United States Court of Appeals,
Eleventh Circuit.
No. 96-4470.
DADE COUNTY, FLORIDA, A Political Subdivision, Petitioners-Appellants,
Florida Sheriff's Association, Amicus Curiae,
v.
Jose ALVAREZ, Andrew Benjamin, Ted Bradley, Peter Caroddo, Paul Chahal, et al.,
Respondents-Appellees.
Oct. 16, 1997.
Appeal from the United States District Court for the Southern District of Florida. (No. 94-636-Civ-
Atkins), C. Clyde Atkins, Judge.
Before EDMONDSON, Circuit Judge, and KRAVITCH and WOOD*, Senior Circuit Judges.
KRAVITCH, Senior Circuit Judge:
Several current and former members of the Metro-Dade Police Department's Special
Response Team ("SRT") brought this action against Dade County (the "County") under the Fair
Labor Standards Act, 29 U.S.C. §§ 201, et seq., ("FLSA" or the "Act"), to recover overtime pay for
off-duty hours spent performing physical fitness training. After a jury verdict in their favor, the
district court entered judgment for the SRT officers. Because we conclude that physical training
conducted off duty by SRT officers in order to maintain physical fitness standards mandated by their
employer is not compensable work within the meaning of the FLSA, we reverse the judgment of the
district court.1
I.
The SRT is a specialized unit of the Metro-Dade Police Department that assists police
department personnel and other government agencies during potentially life-threatening situations.
Its officers are highly trained in the use of special weapons, equipment, and techniques designed to
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
1
Appellees' motion to strike portions of appellant's reply brief, previously carried with the
case, is denied.
minimize the risk of harm to officers and civilians in situations involving barricaded subjects,
snipers, hostages, riots or other similar civil disturbances, and high-risk search and arrest warrants.
Because SRT call-outs often require extreme physical exertion, involve serious risk to human life,
and can last as long as twenty-four hours, "[g]ood physical fitness is recognized as a vital and
necessary quality for individuals assigned to SRT."2
For this reason, the County requires SRT officers to be in excellent physical condition.
Prospective SRT personnel must pass a physical fitness examination before enrolling in the SRT
training school. At the training school, SRT trainees undergo rigorous cardiovascular and strength
training. Once members of the SRT, officers are frequently monitored to ensure that they are
physically capable of performing SRT functions. Until recently, SRT supervisors tested the
cardiovascular condition and strength of incumbent officers twice a year, and officers who failed this
fitness exam were subject to reassignment outside the SRT.3
At the time this lawsuit was filed in April 1994, SRT officers rotated between two weeks on
primary status, during which they trained in SRT tactics and responded to calls for SRT assistance,
and two weeks on warrant status, in which they served felony arrest warrants on high-risk
individuals.4 When on primary status, SRT officers were allotted two hours of on-duty physical
fitness training each day, which they used to conduct long-distance runs, weight training, and
2
Plaintiffs' Ex. 21: 2-16 ("Metro-Dade Special Response Team, Standard Operating
Procedures, September, 1990.").
3
The test included: running 1.5 miles in 12 minutes or less; completing 4 pull-ups while
wearing 25 pounds of weight; completing 50 sit-ups in two minutes or less; bench pressing
body weight plus 25 pounds; completing a hand grip test of a minimum of 125 pounds; and
doing 50 push-ups. Officers who failed the test were given thirty days of remedial training to
regain the required level of physical conditioning. In the summer of 1995, the SRT eliminated
the semi-annual fitness exam, and SRT team leaders now evaluate SRT officers' physical fitness
as part of a general monthly evaluation.
4
In June 1994, the County changed the rotation so that SRT officers now alternate between
three weeks on primary status and one week on warrant status.
