FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUISE PARTH, individually and on
behalf of all others similarly No. 08-55022
situated, D.C. No.
Plaintiff-Appellant,
v. CV-06-04703-
MMM
POMONA VALLEY HOSPITAL MEDICAL ORDER AND
CENTER, a California corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
April 13, 2009—Pasadena, California
Filed November 18, 2010
Before: William C. Canby, Jr., Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
18571
18574 PARTH v. POMONA VALLEY HOSPITAL
COUNSEL
Frank J. Coughlin, Santa Ana, California, for the plaintiff-
appellant.
Douglas R. Hart and Beth Anne Scheel, Los Angeles, Califor-
nia, for the defendant-appellee.
ORDER
This court’s opinion filed October 22, 2009, and reported
at 584 F.3d 794, is withdrawn, and is replaced by the attached
Opinion.
PARTH v. POMONA VALLEY HOSPITAL 18575
The petition for rehearing and the petition for rehearing en
banc, filed November 9, 2009, is DENIED.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
No further petitions for rehearing or rehearing en banc will
be accepted.
OPINION
N.R. SMITH, Circuit Judge:
When an employer changes its shift schedule to accommo-
date its employees’ scheduling desires, the employer may
reduce the employee pay rate to pay its employees the same
wages they received under the former schedule, so long as the
rate reduction was not designed to circumvent the provisions
(including overtime) of the Fair Labor Standards Act
(“FLSA”).
1. BACKGROUND
Pomona Valley Hospital Medical Center (“PVHMC”) is a
hospital located in Pomona, California that has at all relevant
times been an “employer” subject to the FLSA. The FLSA
requires an employer (such as PVHMC) to pay its employees
at one-and-one-half times the employees’ “regular rate” for
any “employment in excess of eight hours in any workday and
in excess of eighty hours in [a] fourteen-day period.” 29
U.S.C. § 207(j).1
1
Section 207(j) offers hospitals and certain other institutions to agree
with their employees to calculate weekly overtime over a fourteen-day
period; overtime then is paid for work exceeding 8 hours in one day or 80
hours in a fourteen day period [the 8/80 plan].
18576 PARTH v. POMONA VALLEY HOSPITAL
Prior to 1989 or 1990, PVHMC scheduled its nurses to
work almost exclusively in 8-hour shifts. However, many
PVHMC nurses preferred working 12-hour shifts in order to
have more days away from the hospital. The nurses, therefore,
requested 12-hour shift schedules. In response to these
requests, PVHMC developed and implemented an optional
12-hour shift schedule and pay plan in 1989-90. The pay plan
provided nurses the option of working a 12-hour shift sched-
ule in exchange for receiving a lower base hourly salary (that
at all times exceeded the minimum wage set forth by the
FLSA) and time-and-a-half pay for hours worked in excess of
eight per day. The plan prohibited PVHMC from requiring
nurses to work additional shifts, absent a medical emergency.
If nurses voluntarily work longer than the 12-hour shift, they
are paid double the regular rate. The result: nurses, who vol-
unteered for the 12-hour shift schedule, would make approxi-
mately the same amount of money as they made on the 8-hour
shift schedule (while working the same number of hours over
a 14-day period and performing the same duties). After
PVHMC made the 12-hour shift schedule available, many
PVHMC nurses (though not all) opted to work 12-hour shifts.
In 1993, Louise Parth worked as a nurse in PVHMC’s
emergency room (“ER”). The nurses in PVHMC’s ER
(including Parth) voted to implement 12-hour shifts. Parth
favored the 12-hour shift format, because it provided her more
flexibility in her personal schedule, enabling her to (1) care
for her mother, (2) pursue a second nursing job at other facili-
ties, and (3) pick up additional shifts at PVHMC. After voting
to implement 12-hour shifts in the ER, Parth subsequently
entered into a voluntary agreement with PVHMC that reduced
her base hourly wage rate from $22.83 to $19.57 in exchange
for the 12-hour shift schedule. Parth has worked the 12-hour
shift schedule without interruption since 1993.
