No. 85-461
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
BRUCE W. PHILLIPS, et al.,
Plaintiffs and Appellants,
-vs-
LAKE COUNTY,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Christian, McCurdy & Wold; Douglas J. Wold argued,
Polson, Montana
Manley & Smith; Brian J. Smith, co-counsel, Polson,
Montana
For Respondent:
French, Mercer, Grainey & Duckworth; Edward K.
Duckworth argued, Polson, Montana
For Amicus Curiae:
Michael G. Alterowitz, Carbon County Attorney,
Red Lodge, Montana
Wm. Nels Swandal, Park County Attorney, Livingston,
Montana
Richard Simonton, Dawson County Attorney, Glendive,
Montana
Submitted: April 1 1 1986
Decided: June 10, 1986
Filed : J U N 1 0 1986
Clerk
Mr. Justice John C. Harrison delivering the Opinion of the
Court.
Appellants are deputy sheriffs ("Deputies") of Lake
County, Montana. Each Deputy separately filed a complaint
stating, among other things, a wage claim against respondent
Lake County ("Lake County") seeking payment for overtime
hours worked. Their individual claims were consolidated by
the Lake County District Court. The Deputies seek
$1,389,021.60 in overtime, penalties, interest and attorney's
fees from Lake County. An agreed statement of facts was
submitted and both the Deputies and Lake County filed motions
for partial summary judgment on the issues of: (1) whether
deputy sheriffs are entitled to compensation for overtime
hours worked in excess of 40 hours per week or 2,080 hours
per year, (2) whether a "year of service" for calculating
longevity benefits should be based on a calendar year or
2,080 hours, a.nd (3) whether the Deputies are entitled to
the statutory penalties, interest, costs and attorney's fees.
The Honorable C. R. McNeil, District Judge, denied the
Deputies motion for partial summary judgment and granted
summary judgment in favor of Lake County. The Deputies filed
a Motion for Reconsideration. A hearing was held and the
summary judgment in favor of Lake County was affirmed. The
Deputies appeal from the order denying their motion for
partial summary judgment and granting summary judgment to
Lake County. We affirm the judgment of the District Court.
The facts relevant to the disposition of this appeal
are basically undisputed by the parties.
Each of the appellant Deputies was a duly appointed and
acting deputy sheriff of Lake County, Montana. The
respondent is the Lake County Board of Commissioners. At all
times relevant to this appeal it was the policy of the Lake
County Sheriff's Department to schedule its road Deputies,
including the complaining Deputies, to work in excess of
2,080 hours per year (40 hours X 52 weeks=2,080). Their
routine work schedule was to work six days each week and
often more than eight hours per day. Each Deputy has at all
times been paid a monthly salary. Since October 1, 1981, the
Deputies were paid longevity pay at the rate of 1% for each
calendar year of employment beginning on their employment
anniversary date following October 1, 1981. Lake County
never established, by resolution, that any undersheriff or
deputy sheriff who worked in excess of his regularly
scheduled work period would be compensated for his overtime.
Part-time employees of the Lake County Sheriff's Department,
who were not deputy sheriffs, were paid overtime.
As of July 1, 1984, Lake County by resolution began
paying each deputy sheriff the additional sum of $300 per
month as compensation for overtime. On April 15, 1985, the
United States Supreme Court conclusively decided the case of
Garcia v. San Antonio Metropolitan Transit Authority (1985),
U.S. , 105 S.Ct. 1005, 83 L.Ed.2d 1016, which made
overtime compensation for the Deputies mandatory. In June
1985, Lake County paid all Deputies overtime retroactive to
April 15, 1985, pursuant to the requirements of Garcia and
the federal Fair Labor Standards Act. The County subtracted
from the retroactive overtime payments the amount of $300 per
month for the months of April and May, 1985. Since June 1,
1985, the Lake County deputy sheriffs were no longer working
6 days per week.
The Deputies present the following issues for review by
this Court:
(1) Whether the Deputies are entitled to overtime
compensation after October 1, 1981?
