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Zumerling v. Devine

July 31, 1985; As Amended.


Appealed from: U.S. District Court for the Western District of Pennsylvania.

Markey, Chief Judge, Rich, Circuit Judge, and Nichols, Senior Circuit Judge.


NICHOLS, Senior Circuit Judge.

This appeal presents for our review whether the Office of Personnel Management (OPM) has properly applied section 7(k) of the Fair Labor Standards Act (FSLA or Act), 29 U.S.C. § 207(k), as amended in 1974, in formulating its equation for the calculation of overtime payments for federal firefighters and law enforcement officers. Appellants (firefighters), over 4,500 current and former employees of the United States employed in fire protection and law enforcement activities, individually brought suit in the District Court for the Western District of Pennsylvania asserting various claims concerning their minimum wage and overtime compensation. On cross-motions for summary judgment, the court, Mansmann, J., premised its jurisdiction on 28 U.S.C. § 1346(a)(2) (the "Little Tucker Act") and held, in relevant part, that no violation of the overtime provision of the FLSA exists, but some claimants recovered under the minimum wage provisions of that Act. On the firefighters' appeal of the trial court's judgment on the overtime claims, we take jurisdiction under 28 U.S.C. § 1295, and affirm the district court's judgment.


The facts of this case are set forth in detail in the district court opinion, Zumerling v. Marsh, 591 F. Supp. 537 (W.D. Pa. 1984). While a complete repetition of these facts is not necessary to the resolution of the questions of law considered here, we recount the relevant statutory provisions and the overtime computation schemes set by OPM and requested by the firefighters.

A. Background

In contrast to the typical general schedule (GS) employee who is scheduled for a 40-hour workweek, the appellants typically work six 24-hour shifts, or 144 hours, in every 14-day work period. Also, unlike a typical employee who is on duty for all working hours, the firefighters are only on duty for 8 hours of each 24-hour shift; the remaining 16 hours are standby time where the firefighters may do as they please within the confines of the duty area. Congress has recognized that appellants' work schedules are different from those of typical government employees, and in Title V set forth the computation for a firefighters' pay in recognition of this difference. In accordance with 5 U.S.C. § 5545, on a weekly basis a firefighter receives basic pay, computed by dividing the yearly GS pay by 2,080 hours, and "premium pay" of up to 25 percent of the basic GS pay. This pay structure, doubled to compensate firefighters for their full 144-hour biweekly work period, is premised independently upon Title V and existed prior to the FLSA amendments mandating overtime compensation rates for federal firefighters.

In 1974 the FLSA was amended to include within its scope, among others, federal firefighters. Under section 7(a) of the FLSA, "except as otherwise provided in this section," employees receive overtime compensation for a workweek over 40 hours at a rate of one and one-half times their "regular rate." 29 U.S.C. § 207(a). (According to § 7(e) "regular rate" includes all remuneration except, inter alia, sums paid as gifts or rewards or payments made for occasional periods when no work is performed, i.e., sick leave, vacation time, and similar periods. 29 U.S.C. § 207(e).) Section 7(k), however, provides an exception to § 7(a) for those engaged in fire protection and law enforcement activities. The subsection provides in pertinent part:

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection [or law enforcement] activities * * * if --

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed [the] number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours * * * to 28 days,

compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Thus under § 7(k) a firefighter's "overtime" period is calculated based on tours of duty in excess of a statutorily defined maximum work period, rather than hours worked over a 40-hour workweek.

B. Computation of Overtime

Squarely at issue in this case is the method of determining the "regular rate" from which overtime wages are calculated. The parties agree as to the manner in which OPM calculates the regular rate, however, appellants assert this computation violates the statute and seek alternative methods more favorable to themselves. Both parties have been helpful by providing illustrations of the various computations. According to the illustrations in the affidavit of Dwight Brown, a Personnel Management Specialist at OPM, which are consistent with appellants' illustrations and which we will use throughout, the various computations are as follows:

1. OPM's method

OPM issued Federal Personnel Manual (FPM) Letter NO. 551-5 in 1975 instructing federal agencies on the application of the FLSA to employees such as appellants. Title V and the FLSA are applied separately, and each employee's pay reflects the greater of the amounts necessitated by the separate laws.

OPM calculates the FLSA regular rate as follows:

regular rate = total remuneration /tour of duty hours

For a GS-3, step 1, firefighter in 1978, the lowest salaried classification and pay level occurring, the regular rate is:

$409.60 (Basic Pay) $102.40 (Premium Pay)/144 hours (2-week tour of duty) = $3.56 regular rate

Overtime is mandated by FLSA § 7(k) for all hours over the 108 "average" prescribed in § 7(k). This amount is:

1/2 X hourly regular rate X number of hours

The multiplier of one-half the regular rate is a reflection of the fact the firefighters already get paid independently of FLSA for each hour of their 144 working hours. Thus the one-half pay in addition to the regular pay amounts to the one and one-half rate mandated by § 7(k). A GS-3, step 1 ...

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