1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID BARNETT, et al., Case No. 18-cv-01383-JD
8 Plaintiffs, FINDINGS OF FACT AND 9 v. CONCLUSIONS OF LAW
10 CITY OF SAN JOSE, Defendant. 11
12 13 Plaintiffs are firefighters employed by defendant City of San Jose (City). They sued the 14 City for unpaid overtime they allege the City owes them under the Fair Labor Standards Act 15 (FLSA), Pub. L. No. 75-718, 52 Stat. 1060 (1938) (codified as amended at 29 U.S.C. §§ 201 et 16 seq.). See generally Dkt. No. 46 (SAC). In a nutshell, the FLSA establishes, among other things, 17 a minimum amount that firefighters must be compensated for overtime work. The City pays the 18 firefighters pursuant to a collective bargaining agreement. To ensure compliance with the FLSA, 19 the City compares at the end of each relevant period the amount paid under the agreement to the 20 amount it is obligated to pay under the statute. If the amount paid per the agreement is below the 21 amount due under the FLSA, the City pays the firefighter the difference; if the amount per the 22 agreement is greater, the City takes no further action. Plaintiffs say the City’s approach 23 shortchanged them and paid less than the FLSA required. 24 Although this may sound relatively simple, the case has been beset by tortuous (and on 25 occasion torturous) immersions into overtime pay calculations, spreadsheets, endless numerical 26 tables, and the like. At multiple times in the litigation, even the lawyers for the parties seemed 27 flummoxed by the math and unable to explain in plain and simple terms what the actual 1 be attributable to the fact that, as many courts have noted, determining FLSA pay rates can be a 2 perplexing exercise. 3 After unsuccessful attempts at resolving the dispute in motion hearings, the Court 4 concluded that a bench trial with witnesses and evidence was warranted. Dkt. Nos. 107, 127. 5 Unfortunately, the parties chose to treat the bench trial as another motion hearing and did not 6 proffer a single witness who might have brough clarity to the case. Dkt. No. 136. The trial 7 consisted of attorney argument and admission of the parties’ stipulations of fact and documents 8 into the record, most of which were again comprised of masses of numbers without explanatory 9 context. See Dkt. Nos. 136, 140. 10 The Court advised the parties that the bench trial decision would be based solely on the 11 evidence admitted at trial. Dkt. No. 137. The ensuing findings of fact and conclusions of law are 12 based on the trial evidence, the parties’ trial briefs, and post-trial submissions. See Dkt. Nos. 83, 13 90, 101, 115-16, 136, 140, 144-45. 14 An almost-identical lawsuit was previously brought in this district by different San Jose 15 firefighters against the City. These plaintiffs were part of that case until it was decertified, at 16 which point they decided to proceed separately. Dkt. No. 46 ¶ 9. In that case, Wallace v. City of 17 San Jose, summary judgment was entered for the City, and the Ninth Circuit affirmed. Here, the 18 City did not pursue issue preclusion in any form. The result here is different. Plaintiffs have met 19 their burden of establishing that the City underpaid them during certain work periods and so 20 violated the FLSA. 21 FINDINGS OF FACT 22 I. THE CITY’S METHOD OF PAYING ITS FIREFIGHTERS 23 1. The Memorandum of Agreement (MOA) (i.e., the collective bargaining agreement) 24 between the City and the firefighters’ union memorializes the terms and conditions of firefighter 25 employment, including compensation, for fiscal years July 1, 2014, and June 30, 2018. Dkt. 26 No. 136, Stipulation of Undisputed Facts (SUF) No. 1; Dkt No. 140-11 (Trial Exh. 857) (MOA). 27 1 2. Under the MOA, firefighters who are assigned to 24-hour work shifts (which 2 includes most of the plaintiffs here) are required to work at least an average of 56 scheduled hours 3 per week. SUF No. 2; MOA § 14.3. 4 3. The firefighters are paid biweekly, meaning every two weeks (the pay period or 5 MOA pay period). SUF No. 3. There are various firefighter classifications, and the “MOA sets a 6 ‘salary schedule’ providing for biweekly salary payments” for each firefighter classification based 7 on 112 hours of work. SUF Nos. 5, 6; MOA § 30.1 & Exhibit I thereto. 8 4. Plaintiffs are salaried employees for purposes of the FLSA. The City pays 9 plaintiffs their set salaries “regardless of the number of [scheduled] hours employees actually 10 work,” an arrangement negotiated by the union and City to “accommodate the firefighters’ request 11 for consistency and predictability in their pay checks.” SUF No. 5. The payment schedule jointly 12 submitted into evidence with the MOA (MOA Exhibit I) is entitled “2014-2018 IAFF Salary 13 Schedule.” MOA Exhibit I. Plaintiffs’ paystubs indicate that their biweekly “pay rate” is pegged 14 to an unchanging 112 hour “Quantity” instead of a variable number of “Hours.” Dkt. Nos. 140-3 15 at ECF 2-3 (Trial Exh. 142); 140-4 at ECF 2-3 (Trial Exh. 143). 