(2) Whether the Deputies are entitled to have
longevity benefits calculated at the rate of 1% for every
2,080 hours worked rather than 1% for each calendar yea.r?
(3) Whether the Deputies are entitled to overtime
benefits at the rate of time-and-a-half over 40 hours per
week beginning April 15, 1985?
(4) Whether the Deputies are entitled to compensation
for "on-call" time?
(5) Whether the Deputies are entitled to penalties,
interest, attorney's fees and costs?
The fundamental issue to be decided in this case is
whether the Deputies are entitled to compensation for
overtime hours worked in excess of 40 hours per week or 2,080
hours per year from October 1, 1981, to April 15, 1985. At
the outset this Court recognizes the potential importance the
answer to this issue has for the State of Montana. For this
reason we compliment counsel for both parties on presenting
exhaustive and scholarly arguments on this importa.nt and
complex question. We also note that after thoroughly
analyzing this issue, we can find little fault with Judge
McNeilrs reasoning found in his orders granting and affirming
summary judgment for Lake County. Therefore, we basically
adopt the rationale set forth in Judge McNeilrs decisions and
offer the following opinion as a supplement and explanation
to the same.
Whether the Deputies are entitled to overtime
compensation after October 1, 1981?
The heart of this first issue centers around this
Court's decision in City of Billings v. Smith (1971), 158
Mont. 197, 490 P.2d 221. This case was decided immediately
after the 1971 Montana Legislature adopted the Minimum Wage
and Overtime Compensation Act ("MWOCA" which is codified in
)
§ 39-3-401, et seq., MCA. In City of Billings this Court was
basically asked to decide whether (1) the MWOCA itself was
constitutional; and (2) whether policemen, firemen and deputy
sheriffs were covered by the MWOCA. The Court found that the
MWOCA was constitutional, and that policemen, firemen and
deputy sheriffs were not covered by the Act. The Court held
that policemen and firemen were both "professional employees"
and thus exempt from the MWOCA under the professional
employee exclusion. However, the Court did not find that
deputy sheriffs were also "professional employees." Instead,
the Court went in a totally different direction to exempt the
deputy sheriffs from the MWOCA. The Court found that deputy
sheriffs were exempt from the MWOCA by virtue of
"particularized and special" statutory treatment within
Montana's code. The particularized and special treatment
which exempted the deputy sheriffs from the MF70CA was a
statute which set their total compensation at 90% of the
sheriff's salary ( S 25-604, R.C.N., 1947). The Court
reasoned in City of Billings that when a general statute
(MWOCA) and a specific statute ($ 25-604, R.C.M., 1947) are
inconsistent, the latter is paramount to the former. Thus,
under this analysis, the deputy sheriffs were not entitled to
overtime compensation under the MWOCA. As the Court
explained in City of Billings:
As to deputy sheriffs, an examination reveals
particularized and special treatment by the
legislature sufficient to remove them from the
Minimum Wage Act.
Where one statute deals with a subject in general
and comprehensive terms, and another deals with a
part of the same subject in a more minute and
definite way, the latter will prevail over the
former to the extent of any necessary repugnamcy
between them. (Citations omitted).
The provisions of section 25-604, R.C.M. 1947, and
the provisions of the Minimum Wage Act of 1971 are
in conflict. In such case the special act will
prevail over the general provisions of the Minimum
Wage Act.
City of Billings, 490 P.2d at 228, 229, 230.
The Deputies point out this statutory conflict between
the MWOCA and § 25-604, R.C.M., 1947, existed until 1981 when
the legislature enacted House Bill 558 as Chapter 603 of the
1981 Session Laws (encoded in Title 7, Chapter 4, Part 25,
MCA). The Deputies essentially argue that Chapter 603 of the
1981 Session Laws struck down the "90% limitation" of
§ 25-604, R.C.M., 1947. In doing so, the Deputies argue,
Chapter 603 struck down the only obstacle in allowing them to
receive overtime compensation under the MWOCA. The Deputies
argue that since the reason for the rule denying them
overtime compensation ceased to exist effective October 1,
1981, overtime compensation should be allowed from that date
forward.
