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Berry v. County of Sonoma

filed: July 26, 1994.

GREGORY BERRY; FORREST FASIG; PHILLIP MARCUS; DENNIS MCALLISTER; FRANCIS ORAVETZ; AND N. TOM SIEBE, PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,
v.
COUNTY OF SONOMA; SONOMA COUNTY SHERIFF'S DEPARTMENT; SONOMA COUNTY BOARD OF SUPERVISORS; JANET NICHOLAS; JAMES HARBERSON; TIM SMITH; NICK ESPOSITO; ERNEST CARPENTER; AND RICHARD MICHAELSON, DEFENDANTS-APPELLANTS CROSS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-89-04476-SAW. Stanley A. Weigel, District Judge, Presiding.

Before: John T. Noonan, Jr., Thomas G. Nelson, Circuit Judges, and David A. Ezra,*fn* District Judge. Opinion by Judge T.g. Nelson.

Author: Nelson

T.G. NELSON, Circuit Judge:

OVERVIEW

Gregory Berry (Berry), Phillip Marcus (Marcus), Dennis McAllister (McAllister), and Francis Oravetz (Oravetz), current and former deputy coroners (collectively referred to as "the coroners") brought this action against their employer, the Sonoma County Sheriff's Department, the County of Sonoma and the Sonoma Board of Supervisors (collectively referred to as "Sonoma County"), seeking overtime compensation for time spent waiting on-call from December 1986 until the present pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq. The district court held that Sonoma County had violated the FLSA by failing to compensate the coroners for on-call waiting time and awarded them damages and attorneys' fees pursuant to 29 U.S.C. § 216(b). However, the district court limited its award by holding that Sonoma County's FLSA violation was in good faith, based on a reasonable belief of compliance, and was not willful. As a result, the coroners were not entitled to liquidated damages, see 29 U.S.C. § 260, and the statute of limitations was two years, instead of three years, see 29 U.S.C. § 255(a).*fn1 Sonoma County appeals the judgment for the coroners. The coroners cross-appeal the district court's holding that Sonoma County did not willfully or in bad faith violate the FLSA and request attorneys' fees. We reverse the district court's judgment in favor of the coroners.

FACTS AND PROCEDURAL HISTORY

The coroners are required by California state law to respond to certain reported deaths twenty-four hours a day, seven days a week, including holidays. See Cal. Gov't Code §§ 27491 et seq. ; Cal. Health & Safety Code §§ 10250 et seq. The Coroner's Office has regular business hours Monday through Friday from 8 a.m. to 5 p.m. However, because the coroners have a statutory obligation to be available at all times, one coroner is always "on-call" when no coroner is "on-duty."

The investigations a coroner conducts while on-call are very similar to those which he conducts while on-duty. Death reports are immediately reported to the on-call coroner regardless of the time received. To maintain communication, Sonoma County provides coroners with a telephone, pager, two-way radio and county van. The parties agree that the coroners respond as soon as possible to death reports and are required to answer a page or telephone call within fifteen minutes.*fn2 When a death report is received, if the coroner determines it is a coroner's case, he either conducts an investigation by telephone or visits the scene of the death depending on the nature of the case.

Two factors distinguish on-call duties from regular duties. First, while on-call, a coroner is not required to respond to reports of nursing home deaths but may postpone such an investigation until his next regular on-duty shift. Second, when a coroner is on-call, he is not required to be at the Coroner's Office. Instead, he may conduct his investigations from his home or other locations outside the office but within Sonoma County.

Because of the requirement that coroners be immediately available to investigate death reports while on-call, the coroners claim their personal activities while waiting on-call for a death report are restricted. They claim they are not able to leave Sonoma County to engage in hobbies or activities such as camping, hunting, fishing, socializing and attending sporting events. Further, they remain in areas which are accessible by pager. They do not engage in activities where interruptions would be unwanted such as attending movies, dining out, shopping or working on labor-intensive tasks. They remain prepared to meet the public by not engaging in activities in which they would become dirty and by not consuming alcohol in amounts which would affect their sobriety. Finally, when they do travel, they are forced to take a separate vehicle because citizens may not ride in the county van.*fn3

Despite the restrictions on their personal activities created by geographical, communication and transportation limitations, the record reflects activities in which the coroners have been able to participate while on-call. Coroners have been able to socialize with friends, dine out, shop, read, watch television and enjoy hobbies such as gardening, working on antique cars, leather crafts and photography. Berry taught a course at a local junior college and held the position of Battalion Chief of the local volunteer fire department.