16 5. In addition to the amounts identified in the salary schedule, the City also pays 17 firefighters “premium” or “add-on” payments. SUF No. 10. The add-on payments are additional 18 rewards or incentives for firefighters with certain skills, for example emergency medical training 19 or language skills. See generally MOA § 5. Although disbursed as lump-sum payments at the end 20 of each pay period, a number of these add-on payments are essentially salary enhancements. 21 6. The MOA also provides for premium pay for overtime hours, which will be 22 denoted here as “contractual overtime.” Firefighters assigned to a 56-hour-per-week schedule 23 who work more than 24 hours at a time earn 1.5 times (1.5x) their “base hourly rate” for the extra 24 hours worked. MOA § 14.5; SUF NO. 7. 25 7. The base hourly rate is based solely on the amounts set forth in the salary schedule, 26 and so is exclusive of any add-on payments. The base hourly rate may be calculated by two 27 mathematically equivalent ways: (1) dividing the firefighter’s biweekly salary by the set number 1 of 112; or (2) doubling the firefighter’s biweekly salary and dividing that by the set number of 2 224. SUF No. 5; MOA Exhibit I. 3 8. Plaintiffs are eligible for contractual overtime for working extra unscheduled hours, 4 which are hours “they work outside their regularly[ ]scheduled work shifts.” SUF No. 14. 5 9. Consequently, contractual overtime is due even if the firefighter worked less than 6 112 scheduled hours in a two-week MOA pay period. SUF No. 14. This can happen when a 7 firefighter takes vacation or sick time at one point in the pay period (and so works less than 112 8 scheduled hours) but ends up working extra non-scheduled hours at another point in the pay 9 period. MOA § 14.9; SUF Nos. 8, 14. 10 10. The FLSA guarantees premium pay to plaintiffs when they work more than 24 11 hours at a time or more than 212 hours in a 28-day work period (FLSA work period or work 12 period). For clarity, the Court refers to this overtime pay under the statute as “FLSA overtime.” 13 FLSA overtime differs from contractual overtime in two relevant respects: (1) FLSA overtime 14 only kicks in when the number of hours actually worked exceeds 212 hours in a given work period 15 (without considering vacation or sick time); (2) FLSA overtime is paid at a higher rate than 16 contractual overtime because it includes both the biweekly salary and certain add-on payments (to 17 be discussed in greater detail later). SUF No. 10. Put more plainly, contractual overtime is paid 18 more often but at a lower rate than FLSA overtime. 19 11. The City recognizes that FLSA overtime differs from contractual overtime. It uses 20 a software program called PeopleSoft to check its compliance with the statute. Dkt. No. 140-1 21 (Trial Exh. 104) at Interrogatory Response No. 1. 22 12. At the end of each 28-day FLSA work period, which is comprised of two MOA pay 23 periods, PeopleSoft calculates the amount owed to a firefighter for the two pay periods under the 24 MOA. If the firefighter did not work over 212 hours in the 28-day work period, the program 25 makes no further calculations and adjustments. Trial Exh. 104 at Interrogatory Response No. 1. 26 The plaintiffs have no problem with this practice. 27 1 13. If the firefighter worked over 212 hours in the work period, the program determines 2 “the number of FLSA overtime hours the employee worked in the 28-day work period and the 3 amount of overtime due” under the FLSA. Trial Exh. 104 at Interrogatory Response No. 1. 4 14. The City calculates FLSA overtime by ascertaining the “FLSA regular rate,” which 5 is different from the above-mentioned base hourly rate. SUF No. 16; Trial Exh. 104 at 6 Interrogatory Response No. 1. 7 15. The City’s practice during the relevant time periods was to calculate the FLSA 8 regular rate by “dividing the amount paid for [add-on payments] by a fixed divisor of 224 and 9 adding that to the employee’s [base hourly rate].” Trial Exh. 104 at Interrogatory Response No. 1. 10 The fixed divisor of 224 in that formula represents the total number of scheduled hours in a 28-day 11 work period (i.e., a firefighter’s weekly 56 scheduled hours multiplied by four). The City would 12 multiply the resultant rate by the number of hours worked over the statutory overtime threshold to 13 determine how much it believed a firefighter was due under the FLSA. 14 16. “The result of that calculation is [then] compared to the amount paid to the 15 employee under the MOA. If the amount the City has paid pursuant to the MOA is less than the 16 FLSA amount calculated, then the City pays the difference through an ‘FLSA overtime 17 adjustment’ to the employee’s paycheck at the end of the 28-day work period.” SUF No. 19. 18 17. “The City’s position is that, in determining whether it has paid at least what is 19 required by the FLSA, it may consider all contractual overtime paid at 1.5x, regardless of whether 20 that overtime was paid for hours worked under 212 hours per work period or over 212 hours per 21 work period, and that was the City’s actual practice at all times relevant to this litigation.” SUF 22 No. 21. 