter were accurate, the letter’s inconsistency with the Secretary’s earlier pronouncement would render it unpersuasive. See Skidmore, 323 U.S. at 140.”

Thus, the Court concluded, “Plaintiffs’ argument fails. The Town was not required to notify plaintiffs that it had established a § 207(k) work period. Summary judgment was appropriately granted.”

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E.D.La.: Notwithstanding The Use Of A 212 Hour Month In Collective Bargaining Agreement (CBA), City Failed To Provide Adequate Proof It Adopted A 28-day Work Period As Required For § 207(k) Exemption

Miley v. City of Bogalusa

Fire suppression and prevention employees of the City of Bogalusa (the City) filed a complaint against the City to recover overtime, liquidated damages, and attorney’s fees, pursuant to the FLSA.  The firefighters work a three-day cycle (one day on duty and two days off), their pay schedule is bi-monthly on the fifteenth and last day of the month, and the pay periods vary in length.  The City pays a flat 12 hours of overtime pay monthly.  The firefighters alleged that they routinely work in excess of the basic overtime threshold of 40 hours in a workweek. They sought overtime pay at the rate of one and one-half times the regular rate of pay for all hours worked in excess of 40 hours in a workweek.  Alternatively, assuming that a seven-day work cycle has been adopted by the City, the plaintiffs alleged that they are entitled to full overtime for all hours worked beyond 60 hours in a work week.  The threshold issue before the Court was whether the City had properly adopted a 28-day work period as required to assert their exemption under § 207(k).  As discussed below, the Court held they had not.

Discussing the 207(k) exemption, the Court stated, “[t]here is no dispute that the City is eligible for the exemption under § 207(k) as a local government that provides vital public services. The parties agree that there are no disputed issues of material fact, and the question is whether the City adopted the seven day or 28-day work period to qualify for the exemption.

The plaintiffs contend that the City has not opted for the overtime exemption under § 207(k), and the regular overtime provisions of § 207(a) apply, requiring an employer to pay overtime compensation at a rate of one and one half times the regular rate after the employee has worked more than 40 hours in a week. Moreover, the plaintiffs contend that the City provided no statement or announcement that it has adopted any seven to 28-day period. The plaintiffs agree that the adoption of a particular work period necessary to come under the exemption of § 207(k) does not have to be formal or express if the City can demonstrate adoption by its actions. See Singer v. City of Waco, Tex., 324 F.3d at 819 (a municipality can establish a particular work period by demonstrating that it actually pays its fire fighters in accordance with the longer work period).

The City argues that it set out a 28-day work period, as evidenced by the reference to an hourly scale based on 212 hours per month, when negotiating the collective bargaining agreement. It further argues that it paid its firefighters through a formula in accordance with the collective bargaining agreement for the past twenty years.

The Bogalusa Professional Firefighters Association-Local No. 687-AFL-CIO entered a collective bargaining agreement with the City on April 19, 1989. Article IV addresses the “Hours of Work” for firefighters as follows:

The normal working hours shall be twenty-four hours on and forty-eight hours off and shifts shall be arranged and working assignments made in accordance with this schedule. As these working hours which were requested by the Union and have been in effect for a number of years result in at least one out of every three work weeks being in excess of the sixty hours provided by law, the Union, on behalf of its members, does hereby waive any overtime pay for any hours of work in excess of sixty hours per calendar week resulting from this working schedule and have requested each employee to personally execute a waiver of overtime to this extent.  However, any firefighter called back to work other than pursuant to a regular shift shall be paid overtime at the rate of one and one-half times his usual salary to be determined by reducing his average monthly salary to an hourly scale, based on 212 hours per month and to include State Supplementary Pay; all in addition to his regular monthly salary.

Dale Branch, the City attorney, represented the City in negotiating the collective bargaining agreement. He opined that the City had adopted the 28-day work period by its payroll-calculation practice for the past 20 years, and that the formula used to calculate overtime pay was designed to comply with the FSLA and its state counterpart, Louisiana Revised Statute 33:1994, based on a 28-day work period. Def. exh. C at 43, 49. He admitted that he does not know the origin of the formula, nor when it was implemented, and that he knows of no other document or other indication of the adoption of a work period by the City.

