Appealed from: U.S. District Court for the District of Colorado.
Nies, Circuit Judge, Cowen, Senior Circuit Judge, and Bissell, Circuit Judge.
COWEN, Senior Circuit Judge.
Appellants (defendants) appeal from a judgment of the United States District Court for the District of Colorado, awarding appellees (plaintiffs) overtime pay for all hours worked in excess of 40 hours during their tours of duty, which spanned periods of 7 consecutive days. We reverse.
Plaintiffs are security guards at the Army's Rocky Mountain Arsenal in Colorado. To reduce costs following a reduction in force, their supervisors assigned them to new 28-day cyclical work schedules, which took effect in June 1977. Under these schedules, each employee worked a daily shift of 8 hours*fn1 for 7 consecutive days, followed by 2 days off. The second 7-day tour was also followed by 2 days off. The third 7-day tour was followed by 3 days off.
Previosly, the Army had established by regulation an "administrative workweek" for guards at the arsenal which corresponded to the calendar week, running from 12:01 a.m. Sunday until midnight the following Saturday. The so-called "7-2, 7-2, 7-3" schedules were structured so that each guard would work 5 days in 3 of every 4 administrative workweeks and 6 days in the fourth administrative workweek.*fn2 By so structuring the guards' schedules, the agency considered itself obligated to pay each employee one day of overtime per 28-day cycle, plus overtime for all hours worked in excess of 8 hours per day. The agency also paid the guards at the rate of time and one-quarter for Sundays worked, none of which fell in the administrative workweek in which they worked 6 days.
Plaintiffs instituted the present action in the district court, claiming that the Army's work schedule violated section 7(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1), and 5 U.S.C. § 5542(a), part of the Federal Employees Pay Act (FEPA). These statutes provide that employees are to be compensated for all hours worked in excess of 40 hours in an administrative workweek at one and one-half times their regular hourly rate.*fn3
The district court held that the government's work schedule was in violation of both FEPA and the FLSA. The primary ground for this holding was that the 7-2, 7-2, 7-3 schedule violates a regulation promulgated under FEPA, 5 C.F.R. 610.111(a)(1), which reads in pertinent part as follows:
The head of each agency * * * shall establish by regulation * * * [a] basic workweek of 40 hours which does not extend over more than 6 of any 7 consecutive days.
The district court also cited 5 C.F.R. § 610.111(b), which read, at times pertinent to this litigation, as follows:
(b) When it is impracticable to prescribe a regular schedule of definite hours of duty for each workday of a regularly scheduled administrative workweek, the head of an agency may establish the first 40 hours of duty performed within a period of not more than 6 days of the administrative workweek as the basic workweek, and additional hours of officially ordered or approved duty within the administrative workweek are overtime work.
[Emphasis added by district court.]
According to the district court, the Army's work schedule violated this provision, because it required arsenal guards to work 7 consecutive days. The district court found that because the guards' actual 7-day tours of duty constituted 56 hours of work, plaintiffs are entitled to overtime for all hours worked in excess of 40 hours for each of those periods, pursuant to FEPA, the FLSA, and 5 C.F.R. § 610.111(b). The district court also held that under FEPA and the FLSA, plaintiffs were entitled ...