In 2003, the PVHMC nurses voted to unionize. Accord-
ingly, PVHMC and the nurses’ certified bargaining represen-
tative, Service Employees International Union, Local 121
PARTH v. POMONA VALLEY HOSPITAL 18577
(“Local 121”), negotiated a collective bargaining agreement
(“CBA”) over a nine-month period. Parth was a member of
Local 121’s Bargaining Committee and therefore attended
most of the negotiation sessions. The resulting agreement pro-
vided that PVHMC would increase all nurse salaries—for 8-
hour shift employees and 12-hour shift employees alike— by
10% during the CBA’s first year, followed by a 5% across-
the-board increase for the second and third years. The CBA
also reaffirmed PVHMC’s practice of paying nurses working
the 12-hour shift schedule a lower base hourly rate than
nurses working 8-hour shifts.
The CBA set the base hourly rate for Parth’s position at
$34.644 (the “base rate”). When Parth works a weekday
night, her hourly rate is $39.84 (the “weeknight base rate”).
When she works a weekend night, her hourly rate is $46.929
(the “weekend night base rate”). Anytime Parth works more
than 8 hours in a shift or 80 hours in a 14-day work period,
she receives 1.5 times her “regular rate” of pay for those
hours. If Parth works beyond 12 hours in a shift, she is paid
“double-time”—double the “regular rate” of pay. If she works
an additional shift beyond her regular schedule, she is paid at
the higher rate applicable to eight-hour shift employees.
PVHMC calculates the “regular rate” of pay by multiplying
the total number of hours Parth works at each of the corre-
sponding base rates (base rate + weeknight base rate + week-
end night base rate), adding those numbers together, then
dividing the total base rate pay by the total number of base
rate hours worked. The “regular rate” of pay is therefore
something more than the weeknight base rate of pay and will
vary according to the number of hours worked at the various
base rates. This method is known as the “weighted average
method” of determining the “regular rate.” Gorman v. Consol.
Edison Corp., 488 F.3d 586, 596 (2d Cir. 2007). After
PVHMC calculates the “regular rate” of pay, it multiplies that
number by 1.5 to arrive at the overtime rate.
In 2004, all Local 121 members employed at PVHMC (and
in good standing with the union) voted on the proposed CBA
18578 PARTH v. POMONA VALLEY HOSPITAL
after being advised of its contents and being provided the
opportunity to review its provisions. After Local 121 ratified
the CBA, Local 121 representatives and PVHMC executed
the agreement. Parth was a signatory to the agreement. She
also testified during her deposition that she was aware the
CBA continued PVHMC’s pay rate practices. Parth continued
to work the 12-hour shift schedule at PVHMC.
Just two years later, Parth filed a putative class action Com-
plaint against PVHMC. She alleged that PVHMC’s use of dif-
ferent base hourly rates violates the FLSA in that it denies
unionized employees overtime pay, to which they are statu-
torily entitled. The district court found that Parth met the
requirements for conditional class certification to bring the
FLSA claim. PVHMC then filed a motion for summary judg-
ment, asserting that its pay practices comply with the FLSA.
The district court found that Parth did not adduce evidence or
law sufficient to support her claims and therefore granted
PVHMC summary judgment. We affirm.
II. STANDARD OF REVIEW
We review de novo the district court’s order granting sum-
mary judgment. See, e.g., Universal Health Servs., Inc. v.
Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). On review,
we must determine, viewing the evidence in the light most
favorable to Parth, “whether there are any genuine issues of
material fact and whether the district court correctly applied
the [relevant] substantive law.” Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004). “[T]he plain lan-
guage of Rule 56(c) mandates the entry of summary judgment
. . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. DISCUSSION
Parth argues that PVHMC violated the FLSA by creating
a pay plan that pays nurses working 12-hour shifts a lower
PARTH v. POMONA VALLEY HOSPITAL 18579
base hourly rate than nurses who work 8-hour shifts. In sup-
port of her argument, Parth contends that: (A) PVHMC can-
not reduce the base pay for nurses working the 12-hour shift,
(B) the 12-hour base pay rate is an “artifice” designed to
avoid the FLSA’s overtime and maximum hours require-
ments, and (C) PVHMC cannot justify the base hourly pay
rate differences between the 8-hour and 12-hour shifts,
because nurses working both shifts perform the same job
duties.
