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February 25, 1992

JOHN J. HILBERT, JR., et al, Plaintiffs,

The opinion of the court was delivered by: STANLEY SPORKIN


 Plaintiffs in this action are captains and lieutenants in the Metropolitan Police Department. They brought suit seeking a declaratory judgment stating that they are entitled to overtime calculated under the criteria of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. They claim that the District of Columbia has violated the law by classifying them as "exempt" employees under the FLSA who are entitled to overtime at only the D.C. statutory rate and not the higher FLSA rate. They seek back pay from the time when the District of Columbia government was required to come into compliance with the FLSA (April 15, 1986) to the present. Four administrative staff members of the Metropolitan Police Department have been allowed to intervene as plaintiffs. *fn1" They have settled their claims with the District of Columbia.

 Plaintiffs have filed a motion for summary judgment. In a hearing held on December 11 and 12, 1991 and continued on February 7, 1992, the Court heard argument from the parties. As there is no genuine issue of material fact left in dispute, the case is appropriate for summary judgment.

 I. Police Overtime in the District of Columbia

 The only dispute raised in this action is the rate of overtime pay the plaintiffs will receive. The District government acknowledges that under D.C. Code § 4-1104, plaintiffs are entitled to overtime compensation. That statute codifies a law originally enacted by Congress in 1965. See Pub. L. 89-282, 79 Stat. 1013 (1965). When the District of Columbia gained home rule, the statute was carried over and has since been recodified as part of the D.C. Code. The statute defines "officers and members" to include all employees of the Metropolitan Police Department. D.C.Code § 4-1104(a)(9). It goes on to say this:

 (c) All officially ordered or approved hours of work . . . performed by officers and members in excess of the basic workweek in any administrative workweek, shall be considered as overtime work and shall be compensated for as provided by this section.

 Compensation is given as follows: all employees of the Metropolitan Police Department class 5 and above (lieutenants and higher ranks), get overtime compensation at their regular hourly rate when an authorizing official designates their assignment a special event. See D.C. Code § 4-1104(d)(1)(B). (Privates and sergeants get time and a half.) Overtime compensation is given in the form of compensatory time for assignments to other events, see D.C. Code § 4-1104(f)(1), and may be paid as compensation at the regular hourly rate if an application for compensatory time off is denied, see D.C. Code § 4-1104(f)(1)(B). All police officers, including the chief, get paid overtime under the statute.

 As the District stated in Department of Personnel Manual Instruction 11B-4, "The FLSA, as amended, does not repeal, amend, or otherwise modify any existing District pay laws, regulations or collective bargaining agreement." The Instruction goes on to say that "To the extent that the FLSA would provide a greater benefit to a nonexempt employee . . . than the benefit under other existing pay rules, the nonexempt employee is entitled to the FLSA benefit. . . . Exempt employees continue to be compensated for overtime work in accordance with existing policy." From these statements, it follows that the crucial legal question is whether or not the plaintiffs are exempt employees under the FLSA.


 The FLSA guarantees that employees are paid overtime at the rate of one and a half times their regular hourly pay. However, the statute identifies several categories of "exempt" employees to whom this and other requirements do not apply. The group of exempt personnel includes "any employee employed in a bona fide executive, administrative, or professional capacity . . . ." 29 U.S.C. § 213(a)(1).

 The Secretary of Labor has promulgated regulations that define two tests that are to be used to determine which employees are exempt as "bona fide executive, administrative or professional" personnel: the primary duties test, 29 C.F.R. 541.2(f), and the salary basis test, 29 C.F.R. 541.2(e). The primary duties test looks to the supervisory and executive nature of the employee's responsibilities. The salary basis test evaluates how the employee is compensated. An employee must pass both tests in order to be exempt from FLSA overtime requirements. See Abshire v. County of Kern, 908 F.2d 483 (9th Cir. 1990); D'Camera v. District of Columbia, 693 F. Supp. 1208 (D.D.C. 1988).

 When the FLSA was originally enacted, there was a dispute as to whether the law applied to employees of state and local governments. In 1985 the Supreme Court decided Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016 , 105 S. Ct. 1005 (1985), and made clear that the FLSA does apply to public employees. Congress quickly enacted legislation setting April 15, 1986 as the date when state and local governments had to be in compliance with the FLSA. The District of Columbia issued District Personnel Manual Instruction 11B-4 setting forth how the District planned to apply the FLSA to its employees. The District designated all police service ...

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