2
calisthenics.5 Prior to 1990, SRT members also were permitted to train on duty twice a week for two
hours during the warrant cycle. Since 1990, however, the SRT has not allotted any on-duty physical
training time for officers on warrant status.6
Notwithstanding the restriction on on-duty training during the warrant cycle, SRT officers
were expected to maintain their physical conditioning at all times. SRT supervisors instructed
officers that they had to stay in shape regardless of whether they had adequate on-duty training time.
For example, one SRT officer testified: "I have been told by my supervisors that it would be
necessary and beneficial for me to work out in an off-duty status to maintain my physical fitness to
get the job done."7 An SRT Team Leader testified that he told his officers that "they had to continue
to do their physical training whether they had the time on duty, and if they didn't ... that they would
have to do it on their own time."8 Other officers testified that off-duty training during the warrant
cycle was necessary to maintain the level of fitness required for the job. In addition, expert
witnesses testified that off-duty training was necessary during the warrant cycle because, without
it, officers would suffer detraining and lose the endurance and performance abilities necessary for
the SRT assignment.
Although SRT supervisors instructed officers to do whatever was necessary to maintain
adequate cardiovascular and strength levels for the SRT assignment, they never directed officers to
engage in any specific off-duty routine or training. The County required only that the officers
remained in adequate shape to perform SRT functions and pass the physical fitness exam. The
method, location, and amount of off-duty training were left to the officers' complete discretion. As
5
Due to emergency call-outs, SRT officers often were not able to use all of their on-duty
physical training time.
6
On occasion, SRT officers are pulled from the warrant cycle to perform primary status
duties. In such cases, the officers may have the opportunity to conduct physical training on duty.
7
R:12-180.
8
R:12-201.
3
one officer testified: "We are not told that we have to do weight training or we have to do running
off duty."9 Another stated: "Off duty I train when I like, where I like, as long as I like, with in the
back of my mind the importance of getting my job done."10
II.
Appellees brought this action alleging, inter alia, that the County violated the FLSA by
refusing to compensate them for the hours they spent exercising off duty.11 At the conclusion of
trial, the district court submitted a special verdict to the jury, which made the following factual
determinations:
1. Plaintiffs' off-duty physical training or exercise is required or controlled by the County;
2. Plaintiffs' off-duty physical training or exercise is performed predominantly for the benefit of the
County;
3. Plaintiffs' off-duty physical training is an integral and indispensable part of their principal
activities as SRT officers; and
4. Dade County either knew, or showed reckless disregard, that its conduct violated the FLSA.
The district court then entered judgment for appellees, concluding that the SRT officers' off-duty
physical training is compensable work under the FLSA and that the County willfully violated the
Act. After denying the County's renewed motion for judgment as a matter of law made pursuant to
Fed.R.Civ.P. 50(b), the district court certified for immediate appeal the question of whether
appellees' off-duty exercise constitutes compensable work under the FLSA.12 We granted the
County's petition for leave to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
9
R:12-45.
10
R:12-181.
11
Appellees also alleged, and the district court determined, that the County violated their
Collective Bargaining Agreement ("CBA") by failing to pay them for off-duty training and
violated the FLSA and the CBA by not compensating them for overtime hours worked in SRT
training schools and courses.
12
The parties agreed to bifurcate the issues of liability and damages, and the district court
stayed the resolution of damages pending the outcome of this appeal.
4
We review the district court's denial of the County's renewed motion for judgment as a
matter of law de novo, applying the same legal standard as the district court. Shukla v. BP
Exploration & Oil, Inc., 115 F.3d 849, 851 (11th Cir.1997). The question of whether a particular
set of facts and circumstances constitutes work under the FLSA is a question of law. Birdwell v.
City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir.1992) As we stated in Birdwell, "[i]t is for the
court to determine if a set of facts gives rise to liability; it is for the jury to determine if those facts
exist." Id. at 808. The County is thus entitled to judgment as a matter of law if the facts, as
interpreted in the light most favorable to the SRT officers, afford no basis for finding that their
off-duty exercise constitutes work for the purposes of the FLSA.