A.
[1] Parth first asserts that PVHMC cannot reduce the base
pay for nurses working the 12-hour shift, because such reduc-
tion violates the FLSA. The FLSA requires hospitals on the
8/80 plan to pay employees, who work more than 8 hours in
a day or 80 hours in a two-week period, one and a half times
the employees’ “regular rate” of pay. 29 U.S.C. § 207(j). The
Supreme Court interprets “regular rate” to mean “the hourly
rate actually paid the employee for the normal, non-overtime
workweek for which he is employed.” Walling v.
Youngerman-Reynolds Hardwood Co, Inc., 325 U.S. 419, 424
(1945). Congress’s purpose in enacting the FLSA “was to
protect all covered workers from substandard wages and
oppressive working hours.” Barrentine v. Arkansas-Best
Freight System, Inc., 450 U.S. 728, 739 (1981). See also
Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir.
1999). Under the FLSA, employers and employees are gener-
ally “free to establish [the] regular [non-overtime] rate at any
point and in any manner they see fit,” “[a]s long as the mini-
mum hourly rates established by Section 6 [of the FLSA] are
respected.” Youngerman-Reynolds, 325 U.S. at 424. Though
our Circuit has never been asked to determine whether an
employer subject to the FLSA may alter the “regular rate” of
pay in order to provide employees a schedule they desire, we
conclude that such an arrangement does not contravene the
FLSA’s purpose.
18580 PARTH v. POMONA VALLEY HOSPITAL
[2] Soon after Congress enacted the FLSA, but before it
became effective, many employers altered their compensation
schemes—by lowering base hourly rates—to ensure that they
paid employees the same overall wages after complying with
the FLSA’s overtime requirements. See, e.g., Walling v. A. H.
Belo Corp., 316 U.S. 624, 628-30 (1942). In Belo, the
Supreme Court examined these compensation practices and
held that, even when the employer’s purpose in lowering
hourly base rates “was to permit as far as possible the pay-
ment of the same total weekly wage after the [FLSA] as
before. . . . [N]othing in the [FLSA] bars an employer from
contracting with his employees to pay them the same wages
that they received previously, so long as the new rate equals
or exceeds the minimum required by the [FLSA].” Id. at 630.
The Eleventh Circuit followed Belo’s holding in a case
involving a municipal employer. See Wethington v. City of
Montgomery, 935 F.2d 222 (11th Cir. 1991). “When passed
in 1938, the FLSA did not apply to any state or local employ-
ers.” Id. (citing Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 533 (1985)). Congress expanded the FLSA’s
definition of “employer” in 1974 to include municipalities. In
Garcia, the Supreme Court reversed its previously-established
precedent and held that state and local governments could be
liable for FLSA violations. Wethington, 935 F.2d at 224-25.
Given the potential for sudden liability, Congress delayed
application of the FLSA to municipal employers until April
15, 1986. Id. At 225 (citing Fair Labor Standards Amend-
ments of 1985, Pub. L. No. 99-150, § 2(c), 99 Stat. 787, 788).
Accordingly, municipal employers such as the City of Mont-
gomery (the “City”) became subject to the FLSA as of April
15, 1986.
In Wethington, the City endeavored to create and imple-
ment a “budget-neutral” plan that would ensure FLSA com-
pliance before April 15, 1986. Wethington, 935 F.2d at 225.
Prior to Garcia, the City paid its fire fighters on a salary basis,
which covered “a cycle of three pay periods, each involving
PARTH v. POMONA VALLEY HOSPITAL 18581
varied hours over 14 days: one 104-hour period, one 112-hour
period, and one 120-hour period. For this 42-day, 336-hour
cycle, a typical fire fighter would receive $2,208.45. The
actual working time within these periods consisted of rota-
tions of duty in which the fire fighters worked 24 hours, were
off duty for 48 hours, worked another 24 hours, and so on.”
Id. This scheme did not provide for overtime, so in June 1985,
the City adopted a new hourly wage scale to comply with the
FLSA. Id.