Lake County, on the other hand, argues that when the
legislature struck down 5 25-604, R.C.M., 1947, by enacting
Chapter 603 of the 1981 Session Laws, the Deputies were still
excluded. from the MWOCA by this Court's holding in
City of Billings. In other words, Lake County argues that
the Deputies' compensation continued to be controlled by
specific legislation thus exempting then: from the overtime
provisions of the MWOCA. We agree.
Lake County correctly points out that Chapter 603 of
the 1981 Session Laws constitutes a specific statute
governing all forms of compensation to which deputy sheriffs
are entitled. The particular provisions of Chapter 603
merely redefined the forms of compensation which were
governed by the "90% limit" and § 25-604, R.C.M., 1947. The
City of Billings case holds that such a specific statute, in
and of itself, removes deputy sheriffs from coverage und.er
the MWOCA. City of Rillings, 490 P.2d at 229.
The resourceful argument of the Deputies cannot change
the essential fact that Chapter 603 of the 1981 Session Laws
remains to this date a "specific [provision] relating to [a]
specific [office]," and thus controls the issue of
compensation. City of Billings, 490 P.2d at 229. The
City of Billinqs decision applies with equal vigor and force
to Chapter 603 as it did to S 25-604, R.C.M., 1947. That is,
the MWOCA deals with the subject of overtime in a "general"
way, while Chapter 603 addresses the central topic of deputy
sheriffs' compensation, including overtime, in a more
"minute" and definite way. City of Billings, 490 P.2d at
229. The specific, therefore, must prevail over the general.
Consequently, the MFJOCA still does not apply to the Deputies.
It is also apparent to this Court that the legislature
intended the same result by enacting Section 7 of Chapter
603. Section 7 has been codified as S 7-4-2507, MCA. This
section holds that if there is a conflict between sections 2
through 5 of Chapter 603 and any other law (which
parenthetically must include the MWOCA) , that sections 2
through 5 govern with respect to deputy sheriffs. Section 7
of Chapter 603 provides:
7-4-2507. Deputy sheriff and undersheriff
provisions--construction. If there is a conflict
between 7-4-2508 through 7-4-2510 and any other
law, 7-4-2508 through 7-4-2510 govern with respect
to undersheriffs and deputy sheriffs.
After determining the MWOCA does not apply to the
Deputies, the critical question now becomes whether Chapter
603 of the 1981 Session Laws allows the Deputies to be
compensated for their overtime. After carefully analyzing
the arguments of the parties, we agree with the District
Court and Lake County that the legislative history of the
1981 Session clearly shows that the payment of overtime for
the Deputies and the rate thereof is optional at the
discretion of the Lake County Commissioners.
Chapter 603 of the 1981 Session Laws (encoded in Title
7, Chapter 4, Part 25, MCA) provides in section 3 that a
sheriff's department may establish a work period other than
the 40 hour workweek established by the MWOCA for determining
when an employee may be paid overtime. Section 4 of Chapter
603 provides that the county commissioners may, by
resolution, establish that a deputy sheriff who works in
excess of his regularly scheduled work period will be
compensated for the hours worked in excess of the work period
at a rate to be determined by the commissioners. Sections 3
and 4 of Chapter 603 have been codified as S 7-4-2509(1) and
( 2 ) respectively:
7-4-2509. Sheriff's department--work period in
lieu of workweek--overtime compensation. (1) (a)
A sheriff's department may establish a work period
other than the workweek provided in 39-3-405 or
7-32-2111 for determining when an employee may be
paid overtime.
(b) The aggregate of all work periods in a year,
when expressed in hours, may not exceed 2,080
hours.
(2) The board of county commissioners may by
resolution establish that any undersheriff or
deputy sheriff who works in excess of his regularly
scheduled work period will be compensated for the
hours worked in excess of the work period at a rate
tobedetermined by that board of county
commissioners. (Emphasis added.)
