The opinion of the court was delivered by: FLANNERY
THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE
Plaintiffs, eleven supervisory housing inspectors in the District of Columbia's Department of Consumer and Regulatory Affairs, have moved for partial summary judgment on the issue of eligibility for overtime compensation under the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. § 201 (1982). Plaintiffs here claim that a District leave policy that subjects their salaries, in certain circumstances, to deductions for absences of less than one day effectively entitles them to overtime compensation under the FLSA and its underlying regulations.
The District of Columbia ("the District") claims that these supervisory housing inspectors are outside the coverage of the FLSA under the Act's exemption for employees in "bona fide executive, administrative, or professional" capacities. 29 U.S.C. § 213(a)(1) (1982). Although conceding that its leave policy may "technically" violate the eligibility requirements defined by the Secretary of Labor for this exemption, the District argues that because no supervisory inspector's salary has ever been reduced under this leave policy the question of the exemption, absent a full consideration of plaintiffs' job duties, should remain open. For the reasons expressed below, the court agrees with the District's contention and therefore denies plaintiffs' motion for partial summary judgment.
Plaintiffs filed this action on October 11, 1988, seeking an order declaring that they were entitled to overtime compensation under the FLSA and an award of backpay for all overtime since the FLSA was made applicable to the District. After consultation with counsel at a status call on January 9, 1989, the court issued an order setting forth a briefing schedule for a summary judgment motion designed to determine if plaintiffs were entitled to overtime compensation under the FLSA.
Under the procedure outlined at the status call, the plaintiffs were initially to submit this motion for partial summary judgment on the question of whether these employees were "salaried" as defined in the regulations promulgated under the FLSA. The District concedes that if this court were to decide that plaintiffs were not "salaried" under the FLSA regulations, the plaintiffs would be covered by the FLSA and therefore entitled to overtime.
At this juncture in the case, no evidence of the plaintiffs' responsibilities or duties on the job is before the court.
The coverage of state and local government employees under the Act has had a brief but rich history. After finding that the extension of FLSA coverage to state and local government employees was unconstitutional in National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), the Supreme Court expressly overruled itself some nine years later in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985). Following this constitutional clarification, Congress passed legislation that effectively delayed the application of the FLSA's overtime provisions to states and localities until April 16, 1986. Fair Labor Standards Amendments of 1985, Pub. L. No. 99-150, 99 Stat. 787, 788-89.
In the regulations issued by the Secretary of Labor under the Act, the definition of a bona fide executive, administrative, or professional employee includes a requirement that the employee be compensated "on a salary basis."
The regulations provide the following definition of a "salary basis":
An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid in any workweek in which he performs no work.
29 C.F.R. § 541.118(a) (1987). Among the exceptions to this general policy, deductions are permitted for absences from work for more than a day for personal reasons
or in cases of sickness or disability if the deductions are made in accordance with a "bona fide plan policy or practice of providing compensation for loss of salary ...