The City determined that under the FLSA, 316 of the 336
hours in the 42-day cycle would be considered regular hours,
while 20 would be considered overtime. Id. In order to create
a new, yet “budget-neutral,” pay plan that incorporated time-
and-a-half overtime pay, the City, “for the purpose of calcula-
tion, increased the [20] overtime hours by 50%. [It] then took
the fictitious total hours of 346 (316 regular plus 30 adjusted
overtime) and divided them into the fire fighters’ total pay for
that period to produce a per-hour wage of $6.3828.” Id. The
revised system ensured that City fire fighters would work the
same hours and shifts as before, but would receive $6.3828
per hour for 316 regular hours, and $9.5742 ($6.3828 multi-
plied by 1.5 as required by the FLSA) per hour for 20 hours
of overtime, totaling $2,208.4488. Id. “Therefore the total sal-
ary and total hours did not change. The payment system and
the equivalent hourly rates of pay, however, did change.
Under the prior, salary system, the converted hourly rate
amounted to $6.57. Under the revised system, the effective
rate was decreased to $6.38.” Id. The fire fighters sued the
City, making an argument similar to Parth’s.
Citing Belo, the Eleventh Circuit held that, if a new pay
plan “actually employed is valid under the [FLSA], the fact
that the regular rate adopted prior to the [FLSA’s] effective
date produces a total pay no greater than the total pay under
a prior system is not enough to establish a violation of the
FLSA.” Id. at 229. The court “read the Belo language to sup-
port the City’s argument that it is not a violation of the
18582 PARTH v. POMONA VALLEY HOSPITAL
[FLSA] to reduce, prior to the effective date of the [FLSA],
the hourly rate paid employees in order to avoid greater pay-
ments upon application of the FLSA.” Id.
[3] We recognize that the Belo and Wethington cases dealt
with employers creating cost-neutral pay plans that lowered
employees’ base hourly rates before becoming subject to the
FLSA. However, there is no Supreme Court or Ninth Circuit
case that says whether an employer can or cannot do so while
subject to the FLSA. Courts around the country have dealt
with similar matters, with conflicting results. Compare, e.g.,
Conner v. Celanese, Ltd., 428 F. Supp. 2d 628, 637 (S.D. Tex.
2006) (holding that “an employer can comply with the FLSA
by reducing the ‘regular’ wage paid to its employees and pay
overtime at one and one-half times the reduced regular rate
such that the total pay to the employees remains the same”),
with Rhodes v. Bedford County, Tenn., 734 F. Supp. 289, 292
(E.D. Tenn. 1990) (“The court is of the opinion that defen-
dant’s implementation of [a revised pay plan similar to
PVHMC’s] constitutes a scheme intended to avoid the over-
time requirements of § 7. [Even though it] result[ed] in the
workers being paid the same amount for the same number of
hours worked both before and after the changeover. This was
accomplished by artificially altering plaintiffs’ ‘regular
rate.’ ”).
[4] This case presents us with an issue of first impression.
However, we agree with the district court’s approach and use
Supreme Court precedent on pre-FLSA pay plan alterations
for guidance on how to proceed under the facts before us. In
Belo, 316 U.S. at 630, the Supreme Court stated that “nothing
in the [FLSA] bars an employer from contracting with his
employees to pay them the same wages that they received pre-
viously, so long as the new rate equals or exceeds the mini-
mum rate required by the FLSA.” Further, Youngerman-
Reynolds, 325 U.S. at 424, states that “[a]s long as the mini-
mum hourly rates established by Section 6 [of the FLSA] are
respected, the employer and employee are free to establish
PARTH v. POMONA VALLEY HOSPITAL 18583
this regular rate at any point and in any matter they see fit.”
The PVHMC pay plan conforms with this precedent.
[5] Additionally, we look to the purpose of the FLSA,
which is “to ensure that each [covered] employee . . . would
receive ‘[a] fair day’s pay for a fair day’s work’ and would
be protected from the evil of ‘overwork’ as well as ‘under-
pay.’ ” Williamson v. Gen. Dynamics Corp., 208 F.3d 1144,
1150 (9th Cir. 2000) (quoting Barrentine, 450 U.S. at 739).