The District Court correctly points out in its order
affirming summary judgment that by use of the permissive word
may the legislature made it perfectly clear that payment of
overtime for deputy sheriffs and the rate thereof is optional
at the sole discretion of the county commissioners. The
legislative history of House Bill 558 (enacted a.s Chapter
603) and Senate Bill 375 supports the same conclusion.
As originally introduced, House Bill 558 was to provide
that restrictions imposed upon the compensation of deputy
sheriffs does not apply to payment for hours worked overtime.
Senate Bill 375, as originally introduced, provided that a
sheriff's department may establish a work period other than a
40 hour workweek for determining when an employee must be
paid overtime and further provided that any deputy sheriff
who works in excess of his work period must be compensated at
a rate not less than 1% times his hourly rate. Senate Bill
375 specifically provided:
NEW SECTION. Section 3. Option to establish
workperiod in lieu of workweek. (1) A sheriff's
department may establish a workperiod other than
the workweek provided in 39-3-405 for determining
when an employee must be paid overtime.
(2) The aggregate of all workperiods in a year,
when expressed in hours, may not exceed 2,080
hours.
NEW SECTION. Section 4. Compensation for hours
worked overtime. Any undersheriff or deputy
sheriff who works in excess of his regularly
scheduled workperiod must be compensated for the
hours worked in excess of the workperiod at a rate
of not less than 1% times the hourly rate at which
he is employed. (Emphasis added. )
As reported out of the Committee on State
Administration on Second Reading, the caption of House Bill
558 had been amended to read: "An Act to Revise the
Compensation Provisions Relating to Deputy Sheriffs and
Undersheriffs" and. contained the mandatory provisions
incorporated from Senate Bill 375 set forth above.
As passed in its final form, section 3
(5 7-4-2509 (1) (a)) was amended by changing the phrase "when
an employee must be paid overtime" to "when an employee may
be paid overtime." Furthermore, section 4 ( 5 7-4-2509(2))
was amended by deleting the provision that a deputy sheriff
must be compensated for overtime at a rate of 1% times his
hourly rate and substituting the provision as set forth above
that the commissioners may, by resolution, provide for
overtime and the ra.te thereof.
We conclude, as does the District Court, that by the
permissive language in the law passed by the 1981 legislature
and by the legislative history set forth above, that payment
of overtime for deputy sheriffs and the rate thereof is
optional at the discretion of the county commissioners. As
the District Court succinctly stated:
It is painfully clear that the legislature
considered the issue head-on, fully considered
mandating the payment of overtime hours for deputy
sheriffs at the same rate as the Minimum Wage Act
and decided to make such overtime payment and the
rate thereof optional at the discretion of the
county commissioners.. ..
It would be an insult
to the legislature to question their intent in
amending the legislation from the mandatory "must"
as introduced, to the permissive, discretionary -
"may" as passed by tha.t body.
As applied to the instant case, the Lake County
Commissioners exercised their discretion beginning October 1,
1981, by their failure to adopt a resolution providing for
the payment of overtime compensation to the Deputies under S
7-4-2509 ( 2 ) , MCA. This means the Deputies received no pay
for hours worked in excess of a 40 hour workweek. As the
District Court points out, this result may seem unfair, but
it was not unlawful.
As pointed out in the facts section of this opinion,
the Lake County Commissioners have now adopted a resolution
providing for the payment of overtime compensation to the
Deputies retroactive to April 15, 1985. This new resolution
was based on the United State Supreme Court decision of
Garcia v. San Antonio Metropolitan Transit Authority (1985),
U.S. , 105 S.Ct. 1005, 83 L.Ed.2d 1016, which
basically held that the minimum wage and overtime
compensation provisions of the Fair Labor Standards Act
("FLSA") are now to be enforced against states and their
political subdivisions. Therefore, overtime compensation for
the Deputies is now mandatory.
Whether the Deputies are entitled to have longevity
benefits calculated at the rate of 1% for every 2,080 hours
worked rather than 1% for each calendar year?