Prior to 1982, coroners received five percent of their hourly pay for each hour on-call. However, in 1982 a new agreement was reached, the relevant provisions of which have been incorporated into successive Memorandums of Understanding (MOUs) resulting from collective bargaining between Sonoma County and the Sheriff's Office Employee Association (Association). Pursuant to the 1982 agreement, coroners received a five percent increase in their base salaries. No overtime compensation is paid for time spent waiting on-call and not actually working. However, for each death report investigated while on-call, the coroner receives guaranteed minimum overtime pay, regardless of the time it takes to investigate the death report, calculated at a rate of one and one-half times the regular hourly rate. Initially, the coroners received a two-hour guaranteed minimum for each death report investigated while on-call. Later, the hourly minimum was reduced for telephone cases. Now, for each telephone case investigated, a coroner receives a minimum of one hour paid overtime. For each call-back case investigated, a coroner receives a minimum of two hours paid overtime.

During collective bargaining sessions in 1986, 1988 and 1990, the Association requested overtime pay for all hours during which a coroner was on-call. These requests were rejected. The only other evidence that the coroners were dissatisfied with the working conditions as a result of on-call duty was an Employee Hazard Report filed in July 1988 by Berry, Marcus and another deputy coroner not a party to this suit. According to the report, because the coroners were required to work twenty-four hours per day for four days consecutively, they were receiving insufficient sleep and rest periods away from active duty. The coroners requested an increase in staff to reduce the work load thereby relieving them of the four day consecutive work shift.

The coroners brought this action pursuant to the FLSA against Sonoma County seeking overtime compensation for on-call waiting time, i.e., the time on-call which coroners were required to be prepared to investigate death reports but were not actually working, from December 1986 until the present. The district court denied the parties' cross-motions for summary judgment,*fn4 finding disputed facts regarding whether the coroners were able to conduct personal activities during on-call shifts and whether Sonoma County violated the FLSA willfully or in bad faith. It also found material issues of fact relating to the amount of damages.

After a five day trial, the district court held that Sonoma County had violated the FLSA by failing to compensate the coroners for on-call waiting time and awarded them damages and attorneys' fees pursuant to 29 U.S.C. § 216(b). However, the district court limited its award by holding that Sonoma County's FLSA violation was in good faith, based on a reasonable belief of compliance, and not willful. As a result, the coroners were not entitled to liquidated damages, see 29 U.S.C. § 260, and the statute of limitations was two years, opposed to three years, see 29 U.S.C. § 255(a). Sonoma County appeals the judgment for the coroners. The coroners cross-appeal the district court's holding that Sonoma County did not willfully or in bad faith violate the FLSA and request attorneys' fees on appeal.

Discussion

I. On-Call Time as Compensable Overtime

In general, the FLSA requires that employers pay overtime compensation to employees for hours worked in excess of forty hours per work week. 29 U.S.C. § 207(a). We recently addressed the issue of whether on-call waiting time, i.e., time spent on-call but not actually working, is compensable overtime under the FLSA in Owens v. Local No. 169, Ass'n of W. Pulp and Paper Workers, 971 F.2d 347, 350 (9th Cir. 1992), where mechanics at a pulp mill sought overtime pay for on-call waiting time. We held that the two predominant factors in determining whether an employee's on-call waiting time is compensable overtime are "(1) the degree to which the employee is free to engage in personal activities; and (2) the agreements between the parties." Id. (footnotes omitted). Finding express, constructive and collective bargaining agreements between the parties and that mill mechanics were free to engage in their own personal activities, we reversed the district court's summary judgment holding that on-call waiting time was compensable work. Owens controls our decision in this case.

A. Standard of Review

We review the district court's findings of fact for clear error and its interpretations of the FLSA de novo. Drollinger v. State of Arizona, 962 F.2d 956, 958 (9th Cir. 1992). Whether and to what extent employees are able to use on-call time for personal activities is a question of fact. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 89 L. Ed. 2d 739, 106 S. Ct. 1527 (1986); Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807-08 (11th Cir. 1992). However, whether the limitations on the employees' personal activities while on-call are such that on-call waiting time would be considered compensable overtime under the FLSA is a question of law which we review de novo. See Birdwell at 807 ("Whether a certain set of facts and circumstances constitute work for purposes of the FLSA is a question of law."); cf. Icicle Seafoods, 475 U.S. at 714. Whether there was an agreement between the employer and the employees that employees would receive compensation only for ...


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