III.
Congress enacted the FLSA in 1938 to "guarantee either regular or overtime compensation
for all actual work or employment." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321
U.S. 590, 597, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944). The FLSA generally requires employers to
pay overtime for "employment in excess of [forty hours] at a rate not less than one and one-half
times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1). By not
providing a definition of "work" or "employment" in the FLSA, Congress left it to the courts to
determine which employment-related activities are compensable under the Act.
Generally, courts have construed work to mean all activities "controlled or required by the
employer and pursued necessarily and primarily for the benefit of his employer and his business."
Muscoda, 321 U.S. at 598, 64 S.Ct. at 703 (holding that underground travel to iron ore mines was
compensable work). Whether an off-duty activity is conducted predominately for the benefit of the
employer depends on the degree to which an employee's freedom is undermined by the work-related
activity. "[I]t is clear that an employee's free time must be severely restricted for off-time to be
construed as work time for purposes of the FLSA." Birdwell, 970 F.2d at 810 (holding that on-call
waiting time was not compensable because "detectives' off-time was not so restricted that it was not
used predominately for their benefit"); see also Avery v. City of Talladega, Ala., 24 F.3d 1337, 1347
5
(11th Cir.1994) (holding that meal time was not compensable because officers "are free to spend
their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and
do not leave the jurisdiction").
The Portal-to-Portal Act, 29 U.S.C. §§ 251, et seq., further provides that no employer shall
be liable under the FLSA for activities which are "preliminary to or postliminary to" the principal
activity or activities which the employee is employed to perform. 29 U.S.C. § 254(a)(2). Activities
performed before or after the regular work shift are thus compensable under the FLSA only if they
"are an integral and indispensable part of the principal activities for which covered workmen are
employed." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 100 L.Ed. 267 (1956)
(holding that showering and clothes-changing by workers using caustic and toxic materials were
compensable activities).
The Department of Labor has issued regulations to apply these general principles in the
specific context of employment-related training activities. Under these regulations, training
programs need not be counted as working time if: (1) attendance is outside the employee's regular
working hours; (2) the employee does not perform productive work during the program; (3)
attendance is voluntary; and (4) the program is not directly related to the employee's job. See 29
C.F.R. § 785.27; see also Price v. Tampa Elec. Co., 806 F.2d 1551 (11th Cir.) (per curiam )
(applying § 785.27), cert. denied, 483 U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987).
Applying these regulations in another case involving physical fitness training performed by
a police department's SRT, the Department of Labor Wage and Hour Administrator (the
"Administrator") concluded that off-duty training does not qualify as a compensable training
activity. See Opinion Letter of the Wage and Hour Administrator, Maria Echaveste (June 1, 1994).
In that case, the SRT officers, like appellees, were tested semi-annually to ensure that they could
continue to meet the physical fitness standards required by their job. They also contended that a
certain amount of off-duty training was required to maintain these standards. Nonetheless, the
Administrator concluded that the off-duty training was not shown to be "required or directly related
6
to the SRT job. Such physical training is of a general nature that is beneficial to any individual,
whether or not he or she is an SRT officer." Id. at 2. The Administrator therefore ruled that the
off-duty physical training did not constitute working time within the meaning of § 785.27, and thus
was not compensable under the FLSA. Accord Opinion Letter of the Wage and Hour Administrator,
No. 1589 (September 12, 1985) ("Time voluntarily spent by police and fire fighters to maintain their
physical fitness is not considered working time, even though fitness is a job requirement.").
The Administrator's application of the training regulations to the question of off-duty
exercise provides us with valuable guidance for judging the facts before us. "[T]he rulings,
interpretations and opinions of the Administrator under this Act, while not controlling upon courts
by reason of their authority, do constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140,
65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); see also Townsend v. Mercy Hosp. of Pittsburgh, 862 F.2d
1009, 1012 (3d Cir.1988) ("Although we are not bound by opinions of the Wage-Hour
Administrator, the Administrator's expertise acquired through day-to-day application of the statute
makes us hesitant to contravene such opinions unless the statute plainly requires otherwise.") (citing
Skidmore, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124).