As part of the 1981 Legislature's program to redefine
the forms of compensation for deputy sheriffs, section 5 of
Chapter 603 (codified as § 7-4-2510, MCA) was enacted
providing as follows:
7-4-2510. Sheriff's department--longevity
payments. Beginning on the date of his first
anniversary of employment with the department and
adjusted annually, a deputy sheriff or undersheriff
is entitled to receive a longevity payment
amounting to 1% of the minimum base annual salary
for each year of service with the department. This
payment shall be made in equal monthly
installments.
The Deputies correctly point out that the language of
this statute is simple. Beginning on October 1, 1981, a
deputy sheriff is entitled to additional compensation of 1%
of the minimum base salary "for each year of service with the
department." The Deputies argue that the term "year of
service" means 2,080 hours as specifically defined by the
Attorney General. See, 39 Op. Att'y Gen. 78 (1982). Lake
County, on the other hand, argues the term "year of service"
means 365 days or a calendar year.
We hold the term "year of service" as used in
S 7-4-2510, MCA, should be given its ordinary meaning--365
days or a calendar year. We agree with Lake County and the
District Court that had the legislature intended that the
term "year of service" to mean 2,080 hours they would have
explicitly said that in the statute. Therefore, the Deputies
are entitled to longevity payments for each calendar year of
service with the department.
111.
Whether the Deputies are entitled to overtime benefits
at the rate of time-and-a-half over 40 hours per week
beginning April 15, 1985?
As noted above, the District Court found that the
United States Supreme Court case of Garcia mandated overtime
compensation for the Deputies effective April 15, 1985. The
net effect of the Garcia decision was to apply the federal
,
Fair Labor Standards Act ("FI,SAff)29 U.S.C. 5 201 et seq. to
the Deputies. Section 207 (k) of the FLSA provides basically
that the overtime threshold for the Deputies is the lessor of
216 hours per 28 day work period or the average number of
hours determined in a study done by the Secretary of Labor.
The results of the study done by the Secretary of Labor
provided the lesser figure of 171 hours per 28 day work
period (approximately 43 hours per 7 day work period). It is
this 171 hour threshold that is currently being applied to
the Deputies by Lake County and which was found to be
appropriate by the District Court.
The Deputies argue the proper threshold for
commencement of overtime in the state of Montana is 160 hours
under the MWOCA (40 hours per 7 day work period), not 171
hours. It must be observed, the Deputies stress, that the
holding of the Garcia case was simply that the FLSA applied
to governmental employees, including deputy sheriffs. It is
also true, the Deputies concede, that the maximum number of
hours that can be worked under the requirements of 5 207 (k)
of the FLSA is 171 hours per 28 days. However, the Deputies
point out, the FLSA also includes 5 218 (a) which provides as
follows:
Section 218. Relation to other laws.
(a) No provision of this Act or of any order
thereunder- shall excuse noncompliance with any
Federal or State law or municipal ordinance
establishing a minimum wage higher than the minimum
wage established under this Act or a maximum
workweek lower than the maximum workweek
established under this Act ...
The Deputies argue the purpose of 5 218 is to provide
the employee with a benefit of the lower maximum work week
established either by federal law (171 hours) or state law
(160 hours). Since the MtJOCA establishes a maximum workweek
lower than the maximum workweek established under the FLSA,
the Deputies argue there is no excuse for noncompliance with
the MWOCA.
The argument set forth by the Deputies may be
theoretically sound., but it is fundamentally flawed for one
very important reason--the MWOCA does - apply
not to the
Deputies. As explained under Issue I, the MWOCA does not
apply to the Deputies because of "particularized and special"
statutory treatment by the legislature. Therefore, because
the MF70CA does not apply to the Deputies, federal law (FSLA)
is the only law left to establish the payment of overtime for
the Deputies. Consequently, the Deputies are entitled to
compensation for overtime (retroactive to April 15, 1985)
pursuant to the requirements of Garcia and the FLSA, and Lake
County to date has been properly compensating the Deputies
based on this standard.
IV.
Whether the Deputies are entitled to compensation for
"on-call" time?