The PVHMC 12-hour shift scheduling practice was first initi-
ated at the nurses’ request. The 12-hour shift scheduling prac-
tice was then memorialized in a collective bargaining
agreement as a result of negotiations between Local 121 and
PVHMC (again initiated at the nurses’ request). The parties
do not dispute that the wages paid under the pay plan are
more than the minimum wages under federal law. The pay
practice ensures that employees who work beyond eight hours
in a day receive time-and-a-half for their efforts. In fact, the
nurses are paid daily overtime under this lawful 8/80 sched-
ule. Such overtime is properly calculated based on the actual
overtime rate paid to them. The agreement also prohibits the
hospital from requiring its nurses work additional shifts,
absent a medical emergency. Lastly, it ensures that employees
who volunteer to work more than twelve hours in a day
receive “double-time” pay. We therefore conclude that the
pay practice protects employees from the evils of overwork
and underpay, and properly incentivizes PVHMC from over-
working its nurses.
Parth is correct that PVHMC was under no obligation to
reduce the regular hourly rate of nurses who opted for the 12-
hour shifts. PVHMC could have maintained the hourly rate
paid to those employees when they were working 8-hour
shifts prior to the agreement and absorbed the greater wage
costs. However, we do not decide whether the agreement was
an ideal, or even preferred, method of contracting; we decide
only whether the agreement in question was permissible under
the FLSA.
18584 PARTH v. POMONA VALLEY HOSPITAL
[6] Accordingly, we conclude that the arrangement
between Parth and PVHMC does not violate the FLSA,
because it is not prohibited under the statute, and it does not
contravene the FLSA’s purpose. Parth cannot cite any rele-
vant case law to support her argument that PVHMC cannot
respond to its employees’ requests for an alternative work
schedule by adopting the sought-after schedule and paying the
employees the same wages they received under the less-
desirable schedule. To us, PVHMC’s actions seem perfectly
reasonable, were requested by the nurses (who work the
schedules), and are the result of a bargained-for exchange
between the hospital administration and Local 121.2
B.
Parth also argues that the 12-hour shift pay plan is essen-
tially an artifice to avoid paying overtime. The district court
examined this argument. It noted that Parth could cite “no
authority for the proposition that these facts show the 12-hour
rate was a subterfuge that violated the FLSA.” We agree.
Parth’s argument hinges on two issues: first, whether
PVHMC’s pay plan contravenes the FLSA’s purpose; second,
whether the revised “regular rate” is unrealistic and artificial.
[7] Employers cannot lawfully avoid the FLSA’s overtime
provisions “by setting an artificially low hourly rate upon
which overtime pay is to be based and making up the addi-
tional compensation due to employees by other means.” 29
C.F.R. § 778.500(a). The FLSA also prohibits employers
from adopting “split-day” plans in which the employee’s
hours are arbitrarily divided in such a way as to avoid over-
2
The employee’s consent to the reduced regular rate is a factor in deter-
mining whether a reduced rate was bona fide. However, an employee may
not waive his or her rights under the FLSA, and agree to a pay plan that
violates the FLSA. See Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 740-41 (1981).
PARTH v. POMONA VALLEY HOSPITAL 18585
time payments. Walling v. Helmerich & Payne, Inc., 323 U.S.
37, 40 (1944); 29 C.F.R. § 778.501. Both types of plans work
in a manner so that employees do not earn overtime compen-
sation, regardless of how many hours they worked.
An employee’s “regular rate” of pay is “the hourly rate
actually paid the employee for the normal, non-overtime
workweek for which [s]he is employed.” Youngerman-
Reynolds, 325 U.S. at 424. See also United States v. Rosen-
wasser, 323 U.S. 360, 363-64 (1945) (holding that “Section
7(a) [of the FLSA] refers to a ‘regular rate’ which we have
defined to mean ‘the hourly rate actually paid for the normal,
non-overtime workweek.’ ” (quoting Helmerich & Payne,
Inc., 323 U.S. at 40)). PVHMC’s regular rate for 12-hour shift
nurses is the rate it pays for the first eight hours of a 12-hour
shift. Thereafter, the nurses are paid time and a half pay for
the next four hours of their shift and double pay for any work
they volunteer to perform after the 12-hour shift.
