UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30982
LOCAL 889, AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES, COUNCIL 17, ET AL.,
Plaintiffs,
versus
LOUISIANA, STATE OF, through the Department of Health and
Hospitals,
Defendant.
* * * * *
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, COUNCIL 17, ET AL.,
Plaintiffs,
RONALD A. ALFORD; WILBOURNE L. ANDERSON; RALPH
BENNETT; ROLAND J. BERTONIERE; THOMAS R. BRELAND;
TROY B. BRELAND; GILBERT J. BROWN, JR.; JOSEPH E.
CERNIGLIA; BARNEY CROSBY; GEORGE E. DENHAM;
TAMMY DUNCAN; SHELTON DYESS; JAMES L.DYKES;
EDWARD D. EMMONS; H. JACK FORBES; NEEDHAM RANKIN
FORBES, JR.; GLORIA G. FORTENBERRY; GUY D. HAMMOND;
PAUL W. HEBERT; QUITMON LANDRUM; TITUS R. LAWRENCE;
RONALD EARL LINDER; JOHN McELVEEN; PAUL W. MILLER;
GARY W. PARKER; WILEY JAMES PERNELL, JR.;HARRY L.
POWELL; JAMES RILEY; JERRY RODGERS; JOHN F. RUDOLPH;
RONNIE R. SEAL; GREG SLADE; DANNY W. SMITH;
GERALD SMITH; SHANNON STEWART; MICHAEL E. TODD,
Plaintiffs-Appellants/Cross-Appellees,
versus
STATE OF LOUISIANA, through the Department of Public Safety
and Corrections,
Defendant-Appellee/Cross-Appellant.
Appeals from the United States District Court
For the Eastern District of Louisiana
June 25, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:
Plaintiffs appeal the trial court’s decision holding that: (1) the Fair Labor
Standards Act (FLSA) is not violated by the State failing to pay overtime for a
mandatory 15 minute roll call period, and (2) the State may first require an
employee requesting leave to exhaust any compensatory time balance before
annual leave is taken. For the reasons assigned, we affirm in part, reverse in part,
and remand.
BACKGROUND
The State of Louisiana operates a prison known as Washington Correctional
Center and employs guards, known as Correction Sergeants, who serve in various
capacities. The positions held by the Correction Sergeants have various working
titles, including field officer and compound officer. “Field officer” and “compound
officer” are more correctly described as work assignments rather than job titles. A
Correction Sergeant may work for a time as a field officer and then may be
2
assigned as a compound officer and vice-versa. Compound officers guard the cell
blocks, discharging their duties in 12 hour shifts on a recurring, 14-day work cycle,
which results in a work schedule in excess of 40 hours during the first seven days
and less than 40 hours during the next seven days. When the hours are averaged
over the 14-day period, the compound officers work 42 hours a week and are paid
their regular hourly rate for the first 80 hours and time and one-half for the final
four. The State has designated the four hours for which it pays cash overtime as
“built in overtime.” Any compound officer working over 84 hours in the 14-day
period, receives compensatory time at the rate of time and one-half for every such
additional hour.
Field officers work Monday through Friday with weekends off. Prior to a
policy change in July of 1994, field officers where required to report to work fifteen
minutes before the start of their shift for a “roll call” period. They were not
compensated for this time but were subject to discipline if tardy or absent.
When a Correction Sergeant, or any other state employee for that matter,
requests annual leave, it is the policy of the State to first use any outstanding
compensatory time balance before charging the employee’s annual leave account.
This policy presumably is motivated by the federal requirement that once a certain
number of compensatory hours are accumulated, the employee must receive
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overtime pay for any excess. It is therefore financially advantageous to the State
that employees timely utilize their compensatory time, thus obviating the need for
overtime payments.
The plaintiffs brought the instant suit against the State, alleging that the
practice of requiring employees to first exhaust their compensatory time balance
when requesting annual leave, and the now long-terminated practice of having the
uncompensated 15 minute roll call period violated the FLSA.
ANALYSIS
1. Uncompensated Roll Call Period
We first address whether the 15 minute roll call period for the field officers
was compensable and, if so, at what rate. Despite earnest contentions by the State
that the roll call period was offset by a compensated lunch period, the trial court
found that period to be countable time. The court noted that field officers were
required to eat lunch in the cafeteria with the inmates and were required to standby,
ready to react to any disturbance or other need. As this factual finding is not
clearly erroneous, the only question for our resolution is the rate of compensation,
if any, that is required.1
The plaintiffs contend that the State owes overtime compensation for roll call
1
FED.R.CIV.P. 52(a).
4
which regularly added 15 minutes per day to their 40 hour work week. The State
maintains that in the event that any compensation is due, overtime is not owed
because the employees are law enforcement officers and that 29 U.S.C. § 207(k)
has established higher ceilings on the maximum number of hours which can be
worked before overtime has to be paid. The plaintiffs contend that section 207(k)
does not apply to this case because the provision was not expressly adopted by the
State which has made a practice of paying compound officers time and one-half for
every hour worked over 80 in a two week pay period. Therefore, the plaintiffs
insist that the field officers should be paid overtime for the 15 minute roll call
periods.