As a condition of their employment, the Deputies argue
they are required to be "on-call" at various times by Lake
County. The Deputies now argue they are entitled to be
compensated by Lake County for this "on-call" time. The term
"on-call" as used in this case means time which is after
regularly scheduled work hours for the Deputies, or a day off
when the Deputies are out of uniform. The Deputies claim the
on-call policy of Lake County severely restricts their
off-duty time because they are required to either remain at
home or in a patrol car in anticipation of being sum~oned
back to work. The current policy of Lake County is not to
compensate the Deputies for on-call time.
We agree with the District Court that payment, if any,
and the rate to be paid, if any, for "on-call" time was
entirely discretionary with Lake County prior to the
effective date of the Garcia case, April 15, 1985. The
Deputies claim for on-call time prior to Garcia is simply
another overtime claim which was addressed by this Court
under Issue I. Since the Lake County Commissioners did not
exercise their discretion and pass a resolution providing for
the compensation of on-call time, the Deputies are not
entitled, as a matter of law, to any such compensation.
With regard to compensation for on-call time since
April 15, 1985, we adopt the argument set forth by Lake
County that on-call time for the Deputies is not compensable
as work time. Lake County has provided this Court with a
practical test to gauge just what constitutes "work.l1 The
United States Supreme Court, as Lake County explains, has
laid down a three-part standard to define work or employment:
[Wle cannot assume that Congress [in the Fair Labor
Standards Act] here was referring to work or
employment other than as those words are commonly
used--as meaning [I] physical or mental exertion
(whether burdensome or not) [2] controlled or
required by the employer and [3] pursued
necessarily and primarily for the benefit of the
employer and his business.
Tennessee Coal, Iron and Railroad. Co. v. Muscoda Local No. 123
(1944), 321 U.S. 590, 598, 64 S.Ct. 698, 703, 88 L.Ed 949,
956.
Tennessee Coal was a case decided by the Supreme Court
under the FLSA. The high Court, in announcing this test, was
interpreting S 203 (g) of the FLSA which reads "'employ'
includes suffer permit work. l1 U.S.C.
As Lake County points out, this is exactly the same
definition of "employ" that the Montana Legislature has
adopted in S 39-3-201(2), MCA, ("'employ' means permit or
suffer to work") .
We therefore adopt the Supreme Court's well-reasoned
definition of work or employment as used in interpreting
Montana's identical statutory language.
Further, as Lake County points out, the tenor of
federal law in this circuit supports the conclusion that
on-call time is to be distinguished from work time. The
Ninth Circuit Court of Appeals states:
The Act [FLSA] does not require payment of wages to
an employee merely because he is away from home.
Nor d.oes the Act undertake to regulate or restrict
reasonable and bona fide agreements whereby an
employee agrees to be available if needed.
'Working' is not synonymous with availability for
work.
Fox v. Summit King Mines (9th Cir. 1944), 143 F.2d 926, 932.
We agree with Lake County that the Deputies claim under
this issue does not stand up under the Tennessee Coal test.
On-call time for the Deputies requires no physical or mental
exertion. At best, the Deputies may claim they are making
themselves available for work. The mere availability for
work does not automatically translate into compensable "work"
time under any common understanding of that term.
Furth.ermore,Lake County, pursuant to Garcia and the FLSA, is
currently paying the Deputies overtime compensation. And, as
noted by Lake County, in those occasional emergency
situations where a Deputy is called back for extra duty, he
will be fully compensated for any overtime actually worked.
We hold that the Deputies on-call time since October
15, 1985, is not compensable as work time, and therefore
should not be entered into any calculation for overtime
compensation.
v.
Whether the Deputies are entitled to penalties,
interest, attorney's fees and costs?
As a result of this litigation, the Deputies point out,
the District Court ruled they were entitled to overtime
compensation retroactive to April 15, 1985, pursuant to the
Garcia decision. The Deputies argue the effect of the
District Court's order is a finding in their favor that Lake
County failed to pay its employees as required by law. That
finding, the Deputies argue, entitles them to a mandatory
penalty ($ 39-3-206, MCA) , interest ($ 27-1-211, MCA) ,
attorney's fees and costs ( S 39-3-214, MCA) under state law.