[8] Parth contends that PVHMC’s regular rate for nurses
working the 12-hour shift is artificial, and therefore unlawful,
relying on Youngerman-Reynolds to support her argument.
Youngerman-Reynolds holds that employers cannot skirt the
FLSA’s requirements by creating a new payment scheme and
corresponding lower regular rate that does not reflect the eco-
nomic reality of the employees’ work. Youngerman-Reynolds,
325 U.S. at 425. In Youngerman-Reynolds, an employer paid
its employees a piece rate determined by the number of
boards they ricked and stacked. Id. at 420-21. When generat-
ing the new hourly rate from which it would base overtime
compensation under the FLSA, the employer created an arbi-
trary per-hour piece rate that did not reflect the actual rate at
which its employees stacked and ricked wood. Id. at 421-23.
The Supreme Court held that the scheme violated Congress’s
goals in enacting the FLSA—“inducing the employer to
reduce the hours of work and to employ more [workers],” and
“compensating the employees for the burden of a long work-
week.” Id. at 423-24.
18586 PARTH v. POMONA VALLEY HOSPITAL
[9] In its amicus briefing, the Department of Labor recom-
mended that courts review agreements (such as this one) to
determine whether the rates are artificial by resolving whether
the reduced rate was “bona fide.” The Department then
argued that a reduced rate was bona fide if it was “(1) agreed
to by the employee; (2) in place for a substantial period of
time; and (3) equal to or in excess of the Act’s minimum
wage.” Applying these factors, the PVHMC reduced rate was
bona fide.3 First, the reduced rate was agreed to by the
employees through the collective bargaining agreement, in
which there appears no evidence of improper influence or
inequality of bargaining position. The plan provides employ-
ees more scheduling flexibility, allows them to spend less
time commuting to work (because they spend fewer days at
work), and ensures that PVHMC does not retain an incentive
to ask the nurses to work longer hours. Second, the rate has
been in place since 1989 or 1990 (and applied to Parth since
1993). Third, the rate paid nurses working the 12-hour shift
far exceeds the Act’s minimum wage.
[10] Parth also asserts that the regular rate is “unrealistic”
and “artificial,” in violation of the Supreme Court’s admoni-
tion in Helmerich & Payne, Inc., 323 U.S. at 42, that a regular
rate cannot be derived “in a wholly unrealistic and artificial
manner.” See also Adams v. Dep’t of Juvenile Justice of New
York, 143 F.3d 61, 67-68 (2d Cir. 1998) (stating that the regu-
lar rate may not be set in a “wholly unrealistic and artificial
manner” that does not reflect actual practice). The Depart-
ment of Labor has incorporated Helmerich & Payne and
3
The Department’s amicus brief (which was submitted at our request in
connection with a petition for rehearing) concluded:
The Hospital’s reduction of the nurses’ regular hourly wage rates
does not appear to be designed to circumvent the Act’s overtime
requirements and appears to meet the three factors identified by
the Department for ensuring that reduced rates bona fide. Further-
more, the panel’s decision does not conflict with a decision of the
Supreme Court or a decision of this court. Therefore, neither
panel rehearing nor en banc rehearing is warranted.
PARTH v. POMONA VALLEY HOSPITAL 18587
Youngerman-Reynolds into its regulations, promulgating reg-
ulations to guide employers who wish to ensure their regular
rates are not deemed artificial or unrealistic. See 29 C.F.R.
§§ 778.316, 778.500 through 778.503. The regulations set out
numerous examples by which employers may not avoid over-
time, none of which are violated by this plan. These regula-
tions outline that an employer may not set an artificially low
hourly rate upon which to calculate overtime; an employer
may not decrease the hourly rate in response to the number of
hours worked by an employee during the week; the employer
may not set the hourly rate for overtime hours, at a rate lower
than the regular rate especially when the overtime work is
identical to that performed during regular hours; an employer
may not agree with employees that overtime hours worked do
not count as hours worked; an employer may not set the
hourly rate for regular work lower during the weeks when
overtime is worked than it would be set in non-overtime
weeks; an employer cannot enter into an agreement not to
count hours over 40 in order not to pay for extra hours
worked; an employer cannot pay an employee the same
amount each week (including both non-overtime hours and
overtime hours) without regard to the overtime worked. Parth
produced no evidence to show that the regular rates, memori-
alized in the CBA, fell into any of these categories, or were
artificially low, or that PVHMC was attempting to set rates in
a manner that would relieve it of the obligation to pay time-
and-a-half whenever an employee worked more than eight
hours in a day.