Patty Sandifer, a City payroll computer operator, testified in her deposition that Bogalusa firefighters work 240 hours a month, consisting of ten, twenty-four hour shifts. On the 15th of the month, firefighters are paid for 120.01 hours. At the end of the month, the firefighters receive regular pay and additional compensation for setup, shift differential, overtime, and contract overtime.

In order to calculate overtime pay, Sandifer applies a formula, which the City has used for over 20 years. Sandifer begins with the firefighter’s base salary from a salary schedule and adds a state monthly supplement to obtain a monthly salary. The monthly salary is divided by 212 to provide the monthly rate per hour. Sandifer then subtracts the hourly state supplemental from the monthly rate to obtain the base hourly rate. The base hourly rate is used to calculate any overtime payment that is due. The base hourly rate is multiplied by 2880, which represents the firefighter’s annual hours (12 x 240). The resulting amount is the annual overtime salary. Sandifer has no idea where the number 212 originated other than that it is the monthly hours used for figuring overtime.

In this case, the City has provided no statement or announcement that it has adopted a 28-day work period for § 207(k) purposes. The firefighters worked a three-day cycle of 24 hours on and 48 hours off and were paid twice a month. The use of 212 hours referenced in the collective bargaining agreement to calculate the overtime without more is insufficient to establish a 28-day work period. Further, the 212 reference is contained in a sentence which applies to “any firefighter called back to work other than pursuant to a regular shift” and is not applicable to the overtime hours at issue. Accordingly, the City has not carried its burden of proving it adopted a 28-day work period.

Alternatively, the City argues that it is entitled to an exemption using the seven-day work period. In support of the argument, the City relies on the testimony of its experts, Don Strobel and Karen Clampitt that firefighter are entitled to overtime only after 53 hours a week, even if a work period is not adopted under § 207(k), because the Department of Labor does not require that the City “revert back to a 40-hour work week.”

The plaintiffs filed a motion in limine to exclude the testimony of Don Strobel and Karen K. Clampitt, pursuant to Federal Rules of Evidence 702 and 704. They argue that the expert opinions are impermissible legal conclusions that there is no violation of the FLSA and do not assist the court in determining the facts.

Federal Rules of Evidence 702 and 704 govern the admissibility of expert testimony. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 704 provides:

Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The motion in limine to exclude the testimony is denied, and the court will consider the expert testimony offered by the City.

The experts opine that the Department of Labor takes the position that, if someone is engaged in firefighting and they meet the duty test, then they can only go down to the 53 hours a week without compliance with the § 207(k) exemption. They opine that firefighters would be entitled to overtime after 53 hours, not 40 hours, even if they “had never heard” of § 207(k).

The experts base their opinion on their experience in the Department of Labor, but do not explain the basis of their opinion or present documents, cases, opinion letters, or regulations upon which they rely. When asked in the deposition to point to a regulation that provides for a default to 53 hours if the City does not establish an exemption, Strobel stated that he did not think it appeared in the regulations, the field office handbook, or an internal document. Clampitt stated in her deposition that she did not rely on any regulation, but just her “working knowledge of the law.”

The opinions of the experts do not establish that the City is entitled to a “default” work period of seven days. Other than the opinion of the experts, the City offers no evidence to carry its burden of establishing that it adopted a seven-day work period.

Accordingly, the City has not carried its burden of establishing that it qualifies for the exemption by adopting either a seven or 28-day work period. Therefore, the City is not entitled to the partial overtime exemption under § 207(k). The case will proceed to trial on the issues whether the terms of the collective bargaining agreement limiting overtime to twelve hours a month should be enforced; what, if any, amount the firefighters are owed as overtime compensation; whether the City is entitled to a set off for overtime that it has paid; and whether the City acted in good faith in its payment of overtime.

Accordingly, there are no disputed issues of material fact, and the plaintiffs are entitled to judgment as a matter of law. The plaintiffs’ motion for summary judgment is granted, and the City’s cross-motion for summary judgment is denied.”

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