Block
Block v. City of Los Angeles
Opinion
Lead Opinion
Hawkins, J.
The City of Los Angeles (the “City”) and the City’s Department of Water and Power (the “DWP”) (collectively, the “Defendants”) appeal from a grant of summary judgment to the plaintiff-employees on their Fair Labor Standards Act (“FLSA”) claim for overtime wages. The Defendants contend the employees are exempt from the overtime requirements of the FLSA because they are professional, executive or administrative employees who were at all times compensated on a salary basis. The employees do not dispute that their duties were executive, professional or administrative, but argue that they were not compensated in a manner consistent with a salary basis because they were subject to partial week suspensions for violations of rules unrelated to safety.
I. BACKGROUND REGULATIONS AND CASELAW
A. The Salary Basis Test
Under Wage and Hour Administration regulations, an employee is considered to be paid on a salary basis if his pay “is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118 (a). The salaried status of an employee, however, is not affected by “penalties imposed in good faith for infractions of safety rules of major…
Concurring Opinion
Kleinfeld, J.
I concur.
The reason that I write separately is that section III(B) is unnecessary to the opinion and should be deleted. In section III(C) and (D), we hold that the Menkus declaration is not competent evidence, and without it, the city failed to establish a genuine issue of fact. 1 As we say in section III(D), “Even if we ignore those six suspensions” of more than a week, the result is that we must affirm.
The majority acknowledges that: (1) “we have never explicitly addressed” the issue of greater than a week suspensions; 3 (2) some FLSA cases “have suggested that only even-week suspensions comply with the salary basis test,” 4 but some FLSA *423 cases “could create a negative implication that suspensions of a week or more are acceptable;” 5 (3) the City’s understanding regarding the suspensions was not unreasonable; 6 and (4) many people may have relied on the Secretary’s Auer Amicus Brief, which “constantly refers to suspensions of ‘less than a week’ as problematic.” 7 The question of whether suspensions of more than a week comply with the salary basis test is difficult, and we need not decide it in this case.