After carefully analyzing the factual record in this case in accordance with the regulations
issued by the Department of Labor, we conclude that the off-duty time spent by the SRT officers
maintaining physical fitness standards mandated by their job is not compensable work within the
meaning of the FLSA. First, there is no dispute here that the officers' off-duty fitness training was
conducted outside of their regular working hours. Second, it is clear that the officers did not perform
any productive work while conducting off-duty physical training. SRT officers are employed to
respond to potentially life-threatening situations, and no such work was undertaken while they were
exercising.
Third, the officers' off-duty training satisfies the voluntariness requirement of § 785.27. The
SRT supervisors required only that the officers pass the semi-annual fitness test. Appellees
7
presented no evidence that they were required to spend a specific amount of time training or to
perform certain exercise routines during their off-duty hours. Moreover, appellees did not suggest
that their employment would be adversely affected if they did not participate in any particular
off-duty activities, as long as they could pass the fitness tests. In conducting off-duty exercise, SRT
officers were free to train at any location, at any time, and for any duration. Given the freedom the
officers enjoyed in selecting their off-duty activities, we conclude that the actual off-duty physical
training performed by individual officers was voluntary within the meaning of the regulations.
Finally, we conclude that the officers' off-duty physical training was not directly related to
their SRT employment. In this case, the officers' physical fitness training was necessary to maintain
a level of physical conditioning that each SRT officer already had attained. The County, by
administering the semi-annual fitness exam, required only that the officers sustain the level of
physical fitness established during the SRT training school and further developed during the primary
cycle's on-duty cardiovascular and strength training activities. The County did not require the
officers to acquire or develop a skill unique to their employment as SRT officers. Although physical
fitness training allows SRT officers to perform their core employment function of responding to
emergency situations, such training also provides the individual officers with benefits that extend
beyond their employment position. The mere fact that fitness training must be undertaken off duty
in order to perform SRT functions is insufficient to establish that such activity is directly related to
the employee's job. Because the SRT officers' off-duty fitness training satisfies all of the four
criteria listed in the regulations, we conclude that the officers' off-duty training need not be counted
as working time.
The conclusion we reach by applying the Department of Labor's regulations is identical to
the result suggested to us by the more general principles that courts have used to define work under
the FLSA. In this case, SRT officers had complete freedom to define an off-duty physical training
regimen. The sole limitation placed upon the officers by the County was that they maintain the level
of physical conditioning required by the job of SRT officer. This single requirement did not
8
severely restrict the freedom of SRT officers, all of whom were active and physically fit when they
applied for a position with the team. Moreover, maintaining proper physical fitness benefits
individual officers in various ways that are separate from their SRT employment. Given the
flexibility afforded SRT officers in conducting off-duty fitness training and the personal value of
such exercise, we conclude that the off-duty exercise performed by individual officers—whether at
home, at a private gym, or at a county facility—cannot be considered to have been performed
predominately for the benefit of the County.
Similarly, the off-duty training of the SRT officers cannot be said to be an integral and
indispensable part of the principal activity for which these officers are employed. SRT officers are
not employed to conduct physical training or even to attain certain physical fitness standards.
Rather, SRT officers are employed to provide rescue services during potentially life-threatening
situations. The mere fact that a high level of physical conditioning is necessary to perform these
services does not transform off-duty exercise into work for purposes of the FLSA. We therefore
conclude, as a matter of law, that off-duty physical training mandated by the SRT's job requirements
does not constitute compensable work under the Act.
IV.
Accordingly, the judgment in favor of appellees is REVERSED, and this case is
REMANDED to the district court for entry of judgment in favor of appellant.
REVERSED and REMANDED.
9