As a general rule, overtime is owed for a work week longer than 40 hours.
29 U.S.C. § 207(a)(1) of the FLSA provides that:
Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek
is engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in
commerce or in the production of goods for commerce,
for a workweek longer than 40 hours unless such
employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.
In order to ameliorate the manifest adverse effect of this provision on public
5
agencies responsible for providing vital public services, Congress enacted section
207(k), authorizing state and local governments to calculate, for overtime purposes,
the average number of hours worked over a maximum 28 day period, instead of the
usual seven-day work week. Section 207(k), and the Code of Federal Regulations,
also establish somewhat higher ceilings on the maximum number of hours worked
before overtime must be paid. Section 207(k) provides in pertinent part: “No
public agency shall be deemed to have violated subsection (a) of this section with
respect to the employment of any employee . . . in law enforcement activities
(including security personnel in correctional institutions)” so long as overtime is
paid for every hour worked over 42 hours in one week, or in the case of a special
work period established by the state, 86 hours in a two week period.
The State claims that it adopted a 14-day work period and, therefore,
overtime pay is not owed for the 15 minute roll call period because the total time
worked in that period never exceeded 86 hours. The trial court found that the State
would be entitled to claim the section 207(k) exemption for the plaintiffs because
it is clear that security personnel in a correctional institution are covered thereby.
The adoption by the State of a 14-day work period is reflected by its practice
of paying overtime only for hours worked over 80 during a two week pay period.
Compound officers work 60 hours during one week of each pay period and 24
6
hours the other week. The State, in its Wage Compensation Manual, notes that
“[w]ithout the [20]7k exemption the week with 60 hours would have to be counted
as 20 hours of overtime.” This obviously has not been done, demonstrating that the
state unquestionably has availed itself of the section 207(k) exemption. The
compound officers are not paid for 40 hours straight time and 20 hours at the
overtime rate during the week they work 60 hours. Rather, during the two week
period they are paid for 80 hours straight time and four hours overtime.
While the State’s practice of averaging the number of hours worked by
compound officers over a 14-day period illustrates that it has availed itself of
certain provisions of 207(k), its practice of paying cash overtime to compound
officers after 80 hours in the 14-day period illustrates that it has not opted to avail
itself of the portions of 207(k) providing a higher ceiling on the number of hours
worked before overtime is due. Section 207(k) requires overtime payment only
after 86 hours in the 14-day period. The State has done that which it was not
required to do. It has averaged the hours for the two weeks and paid overtime for
all hours over 40 in each week. Plaintiffs maintain that this results in a forfeiture
of the benefits of section 207(k). We do not agree. The State is not to be punished
for doing more than the statute requires. Although we are persuaded that section
207(k) is the standard by which overtime is to be calculated for employees engaged
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in law enforcement activities, the decision by the State to pay overtime sooner than
mandated is not to be taken as a forfeiture or rejection of the privilege granted to
state and local authorities by the Congress in section 207(k). However, as the
departmental regulations provide for payment of overtime for all hours over 40 in
each week of the two week period, and because these regulations do not distinguish
between compound officers and field officers, we can only assume that the State
has agreed to pay overtime to all Correction Sergeants, regardless of job
assignment.2 Therefore, the field officers were entitled to overtime compensation,
either in the form of cash overtime or compensatory time, for the now-terminated
15 minute roll call periods.
2. Compensatory Time Issue
The other issue posed by this appeal is whether it is an FLSA violation for
the State to first deduct compensatory time when an employee requests annual
leave. Of particular relevance to this inquiry is the interplay between annual leave
and compensatory leave, the latter being sometimes referred to as “k-time.”
2
As noted above, the State has chosen to pay compound officers time and one-half
for every hour worked over 80 during a two week period although it is not legally
obligated to do so. Based on this and other evidence in the record now before us, we are
persuaded that the State’s failure to pay for the roll call period was not a willful violation
of the FLSA. The two year statute of limitations should apply to this action. 29 U.S.C. §
255.
8
Annual leave, commonly referred to as vacation leave, is accrued by the employee
at a rate as determined by the State Civil Service Rules. Compensatory time is
earned by employees who work beyond their regular hours any day during a pay
period. There are two types of compensatory time. If employees work overtime
hours they earn “payable k-time” and receive time and one-half pay for each
overtime hour worked. “Non-payable k-time” is earned when an employee works
additional hours but does not exceed 40 hours during the pay period. For example,
employees would earn non-payable k-time if they worked on a state holiday,
receiving one hour of compensatory time for each hour worked on the holiday.
Compensatory time and annual leave are itemized separately on the employees’
pay records and check stub.
It is the practice of the State to first deduct compensatory time when an
employee requests annual leave. If there is not sufficient compensatory time
available to cover the leave request, the State will then deduct time from the
employee’s accrued annual leave. The plaintiffs maintain that this practice violates
the FLSA.
