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September 19, 1989

CHARLES R. WILKS, JR., ET AL., Plaintiffs,

Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL


 The complaint seeks overtime pay for various categories of employees of the District of Columbia. Plaintiffs allege that the District has failed to pay overtime and calculate compensation time as required by the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). The issue has been resolved for some employee categories, while other categories remain in dispute. The cross motions before the Court seek to determine the status of two categories of employees who work at the Department of Corrections.

 Section 13(a)(1) of the FLSA, 29 U.S.C. § 213(a)(1), provides that overtime provisions are inapplicable to "any employee employed in a bona fide executive, administrative, or professional capacity. . . ." In determining whether this exemption applies to a particular employee or employees, a court must fashion an interpretation of the FLSA that comports with the congressional purpose, see NLRB v. Lion Oil Co., 352 U.S. 282, 297, 1 L. Ed. 2d 331, 77 S. Ct. 330 (Frankfurter, J., concurring in part and dissenting in part), guided primarily by the general regulations, the overall direction taken in individual rulings, and the specific facts in the case. The employer bears the burden of showing that its employees are exempt from FLSA coverage. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 41 L. Ed. 2d 1, 94 S. Ct. 2223 (1974).

 The two issues presented by the cross-motions are: 1) whether a Department of Corrections "foreman," who supervises only prisoners and not other Department of Corrections workers, is an "executive" under the FLSA; and 2) whether a Department of Corrections "teacher" is a "professional" under the FLSA. The Court concludes that a Department of Corrections "foreman" is not an FLSA "executive" but that a Department of Corrections "teacher" is an FLSA "professional."


 Regulations at 29 CFR § 541.1 define in relevant part an "executive" for purposes of section 13(a)(1) as any employee (1) "whose primary duty" is the management of an enterprise or department thereof; (2) who regularly supervises two or more "employees"; (3) who has authority for or significant influence in hiring and firing decisions; and (4) who is paid on a "salary basis."

 The relevant facts as to the tasks performed by D.C. corrections department foremen are not in dispute. The foremen perform a variety of jobs. They install and repair telephone equipment, structural metals, security encasements, electrical systems, and plumbing fixtures and supervise inmates to do the same. They maintain and restore interior and exterior painting at Lorton and supervise inmates to do the same. They operate and supervise inmates in the sheet metal shop and the boiler plant. The foremen, however, supervise only prisoners, not District of Columbia employees.

 Section 541.105 of 29 CFR states, "An employee will qualify as an 'executive' under § 541.1 only if he customarily and regularly supervises at least two full-time employees or the equivalent." The examples provided in the provision indicate that the word "equivalent" pertains to the amount of time an employee works, e.g., two part-time employees are equivalent to one full-time employee, and not to the status of the worker.

 Plaintiffs cite cases finding that inmates supervised by penal institution employees are not FLSA "employees" and therefore are not entitled to the coverage of the FLSA minimum wage. See Young v. Cutter Biological, 694 F. Supp. 651, 656-57 (D.Ariz. 1988); Wentworth v. Solem, 548 F.2d 773, 775 (8th Cir. 1977). The Court finds the reasoning of these cases persuasive. In cases in which inmates employed by outside employers sought minimum wage coverage, the courts have employed the "economic reality" test generally applied in FLSA cases. That test considers the extent to which typical employer prerogatives, such as authority to hire and fire, control work schedules and conditions, determine the rate of payment, and maintain employee records, are exercised over the inmate by the outside employer. See Carter v. Dutchess Community College, 735 F.2d 8, 13-14 (2d Cir. 1984). Most such cases have found that inmates were not FLSA "employees." See e.g., Alexander v. Sara, Inc., 559 F. Supp. 42 (M.D.La. 1983), aff'd, 721 F.2d 149, 150 (5th Cir. 1983); Sims v. Parke Davis Co., 334 F. Supp. 774 (E.D.Mich. 1971), aff'd, 453 F.2d 1259 (6th Cir. 1971), cert. denied, 405 U.S. 978, 31 L. Ed. 2d 254, 92 S. Ct. 1196 (1972). *fn1" Where the reviewing court found that the outside employer did not have the typical employer prerogatives, the FLSA was held inapplicable because inmate labor belongs to the penal institution and inmates do not lose their primary status as inmates just because they perform work. Young v. Cutter Biological, 694 F. Supp. at 657. It follows that the economic reality test is inapplicable to an inmate employed by the penal institution and supervised by its employees. Id.

 Moreover, the foremen do not receive a "salary" within the meaning of the applicable C.F.R. provisions, another circumstance that deprives them of executive status. In D'Camera v. District of Columbia, 693 F. Supp. 1208, 1212-13 (D.D.C. 1988), the court examined the compensation rules for District of Columbia police sergeants and found that it was fatal to D.C.'s argument that the sergeants were FLSA "administrative" employees, because the regulations require that "administrative" employees, like "executive" employees, be paid on a "salary basis." The requirements for determining whether payment is on a "salary basis" are the same for "executive" and "administrative" employees. See 29 C.F.R. § 541.212. The regulations, at 29 C.F.R. § 541.118 provide that a salaried 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" but that deductions may be made for absences of a day or more for sickness or disability reasons, if the employee is covered by a disability plan, or for personal reasons. As D'Camera stated, deductions in pay for absences from work shorter than a full day are inconsistent with the FLSA's definition of an employee paid on a "salary basis." 693 F. Supp. at 1212. The police sergeants in D'Camera, under certain circumstances, had their pay docked for absences on an hourly basis. Similarly here, plaintiffs assert and defendants do not dispute that corrections department foremen, under the District Personnel Manual, have their pay docked for any hour in which they are absent without permission. *fn2" Therefore, foremen are not paid on "salary basis" as defined in the regulations, do not supervise other "employees," and thus are not FLSA "executive" employees.


 The FLSA at 29 U.S.C. § 213(a)(1) exempts from FLSA coverage "any employee employed in a bona fide . . . professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools). . . ." The regulations at 29 C.F.R. § 541.3 include in ...

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