23 18. The problem plaintiffs have with the City’s methodology arises only in a specific 24 circumstance: when a firefighter works less than 212 scheduled hours in a work period (because, 25 for example, she took vacation time) but ends up working a lot of extra non-scheduled hours that 26 push her total number of hours in the work period to over 212 hours. See Dkt. No. 138 (Trial 27 Transcript) at 43:13-45:8. 1 II. PLAINTIFF BARNETT 2 1. The parties offered plaintiff David R. Barnett’s 28-day work period from July 16 to 3 August 12, 2017, as a “bellwether” to show at trial how plaintiffs are paid and how the asserted 4 deficiencies in the City’s calculation method affects their pay. Dkt. No. 116 at 3 n.3; see Dkt. No. 5 140-6 (Trial Exh. 243); Trial Exh. 142. 6 2. Barnett’s biweekly salary was $6,259.20. Trial Exhs. 142, 243. 7 3. In the first pay period, Barnett worked 96 scheduled hours and 175.5 extra non- 8 scheduled hours, the latter of which were eligible for contractual overtime. He earned a full 9 $6,259.20 biweekly salary, $14,711.91 in contractual overtime, and $629.21 from four types of 10 add-on pay (Anti-Terrorism Training Pay, Education & Training Pay, Emergency Medical 11 Technician pay, and Holiday In-Lieu Pay). Barnett also received a $35 cell-phone stipend and a 12 $20.62 uniform allowance. Trial Exh. 142 at ECF 2. 13 4. In the second pay period, Barnett worked 96 scheduled hours and 41.5 extra non- 14 scheduled hours, and he took 24 hours of vacation time. He earned his full $6,259.20 biweekly 15 salary, $3,478.88 in contractual overtime, and $629.21 from the same four types of add-on pay. 16 Barnett also received a $20.62 uniform allowance. Trial Exh. 142 at ECF 3. 17 5. Barnett worked a total of 409 hours over the whole work period, of which 192 were 18 scheduled hours (exclusive of vacation time) and 217 were extra unscheduled hours. Twenty of 19 those extra unscheduled hours were eligible only for contractual overtime, because Barnett had not 20 yet worked 212 total hours in the work period. For those hours, Barnett was eligible to receive 21 1.5x his base hourly rate. 197 of those extra non-scheduled hours were eligible for FLSA 22 overtime because Barnett had exceeded the 212-hour threshold. For these hours, Barnett was 23 entitled to receive the higher FLSA overtime rate. Trial Exh. 142 at ECF 2-3. 24 6. Barnett did not receive an “FLSA overtime adjustment” for this 28-day work 25 period. Trial Exh. 243. Barnett grossed $31,967.61 during this work period. Dkt. Nos. 140-12 26 (Trial Exh. 859); 140-13 (Trial Exh. 860); SUF No. 11. 27 1 CONCLUSIONS OF LAW 2 I. STATUTORY FRAMEWORK 3 “One of the principal purposes of the FLSA is to ensure that employees are provided 4 appropriate compensation for all hours worked.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 5 901, 913 (9th Cir. 2004) (emphasis in original). To that end, the FLSA entitles these plaintiffs to 6 “compensation . . . at a rate not less than one and one-half times the regular rate at which [they 7 are] employed” for hours worked in excess of 212 hours per 28-day work period. 29 U.S.C. 8 §§ 207(a), (k). 9 For “employees engaged in fire protection activities who have a work period of at least 7 10 but less than 28 consecutive days, no overtime compensation is required . . . until the number of 11 hours worked” exceeds 212 hours. 29 C.F.R. § 553.230(a); see 29 U.S.C. § 207(k). “In other 12 words, [the City is] required to compensate [firefighters] for time in excess of [212 hours per 28- 13 day work period] with overtime compensation, which is paid at a rate of one and one-half times 14 the [firefighters’] regular rate of pay.” Smiley v. E.I. Dupont De Nemours & Co., 839 F.3d 325, 15 330 (3d Cir. 2016). In this way, the FLSA “guarantee[s] minimum overtime compensation” for 16 each hour of overtime worked. Siegmund v. Cnty. of Orange, 461 Fed. App’x 639, 641 (9th Cir. 17 2011) (unpublished) (citing Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 799 (9th Cir. 18 2010)). 19 It is well established that “[t]he first step in determining FLSA overtime liability is to 20 calculate the [FLSA] regular rate of pay.” Wallace v. City of San Jose, 799 Fed. App’x 477, 479- 21 80 (9th Cir. 2020) (unpublished) (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 22 U.S. 419, 424 (1945)). The FLSA provides that the regular rate “shall be deemed to include all 23 remuneration for employment paid to, or on behalf of, the employee” except for specifically 24 delineated exceptions. 29 U.S.C. § 207(e). The FLSA regular rate is “the hourly rate actually 25 paid the employee for the normal, non-overtime workweek for which he is employed.” Brunozzi 26 v. Cable Comms., Inc., 851 F.3d 990, 995-96 (9th Cir. 2017) (emphasis added) (quoting Walling, 27 325 U.S. at 419). The Supreme Court of the United States has made it clear that the FLSA regular 1 workweek . . . . It is not an arbitrary label chosen by the parties; it is an actual fact.” Bay Ridge 2 Operating Co. v. Aaron, 334 U.S. 446, 461 (1948). In other words, the FLSA regular rate “must 3 be discerned from what actually happens under the governing employment contract.” O’Brien v. 4 Town of Agawam, 350 F.3d 279, 294 (1st Cir. 2003). 