Michael T. McGuire James P. Klum, Grant M. Coffey, Patrick A. Dooney, Jerry L. Ivie v. City of Portland, Oregon

91 F.3d 1293 132 Lab.Cas. P 33,428 , 3 Wage & Hour Cas.2d (BNA) 707, 96 Cal. Daily Op. Serv. 5741 , 96 Daily Journal D.A.R. 9401 Michael T. McGUIRE, James P. Klum, Grant M. Coffey, Patrick A. Dooney, Jerry L. Ivie, et al., Plaintiffs-Appellees, v. CITY OF PORTLAND, OREGON, Defendant-Appellant. No. 95-35391. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 9, 1996. Decided Aug. 2, 1996. Terence L. Thatcher, Office of City Attorney, Portland, Oregon, for defendant-appellant. Kathryn T. Whalen, Bennett & Hartman, Portland, Oregon, for plaintiffs-appellees. Charles C. Jackson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for amicus National Public Employer Labor Relations Association/Oregon Public Employer Labor Relations Association. Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding. D.C. No. CV-04-00360-REJ. Before: GOODWIN, SKOPIL, and SCHROEDER, Circuit Judges. Opinion by Judge GOODWIN; Concurrence by Judge SKOPIL. GOODWIN, Circuit Judge: 1 Plaintiffs, current or former battalion chiefs for the Portland Fire Bureau, sued the city for overtime pay under the Fair Labor…

Opinion by Judge GOODWIN; Concurrence by Judge SKOPIL.

Plaintiffs, current or former battalion chiefs for the Portland Fire Bureau, sued the *1294 city for overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-209 . The city defended on the theory that plaintiffs were not entitled to overtime pay because they were salaried workers and fell within the FLSA’s overtime exemption for executive and administrative employees. 29 U.S.C. § 213 (a)(1). The district court granted partial summary judgment for plaintiffs. We affirm.

I. Statutory Scheme

FLSA overtime requirements do not apply to “any employee employed in a bona fide executive, administrative, or professional ca-pacity_” 29 U.S.C. § 213 (a)(1). The only issue in this appeal is whether one or more of the plaintiffs “is compensated for his services on a salary basis.” 29 C.F.R. §§ 541.1 (f) & 541.2(e).

An employee is paid on a salary basis if he or she receives a predetermined amount each paycheck, which is not subject to reduction due to variations in the quality or quantity of work performed, and the employee is paid a full week’s salary for any week in which he or she performed any work. 29 C.F.R. §…

concurring:

I concur in our holding that the city has failed to carry its burden of showing that these plaintiffs are compensated for then-services on a salary basis. That result is clearly compelled by our prior decisions. Moreover, I agree that the policy considerations underlying the public accountability doctrine do not have sufficient force when applied to the disciplinary regulations to require us to override the agency’s interpretation and invalidate the regulations. See Balgowan v. New Jersey DOT, 84 F.3d 656, 661 (3d Cir.1996) (upholding amended regulations); Mueller v. Reich, 54 F.3d 438, 443 (7th Cir.1995) (same).

I write separately, however, to express my concern with the development of the law of this circuit. Writing on a clean slate, I would accept the city’s position emanating from the uneontroverted facts that the city intended these plaintiffs to be salaried employees, that no one in plaintiffs’ classification has ever been disciplined, and that the city does not intend ever to impose discipline upon these individuals in a fashion that would jeopardize their salaried status and expose the city to overtime liability. Several other circuits have considered such…