dissenting:
The majority today holds that appellee Johnson’s written, express agreement to the City’s wage plan promulgated pursuant to 29 C.F.R. §§ 553.222, 553.223 is ineffective on the grounds that his consent was given involuntarily and under economic duress. Because I am of opinion that the requirements contained in the City’s duly-promulgated plan became conditions of Johnson’s employment with the City, and that the concepts of voluntariness and economic duress have no application to an express agreement by an employee in this setting, I respectfully dissent.
On two separate occasions, October 21, 1985 and February 13, 1989, Johnson expressly agreed to the exclusion of time spent sleeping and eating from work time under the City’s wage plan. Johnson expressed his agreement to this plan both by signing written statements to that effect and by choosing to continue his employment as a Columbia firefighter. I believe that, in determining whether the City’s threat of termination constitutes duress under South Carolina contract law, the major*133ity asks and answers the wrong question. In my opinion, the correct question in this case is whether 29 C.F.R. §§ 553.222, 553.-2231 create an entitlement to the inclusion of sleep and meal time in firefighters’ work time that, in practical effect, can be taken away only in exchange for wage or benefit concessions on the part of the City.
I find the notion that §§ 553.222, 553.223 were intended to create an entitlement to the inclusion of sleep and meal time in compensable work time to be incompatible with the Fair Labor Standards Act’s (FLSA) general scheme of providing several different compensation plans that employers may choose to implement with the “agreement” of their employees.2 If the majority is correct in holding that an employee may withhold his consent to a plan promulgated in accordance with the FLSA and the regulations and yet continue working for that employer, then no rational employee would ever consent to such a plan without receiving something in exchange. This forced quid pro quo system would render these provisions of the FLSA meaningless, as no employer would be able to take advantage of these plans in their current form without incurring additional costs in the form of compensation in exchange for the employees’ agreement. This, I submit, simply is not the result contemplated by the FLSA.
Because I find no basis in the FLSA or the regulations for the proposition that the creation of such an affirmative right was intended, I believe that the City was free to restructure the firefighters’ schedules so that a normal tour of duty would not generate overtime hours. A municipality in no way acts improperly when it merely chooses to exercise its legal rights. This being the case, the contract doctrine of duress simply has no application here. See Troutman v. Facetglas, Inc., 281 S.C. 598, 316 S.E.2d 424, 427 (Ct.App.1984) (to establish defense of economic duress victim must have been subjected to unlawful act or threat); 13 Williston on Contracts §§ 1602, 1606 (3d ed.1970) (no duress where pressure exerted is not wrongful or unlawful).
I would thus vacate the judgment of the district court and remand for further proceedings.
I am authorized to say that Circuit Judge NIEMEYER joins in this dissent.
. The agreement requirement for meal time is incorporated into 29 C.F.R. § 553.223 by reference to 29 C.F.R. § 785.229(a).
. In addition to the § 7(k) plan that the City of Columbia implemented, the FLSA and the regulations contain at least three other wage plans that speak of "agreement” between employer and employee. See FLSA § 7(g) (allowing payment at “piece rates”); § 7(j) (special scheduling plan for hospital workers); 29 C.F.R. § 778.114 (special fixed salary plan for employees whose work time fluctuates from week to week).