5 With the FLSA regular rate in hand, the statute provides that employers must pay 6 employees in an amount equal to 1.5x the FLSA regular rate for each hour worked once the 7 employee works above and beyond the FLSA overtime threshold -- in this case, 212 hours in a 8 given 28-day work period. See 29 U.S.C. §§ 207(a), (k). The FLSA excludes various forms of 9 remuneration from inclusion in the FLSA regular rate calculation, see id. § 207(e), while also 10 providing that “sums excluded from the regular rate pursuant to subsection (e) shall not be 11 creditable toward . . . overtime compensation required under this section,” id. § 207(h)(1) 12 (emphasis added). The only exception to this bar is that “[e]xtra compensation paid as described 13 in paragraphs (5), (6), and (7) of subsection (e) shall be creditable toward overtime compensation 14 payable pursuant to this section.” Id. § 207(h)(2). In effect, the FLSA establishes a minimum of 15 overtime pay due to employees that must be paid independent of any additional remuneration for 16 which the parties bargain outside the limited categories of “[e]xtra compensation” described in 17 § 207(e)(5)-(7). 18 Consequently, “[i]f an employee’s actual pay exceeds what the FLSA would require, an 19 employer has no additional FLSA liability.” Wallace, 799 Fed. App’x at 479 (citing 29 U.S.C. 20 § 216(b)). But an employer may not claim that other monies owed to an employee compensate for 21 overtime hours because “employers [must] pay employees for all hours worked.” Smiley, 839 22 F.3d at 330. As our circuit court has aptly stated: “Crediting money already due to an employee 23 for some other reason against the wage he is owed is not paying that employee compensation to 24 which he is entitled by statue. It is, instead, false and deceptive ‘creative’ bookkeeping that, if 25 tolerated, would frustrate the goals and purposes of the FLSA.” Ballaris, 370 F.3d at 914. 26 “In a suit brought under the FLSA, the employee has the burden of proving that the 27 employee was not properly compensated for the work performed.” Imada v. City of Hercules, 138 1 II. THE PROPER DIVISOR FOR CALCULATING THE FLSA REGULAR RATE 2 Plaintiffs contend the City violated the FLSA because, in certain work periods, the City 3 over-credited the contractual overtime paid for extra unscheduled hours worked below the FLSA 4 overtime threshold. See, e.g., SAC ¶ 10; Dkt. No. 116 (Plaintiffs’ Supp. Tr. Br.) at 1. 5 The City’s practice for calculating its firefighters’ FLSA reasonable rate is to “divid[e] the 6 amount paid for [add-on payments] by a fixed divisor of 224 and add[] that to the employee’s base 7 [hourly] rate.” Trial Exh. 104 at Interrogatory Response No. 1. Throughout the litigation, the City 8 has maintained that practice of using 224 as a set divisor is an act of grace “more favorable to 9 employees” because the FLSA only requires dividing the add-on payments by the hours actually 10 worked and adding that to the employee’s base hourly rate. See, e.g., Dkt. No. 101 (City’s Tr. Br. 11 re Legal Issues) at 8-10. If the firefighters were paid a sum pursuant to the MOA for overtime 12 labor that was greater than that which the FLSA required, there is no statutory violation. See 13 Wallace, 799 Fed. App’x at 479 (citing 29 U.S.C. § 216(b)). The City maintains it did just that by 14 using a more favorable divisor. See City’s Tr. Br. re Legal Issues at 8. Plaintiffs disagree on the 15 sole ground that the proper divisor on this record is 224. See Plaintiffs’ Supp. Tr. Br. at 8; Trial 16 Tr. at 70:7-72:1. If the divisor is indeed the number of hours actually worked instead of 224, 17 plaintiffs have not advanced any non-speculative ground for concluding that the City underpaid 18 them in certain work periods. 19 The Supreme Court and other federal courts have recognized that properly determining the 20 FLSA regular rate is “perplexing,” Bay Ridge Operating Co., 334 U.S. at 448, and “an often tricky 21 calculation,” Hills v. Entergy Operations, Inc., 866 F.3d 610, 614 (5th Cir. 2017). Because 22 plaintiffs here are not paid by means of an hourly wage, it is necessary to ascertain “all payments 23 which the parties have agreed shall be received regularly during the workweek” and convert that 24 into an hourly rate. Bay Ridge Operating Co., 334 U.S. at 461; see 29 C.F.R. § 778.109 (“The 25 ‘regular rate’ under the Act is a rate per hour. The Act does not require employers to compensate 26 employees on an hourly rate basis. . . . it is [then] necessary to compute the regularly hourly rate of 27 such employees during each workweek.”). 1 The record demonstrates that the biweekly salary paid pursuant to the salary schedule falls 2 into the category of payments the parties “have agreed shall be received regularly during the 3 workweek.” Bay Ridge Operating Co., 334 U.S. at 461. But plaintiffs’ FLSA regular rate is not 4 limited to their biweekly salaries. The various add-on payments at issue in this litigation should 5 also be included. See, e.g., O’Brien, 350 F.3d at 294 (“[T]he regular rate cannot be stipulated by 6 the parties.”). 