Wendi Berndt v. City of Los Angeles

MEMORANDUM

The plaintiffs (“Berndt” or “the Officers”) appeal the district court’s grant of summary judgment to the City of Los Angeles dismissing Berndt’s claims that the City violated the Fair Labor Standards Act (FLSA). We affirm.

1. The FLSA, as interpreted by Department of Labor (DOL) regulations, permits the City’s practice of compensating its employees’ “gap time” with compensatory time off (CTO).

The regulations expressly classify CTO “earned and accrued by an employee for employment in excess of a nonstatutory (that is, non-FLSA) requirement” as “other” CTO not subject to the statutory overtime rate. 29 C.F.R. § 553.28 . “For example, a collective bargaining agreement may provide that compensatory time be granted to employees for hours worked in excess of 8 in a day....” § 553.28(a) The City’s use of CTO to compensate “gap time” is specifically provided for by the collective bargaining agreement under which the Officers are employed. Their challenge to the City’s use of CTO for gap time therefore fails.

2. The City has established that there is no genuine issue of material fact for trial by showing that the Officers have failed to present competent evidence of a fact…