The plaintiffs contend that the language of the FLSA, as recognized by the
Eighth Circuit’s opinion in Heaton v. Moore,3 requires that the employee have
3
43 F.3d 1176 (8th Cir. 1994).
9
control over which account is deducted when annual leave is requested. The
relevant provision of the FLSA, 28 U.S.C. § 207(o)(5) provides in part:
An employee . . . who has accrued compensatory time . .
. and . . . who has requested the use of such
compensatory time, shall be permitted by the employee’s
employer to use such time within a reasonable period
after making the request if the use of the compensatory
time does not unduly disrupt the operations of the public
agency. [emphasis added]
Relying on this language and the Eighth Circuit’s holding in Heaton, plaintiffs
contend that Title 29 creates a property right in k-time which is under the dominion
of the employee. In Heaton, the court held that it violated the FLSA for an
employer to force its employees to take compensatory time.4 The facts in Heaton,
however, differ from those presented in the instant case. The Heaton court was
confronted with a situation where the employer would force corrections officers to
take compensatory time whenever their time balances reached 100 hours. In the
case at bar, the State does not force its employees to take time off. Rather, when
an employee asks for time off the State first deducts the time from the employee’s
compensatory time balance before debiting annual leave. While we do not
necessarily agree with the Eighth Circuit’s holding in Heaton, however, this
essential distinction makes its holding inapplicable to the instant case.
4
43 F.3d at 1180.
10
There is no real difference between earned compensatory time and earned
annual leave. Each give the employee time off with pay. When an employee
requests time off it should not matter which type of leave is used. The employee
may prefer to use annual leave rather than compensatory time in hopes that the
State will have to pay some cash overtime.5 While this desire is understandable,
it is inconsistent with the prime purpose of compensatory time.
In 1985, the Supreme Court in Garcia v. San Antonio Metropolitan Transit
Authority6 overruled National League of Cities v. Usery7 and held that the FLSA
was applicable to the states and was not violative of any provision of the
Constitution. The decision sparked great debate, largely due to fears that
compliance with the FLSA would cause financial hardship to state and municipal
governments. There was significant discussion in the halls of Congress for an
amendment exempting governmental agencies from the Act. Rather than creating
such a broad exemption, a compromise was fashioned by which Congress endorsed
and sanctioned the practice, in use in many states, of granting compensatory time
5
The employer must pay cash overtime once the employee’s compensatory time
balance reaches the statutory cap. The limit for public safety employees is 480 hours and
the limit for all other employees is 240 hours. 28 U.S.C. § 207(o)(2).
6
469 U.S. 528 (1985).
7
426 U.S. 833 (1976).
11
off for overtime work.8
By amending the FLSA to permit compensatory time, Congress intended to
prevent undue hardship to public employers which might result from being required
to pay significant cash overtime to its employees.9 Public employers, unlike their
private sector counterparts, do not have the luxury of being able to pass along
overtime pay to the consumer. Rather, they typically are dependent on the taxpayer
for each dollar spent. Cognizant that many communities faced high tax burdens,
Congress was persuaded to give state and municipal governments the flexibility of
utilizing compensatory time in preparing schedules for providing essential public
services.
The purpose of the 1985 amendment to the FLSA would be greatly impeded
if employees were allowed to “bank” their compensatory time and force their
public employers to pay cash overtime. We are not persuaded that section 207(o)
was designed to create new property rights in the employee. To the contrary. The
trial judge perhaps described it best when he wrote:
K-time is essentially a voluntary bargain between the
8
See e.g. 131 CONG. REC. 29,774 (1985) (statement of Rep. Porter); 131 CONG.
REC. 28,503 (1985) (statement of Sen. Cranston).
9
See S.Rep. No. 159, 99th Cong. 1st Sess. 7-8 (1985), reprinted in 1985
U.S.C.C.A.N. 651.
12
employer and the employee that gives each side
something valuable. The employee gets additional time
off from the job with pay, and the employer is relieved of
the financial burden of paying cash overtime wages. If
the court were now to allow employees to “bank” k-time
hours until they reached the statutory limit which would
require cash compensation, that result would upset the
delicate balance reached by Congress when it created
207(o) in 1985, and practically nullify the purpose of the
statutory scheme.10
We are not here presented with a situation where the State forces employees to take
time off. If the employee wishes to be paid cash overtime, the employee need not
take any time off. Instead the employee may “bank” the compensatory time along
with the annual leave. When the compensatory time reaches the statutory cap the
State will be forced to pay cash overtime. In sum, and dispositive of the second
question posed today, we do not perceive that the State’s practice of requiring an
employee requesting leave to first use accumulated compensatory time before
taking annual leave to be violative of the FLSA. We now so conclude and hold.
The judgment appealed is REVERSED and REMANDED as it pertains to the
claims for payment for the uncompensated roll call period. Otherwise, the
judgment appealed is AFFIRMED.
10
AFSCME v. Louisiana, No. 90-4389 (E.D. La. January 12, 1996).
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