7 The relevant add-on payments include “Anti-Terrorism Pay,” “Emergency Medical 8 Technician” pay, “Paramedics” pay, “Bilingual Premium Pay,” and “Holiday In-Lieu Pay.”1 See 9 MOA §§ 5, 24; Trial Exh. 142 at ECF 2-3. These add-on payments are regularly paid to the 10 firefighters in connection with their usual scheduled hours, are based on the biweekly salary 11 schedule, and are not tied to contractual or FLSA overtime. See MOA §§ 5, 24. The payments do 12 not resemble the categories of remuneration statutorily excluded from the regular rate. See 29 13 U.S.C. § 207(e). The MOA provides most of these add-on payments to compensate firefighters 14 for skills or training in specialized areas. See MOA § 5. The Holiday In-Lieu Pay appears to be a 15 sort of premium for having to work unfavorable hours that overlap with a holiday (like paying 16 employees slightly more for working graveyard shifts). See MOA § 24.2; 29 C.F.R. § 778.207 17 (“The Act requires the inclusion in the regular rate of such extra premiums as nightshift 18 differentials.”). Other courts have recognized analogous add-on payments to be properly 19 includable in the FLSA regular rate, and the Court sees no basis for disagreeing. See, e.g., Bay 20 Ridge Operating Co., 334 U.S. at 467-68; Chavez v. City of Albuquerque, 630 F.3d 1300, 1305- 21 06, 1311-12 (10th Cir. 2011); O’Brien, 350 F.3d at 294-97. At heart, the add-on payments are 22 salary enhancements intended to compensate or incentivize skilled or valuable firefighters while 23 keeping each firefighter classification in lockstep on the salary chart. 24 25 1 Taking plaintiff Barnett as an example, he also was paid a uniform allowance and cellular phone 26 stipend. Trial Exh. 142 at ECF 2. Neither party contends that either payment is relevant for FLSA purposes, and the Court agrees, as both appear to be properly excludable from the reasonable rate 27 as “reasonable payments for traveling expenses, or other expenses, incurred by an employee in the 1 Consequently, it follows that plaintiffs are correct that the proper divisor for arriving at the 2 FLSA regular rate is the fixed number of scheduled hours, meaning the FLSA regular rate is the 3 base hourly rate + (total add-on payments for the work period / 224), where the base hourly rate is 4 the biweekly salary divided by 112.2 The Department of Labor (DOL) publishes non-binding 5 guidance in the Code of Federal Regulations that is frequently cited with approval and relied on by 6 the federal courts in applying the FLSA’s overtime provisions. See, e.g., Hills, 866 F.3d at 614; 7 Smiley, 839 F.3d at 330; Aaron v. City of Wichita, 54 F.3d 652, 655 (10th Cir. 1995). In the case 8 of salaried employees, which includes plaintiffs, the regulations explain that “the regular hourly 9 rate of pay, on which time and a half must be paid, is computed by dividing the salary by the 10 number of hours which the salary is intended to compensate.” 29 C.F.R. § 778.113(a) (emphasis 11 added). Plaintiffs are scheduled for 56 hours per week and are compensated on a biweekly basis. 12 The number of hours their biweekly salary is intended to compensate is 112, and so the proper 13 divisor for the biweekly salary and the add-on payments (which, as discussed above, are just 14 salary enhancements) is either 112 or 224, depending on how the numerator is defined. See supra 15 note 2; see also Hills, 866 F.3d at 614; Aaron, 54 F.3d at 655 (“The bi-weekly salaries found in 16 the MOA were intended to cover 112 hours of work for each pay period. Therefore, the regular 17 rate consisted of the MOA-designated bi-weekly salary divided by 112.”); cf. Brennan v. Valley 18 Towing Co., Inc., 515 F.2d 100, 104-05 (9th Cir. 1975). 19 The City contests this conclusion mainly on the ground that plaintiffs are hourly and not 20 salaried employees. For this theory, the City depends primarily on Abshire v. County of Kern, 908 21 F.2d 483 (9th Cir. 1990), and DOL regulations defining the phrase “salary basis,” 29 C.F.R. 22 § 541.602. 23 Neither citation carries the day for the City. To start, Abshire was abrogated by the 24 Supreme Court’s ruling in Auer v. Robbins, 519 U.S. 452 (1997). See Childers v. City of Eugene, 25 2 The method for determining plaintiffs’ FLSA regular rate can be formulated in several 26 mathematically equivalent ways. For instance, the base hourly rate can be calculated with the following equations: (a) biweekly salary / 112; (b) (biweekly salary x 2) / 224; 27 (c) ((biweekly salary x 26) / 52) / 56. As for the add-on payments, one can either take the total of 1 120 F.3d 944, 947 (9th Cir. 1997) (“Auer therefore implicitly overrules Abshire.”). So even if the 2 rule articulated in Auer were applicable, the City adduced zero evidence that plaintiffs are subject 3 to deductions in pay “as a practical matter.” 519 U.S. at 461. 