The Deputies contend that although they specifically
raised their demands for penalties, interest, attorney's fees
and costs to the District Court, the court ruled these
damages were not applicable. The Deputies argue this was
error since the court ruled in their favor as to part of
their claim for overtime compensation. Therefore, the
Deputies request that this Court order Lake County to pay a
penalty, interest, attorney's fees and costs on the
post-Garcia overtime which the District Court found to be due
and unpaid.
We hold that the Deputies claim for the above mentioned
damages must fail. Although the District Court ruled that
the Deputies were entitled to overtime compensation from
April 15, 1985, forward, this finding does not entitle the
Deputies to damages under state law. As the Deputies readily
admit, their award of overtime compensation was based on the
United States Supreme Court's decision in Garcia. In relying
on the Garcia decision, the Deputies are not contending that
their post-April 15, 1985, overtime was awarded under color
of state law. Rather, the District Court's award must be
traced directly to the Deputies federal claims under Garcia
and the FLSA. Therefore, because the Deputies did -
not
receive their overtime compensation award under state law, a
state law award of a penalty, interest, attorney's fees and
costs is entirely inappropriate. Consequently, the Deputies
claim for these damages under Montana law must fa.il.
The Deputies in their briefs and during oral argument
failed to assert that Lake County might also be liable for
damages under federal law because of their post-Garcia
overtime entitlement. This Court must assume that because
the Deputies failed to discuss any possible damages against
Lake County under federal law, they are conceding that Lake
County is not liable for any penalties, interest, attorney's
fees or costs under the FLSA. After reviewing the applicable
law in this a-real we agree with the Deputies tacit
conclusion.
The judgment of the District Court is affirmed.
Justices
Mr. Justice Frank B. Morrison, Jr., dissenting:
7: respectfully dissent from the majority opinion and
would hold that the deputies are entitled to the overtime
provisions of 5 39-3-405, MCA, which provides that no
employer shall employ any employees for workweek longer than
40 hours unless that employer pays one and one-half times the
hourly wage rate.
The majority opinion assumes that the Lake County Sher-
iff established a work period in compliance with the provi-
sions of S 7-4-2509, MCA. Judge McNeil apparently made the
same assumption. The record conclusively shows that no such
election was made.
Section 7-4-2509(1), MCA, states:
Sheriff's department--work period in lieu of
workweek--overtime compensation. (1) (a) A sheriff's
department may establish a work period other than
the workweek provided in 39-3-405 or 7-32-2111 for
determining when an employee may be paid overtime.
(b) The aggregate of all work periods in a year,
when expressed in hours, may not exceed 2080 hours.
(emphasis supplied.)
Deputy sheriffs work irregular hours. Some weeks they
may work more than 40 hours per week because of working
special events. Some weeks they might work less. Counties
did not want to be subject to paying time and a half under
the minimum wage law, $ 39-3-405, MCA, where deputies work
more than 40 hours in one week but less than 40 hours in
another week. This situation led to the enactment of
$ 7-4-2509, MCA. If a county wished, it could elect to
escape the provisions of 5 7-4-2509, MCA, by establishing set
work periods where the total hours in a year would not exceed
2,080, which is 40 hours per week times 52 weeks.
Lake County did not ever establish work periods pursuant
to 5 7-4-2509, MCA. Therefore, under the clear terms of the
statute, 5 39-3-405, MCA, applies.
The majority opinion mistakenly states that the heart of
this issue "centers around the Court's decision in City of
Billings v. Smith (1971), 158 Mont. 197, 490 P.2d 221." The
Billings case has no application because in 1981 the legisla-
ture enacted § 7-4-2509, MCA.
The majority opinion correctly points out that the
specific controls over the general. Section 7-4-2509, MCA,
is the specific statute which controls the disposition of
this case. Under that statute, Lake County failed to
establish a work period and, by virtue of the statute, is
subject to the payment of overtime wages pursuant to the
mandate of § 39-3-405.
This case should be reversed and remanded for proceed-
ings in accordance with the views expressed in this dissent.