Lastly, Parth and the other nurses are paid overtime under
the PVHMC plan when due. Their overtime wages are calcu-
lated according to the standards set forth in 29 C.F.R.
§ 778.115 and the CBA, (a regular rate for the first eight
hours, time and a half for the next four hours, and double pay
for any additional hours for which the nurse volunteers). Parth
appears to take issue with the manner by which her “regular
pay” is calculated, and basically argues that instead of using
the weighted average method of determining the regular rate,
18588 PARTH v. POMONA VALLEY HOSPITAL
PVHMC should be required to use the “average blended rate”
of pay. The “average blended rate” is the total pay earned by
a nurse in a 12-hour shift, divided by 12. To the extent Parth’s
argument is that average blended rate calculation is the only
permissible “regular rate” of pay under the FLSA, we reject
it. The weighted average method of calculation is not prohib-
ited by the FLSA, and has been upheld by other circuits. See,
e.g., Gorman, 488 F.3d at 596 (“This Court has already vali-
dated the weighted average method of determining the regular
rate, which we described as ‘properly calculated by adding all
of the wages payable for the hours worked at the applicable
shift rates and dividing by the total number of hours
worked.’ ”) (quoting Brock v. Wilamowsky, 833 F.2d 11, 14
(2d Cir. 1987)).
[11] The district court noted that “Parth proffer[ed] no
argument or support for the proposition that the regular rate
for the 12-hour [nurses] was not properly determined, or that
overtime pay was not properly calculated using the pay rates
set out in the CBA.” On appeal, Parth does not challenge the
calculation of the overtime rate, except to say that the regular
rate upon which it is based is impermissible. Accordingly, we
conclude that Parth has not presented any evidence or con-
vincing authority to suggest that PVHMC’s pay plan contra-
venes Congress’s goals in enacting the FLSA or is an artifice
to avoid paying overtime.
C.
Parth also argues that PVHMC’s pay plan is unlawful,
because nurses working both the 8-hour and 12-hour shifts
perform the same work, but are paid at different rates. We
find no authority that suggests employees cannot be paid dif-
ferent rates for different shifts, and Parth fails to present any
authority to the contrary. We do, however, find ample author-
ity from other circuits that supports PVHMC’s argument that
workers working different shifts may be paid different rates.
See, e.g., Gorman, 488 F.3d at 595-97; Conner, 428 F. Supp.
PARTH v. POMONA VALLEY HOSPITAL 18589
2d at 636-37; Allen v. Bd. of Pub. Educ., 495 F.3d 1306,
1312-13 (11th Cir. 2007). As the Supreme Court has noted,
employers and employees are generally free to set the pay
rates if minimum wages and overtime payments are paid
when due. See Youngerman-Reynolds, 325 U.S. at 424.
[12] Parth derives her sole support for this argument from
29 C.F.R. § 778.316, which prohibits employers from setting
one hourly rate for the first 40 hours of work and a lower
hourly rate for statutory overtime hours. See 29 C.F.R.
§ 778.316. The regulation does not, however, speak to the cir-
cumstances present in this case. 29 C.F.R. § 778.316 does not
prohibit rate reductions so long as the rate reduction applies
generally, to all hours, days, and weeks worked by an
employee, without consideration of whether overtime is
worked.
IV. CONCLUSION
We conclude, as did the district court, that Parth failed to
adduce any evidence or authority to support her claim that
PVHMC’s pay plan violates the FLSA. We conclude that
PVHMC was justified in responding to its employees’
requests for an alternative work schedule by adopting the
sought-after schedule and paying the employees the same
wages they received under the less-desirable schedule. There
is no evidence to suggest that PVHMC is attempting to avoid
paying its employees overtime wages, nor can we find any
authority that prohibits PVHMC from paying employees dif-
ferent hourly rates when they are assigned different shifts.
AFFIRMED.