4 In addition, § 541.602 defines “salary basis” for regulations relating to exemptions from 5 the FLSA. See 29 C.F.R. §§ 541.100-300; see also id. § 541.602 (“An employee will be 6 considered to be paid on a ‘salary basis’ within the meaning of this part . . .” (emphasis added)).3 7 The City offers no reason why the definition of the phrase “salary basis,” which by the 8 regulations’ own terms is specific to the § 541 regulations serving a different purpose from the 9 regulations providing guidance on regular-rate calculations, should be transplanted into § 778. It 10 bears mention that the plain text of §§ 778.113 does not recurringly use the phrase “salary basis” 11 in the way the § 541 regulations do, thereby undercutting the notion that it implicitly means to 12 import the phrase’s term-of-art meaning from elsewhere. The City also appears to concede that a 13 fixed divisor of 112 is proper for calculating the base hourly rate under the FLSA but still says that 14 the add-on payments should have a variable divisor. See City’s Tr. Br. re Legal Issues at 10. To 15 contend that the firefighters simply aren’t salaried is in tension with the acknowledgment that at 16 least part of the FLSA reasonable rate should have a fixed divisor. 17 The City says that this asymmetry is of no moment and that this case is on all-fours with 18 the Tenth Circuit’s ruling in Chavez v. City of Albuquerque. There, the Tenth Circuit dealt with, 19 inter alia, a FLSA dispute between firefighters and the City of Albuquerque (Albuquerque), which 20 employed a similar method for calculating the FLSA regular rate. See 630 F.3d at 1306 (“[T]he 21 City multiplies the total hours worked by the [base hourly] rate and adds the add-on payments. 22 This sum is divided by the total number of hours worked, and the quotient is the [FLSA] regular 23 rate.”). The collective bargaining agreement in that case set forth a base hourly rate and included 24 various add-on payments paid in lump sums on a biweekly basis. Id. at 1305. 25 26
27 3 The Court notes the regulations state that firefighters are not subject to the statutory exemptions 1 Among other challenges, the firefighters argued that Albuquerque’s practice of using the 2 number of hours actually worked as the divisor for the add-on payments was improper. In 3 rejecting the firefighters’ contention, the Tenth Circuit first observed that the add-on payments 4 were not provided for in the collective bargaining agreement as “an hourly rate increase” but 5 rather were “lump sum payments . . . not dependent on hours worked.” Id. at 1312. The court 6 thereafter looked to 29 C.F.R. § 778.109 and seemingly analogized the add-on payments at issue 7 to the production bonuses discussed in § 778.110(b), which the DOL views, according to the 8 court, as “general compensation rather than additional hourly compensation.” 630 F.3d at 1312. 9 On that basis, the Tenth Circuit concluded that the proper divisor was the number of hours actually 10 worked and not the regular workweek as defined under the collective-bargaining agreement. Id. at 11 1312-13. 12 Chavez is neither binding nor persuasive. Chavez never acknowledged the guidance in 13 § 778.113 with respect to salaried workers. This omission may be related to the court’s 14 conclusion that the add-on payments were similar to the lump-sum production bonuses discussed 15 in § 778.110. The add-on payments at issue here are not tied to any sort of output, like a 16 production bonus is. Rather, the add-on payments are either shift differentials (in the case of 17 Holiday In-Lieu pay) or compensation for having certain skills that make the firefighter more 18 valuable as a firefighter (e.g., paramedic certification). So viewed, the add-ons are salary 19 enhancements. 20 The City offers no reason why the mere fact the add-on payments are paid in lump sums 21 alongside the biweekly salary, instead of being integrated into plaintiffs’ pay as an increase in 22 hourly compensation, alone should suffice to change the payments’ nature as a salary 23 enhancements. To so conclude would exalt form over substance. Nor does the City offer a 24 persuasive reason why the fact the City and the union bargained for contractual overtime at a 25 lower rate, by pegging the base hourly rate solely to the biweekly salary schedule and not also the 26 add-on payments, should affect the add-on payments’ nature as salary enhancements. It seems 27 perfectly sensible for the City to negotiate a lower contractual overtime rate if the firefighters 1 mention that the FLSA “was not intended to [diminish] the ability of labor and management to be 2 creative in resolving labor disputes in a manner which is mutually beneficial.” Wheeler v. 3 Hampton Township, 399 F.3d 238, 242 (3d Cir. 2005) (quotation omitted). 4 The City’s other theories are equally unavailing. It says that “[t]here is no reason for this 5 Court to deviate,” City’s Tr. Br. re Legal Issues at 5, from the Ninth Circuit’s conclusion in 6 Wallace that the proper divisor is “the total number of hours actually worked.” 799 Fed. App’x at 7 480 (quoting 29 C.F.R. § 778.109). The suggestion is not well taken. Wallace expressly declined 8 to decide the parties’ disagreement “over the total remuneration and total hours that should be 9 used.” Id. Moreover, the regulation Wallace cited is a generate statement of the rule for 10 calculating the FLSA regular rate that explains “[t]he following sections give some examples of 11 the proper method for determining the regular rate of pay in particular instances.” 29 C.F.R. 12 § 778.109. One of those following sections is § 778.113, which, as discussed, concerns salaried 13 employees. 14 The City also says its preferred result is required by Overnight Motor Transportation Co. 15 v. Missel, 316 U.S. 572 (1942), superseded by statute on other grounds as recognized in Trans 16 World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). See City’s Tr. Br. re Legal Issues at 6; Dkt. 17 No. 115 (City’s Supp. Tr. Br.) at 6-7. That case is again of no help to the City. It addressed what 18 the regulations now dub the “fluctuating workweek” method of calculating FLSA overtime. See 19 29 C.F.R. § 778.114; O’Brien, 350 F.3d at 287 n.15 (“[Section] 778.114 represents the Secretary 20 of Labor’s implementation of the Supreme Court’s holding in [Missel].”). In addition, the City 21 simply parroted Missel’s holding without saying how or why it might apply to the firefighters 22 here.4 See 29 C.F.R. § 778.114(a) (providing that overtime compensation may be calculated on 23 that method if certain circumstances obtain). “The Court does not review a party’s motion papers 24 and offer coaching pointers for a second round of briefs. The burden is on the party to make its 25 case in the first instance, as it sees fit.” Nat’l Fam. Farm Coalition v. Vilsack, --- F. Supp. 3d ---, 26 4 Additionally, the City cited no controlling authority as to who bears the burden of establishing 27 whether the fluctuating-workweek method does or does not apply. See O’Brien, 350 F.3d at 288 1 2024 WL 4951257, at *15 (N.D. Cal. Dec. 2, 2024) (quoting In re Google Play Store Antitrust 2 Litig., 556 F. Supp. 3d 1106, 1108 (N.D. Cal. 2021)). 3 It bears mention that the City and the firefighters’ union saw it fit to maintain a lockstep 4 classification-based payment schedule while also ensuring that higher skilled firefighters are 5 adequately compensated for those skills brought to bear in the course of their work. The Court 6 will not disturb the “actual fact” that the add-on payments are salary enhancements. Bay Ridge 7 Operating Co., 334 U.S. at 461. Consequently, plaintiffs are right that the proper divisor for 8 calculating the FLSA regular rate is a fixed number of either 112, if the numerator is the add-on 9 payment total for one MOA pay period, or 224, if the numerator is the add-on payment total for 2 10 MOA pay periods. 11 Even so, the City says it paid plaintiffs more than the FLSA required, and so nothing more 12 is due to them. At trial, evidence was introduced purporting to show that, even if plaintiffs’ 13 preferred fixed divisor was used, plaintiffs were compensated more than was due under the FLSA. 14 See Trial Tr. at 72:8-73:2; Trial Exh. 860. These figures are of little value for two reasons. The 15 FLSA is concerned with ensuring laborers are paid the “minimum overtime compensation” for 16 each hour of overtime worked. Siegmund, 461 Fed. App’x at 641 (quotation omitted). Total 17 amounts paid for a given 28-day work period are of little value in assessing whether plaintiffs 18 received that which the FLSA mandates they receive for each individual hour of overtime labor. 19 See Ballaris, 370 F.3d at 914. In addition, and as will be explained, the amount paid under the 20 MOA to which the City is looking is not the right figure of comparison for determining FLSA 21 compliance because that amount is artificially inflated with compensation that cannot be credited 22 against the City’s FLSA overtime obligations. See Trial Tr. at 73:25-74:9. 23 III. THE CITY’S “DUAL CALCULATION” METHOD AND IMPROPER 24 CREDITING 25 The issue of “crediting,” which only comes up because the City already pays plaintiffs a 26 premium for overtime under the MOA, albeit a more modest one, has been a source of confusion 27 in this case and in the Wallace litigation. See, e.g., Trial Tr. at 7:25-8:2 (The Court: “You need to 1 improper overtime credit.’”); Wallace, 799 Fed. App’x at 480. Part of the confusion is because the 2 statutory language is “creditable,” 29 U.S.C. § 207(h), but there is no formula to which plaintiffs 3 can point in which there is a “credit” function being factored in. 4 In furtherance of Congress’s dual goals of guaranteeing a floor for overtime compensation 5 and not tying labor and management’s hands in negotiations, the FLSA accounts for the possibility 6 that employment contracts may include overtime provisions tailored to the employment 7 relationship. To this end, the FLSA’s establishment of a minimum of overtime pay due to 8 employees is independent of any additional compensation for which the parties bargained except 9 where the compensation is “[e]xtra compensation paid as described in paragraphs (5), (6), and (7) 10 of subsection (e),” which “shall be creditable toward overtime compensation payable pursuant to 11 this section.” 29 U.S.C. § 207(h)(2). In essence, Congress did not want to force employers to pay 12 “double” overtime premiums and so permits employers to treat every dollar of contractual 13 overtime, as defined in § 207(e)(5)-(7), as a dollar of FLSA overtime due. See Wheeler, 399 F.3d 14 at 245; Howard v. City of Springfield, 274 F.3d 1141, 1146-47 (7th Cir. 2001); Alexander v. 15 United States, 32 F.3d 1571, 1575 n.4 (Fed. Cir. 1994). 16 To recap, contractual overtime in this case is paid at a rate less than the FLSA’s overtime 17 premium rate. The City attempts to ensure its compliance with the FLSA by running two different 18 calculations: one to determine how much a firefighter is owed under the MOA and a second to 19 determine how much said firefighter is due under the FLSA. The City then pays the higher 20 amount. Trial Exh. 104 at Interrogatory Response No. 1. There is no dispute that, if the 21 firefighter does not work more than 212 hours in the 28-day work period, there is no problem, for 22 there simply is no statutory overtime obligation. There also is no dispute that, if the firefighter 23 works all 56 scheduled hours per week (224 hours across the work period) and no more, the City 24 pays the firefighter 12 hours’ worth of the FLSA overtime premium, and there is no problem 25 there, either. Trial Tr. at 36:16-37:5. That is because no contractual MOA was due and only 26 FLSA overtime was due. Finally, the parties agree that, if the firefighter works all 56 scheduled 27 hours per week and then a bunch of extra unscheduled hours, the City need only pay the difference 1 36:16-37:5. That is the case because all contractual overtime hours were also FLSA overtime 2 hours, and contractual overtime is paid at a lesser rate. In these latter scenarios, the City is indeed 3 taking “credits” against its FLSA obligations. 4 The dispute concerns a firefighter who does not work 212 hours’ worth of scheduled hours 5 (due to sick or vacation time) but then works enough extra unscheduled hours to push him over the 6 212-hour mark. See, e.g., Trial Tr. at 18:15-24. In these circumstances, not all contractual 7 overtime hours are FLSA overtime hours. Some of those hours were overtime under the MOA but 8 not overtime under the FLSA. When this occurs, “[t]he City’s position is that, in determining 9 whether it has paid at least what is required by the FLSA, it may consider all contractual overtime 10 paid at 1.5x, regardless of whether that overtime was paid for hours worked under 212 hours per 11 work period or over 212 hours per work period.” SUF No. 21. Plaintiffs contend that considering 12 the whole 1.5x base rate paid for contractual overtime hours under the 212-hour threshold is 13 unlawful because only the .5x is extra compensation within the meaning of 29 U.S.C. § 207(h)(2) 14 and so only that .5x amount may be considered in determining if the City’s FLSA overtime 15 obligations have been discharged. See, e.g., Trial Tr. at 23:22-25; Plaintiffs’ Supp. Tr. Br. at 6-8. 16 The evidence with respect to plaintiff Barnett illustrates this. For the relevant work period, 17 Barnett worked 197 FLSA overtime hours. Trial Exh. 142 at ECF 2-3. Applying the proper fixed 18 divisor, Barnett’s FLSA regular rate of pay for that period was $61.51.5 So, for those 197 hours, 19 Barnett should have received $18,176.21,6 which is comprised of both his base hourly rate and the 20 FLSA overtime premium, under the statute. Under the MOA, Barnett received contractual 21 overtime in the form of 1.5x his base hourly rate for those 197 hours: $16,516.48,7 which includes 22 both his base hourly rate and the contractual overtime premium. But Barnett worked 217 extra 23 unscheduled hours during the work period, meaning he was paid contractual overtime for 20 extra 24 unscheduled hours below the FLSA’s 212-hour threshold. If the City were right that it may 25 consider the entirety of the amount paid to Barnett for those 20 hours in checking its compliance 26 5 (6,259.20 / 112) + (629.21 / 112) = $61.51. 27 6 That total is derived from multiplying his FLSA regular rate by 1.5, and then multiplying that by 1 with the statute, then the amount paid under the MOA to which the City may properly look to see 2 if it discharged its statutory obligations is $18,193.28.8 There would be no FLSA violation if this 3 were the case, because Barnett was paid more for those hours of statutory overtime than the statute 4 requires. But if plaintiffs are right, and only the .5x that constitutes the premium for contractual 5 overtime should be counted, then the amount per the MOA that is proper to consider is 6 $17,075.38.9 There would be a difference of $1,100.83 in overtime pay due under the FLSA that 7 Barnett was not paid in the work period.10 8 With the issues so illuminated by the record, the dispositive question is to what does 9 “[e]xtra compensation,” as used in § 207(h)(2), refer in such circumstances. This is a question of 10 statutory interpretation on which neither party has offered controlling authority. Plaintiffs contend 11 that the contractual overtime provided by the MOA is the sort of extra compensation contemplated 12 by § 207(e)(7), which is cross-referenced by § 207(h)(2), and so that subsection provides the 13 relevant statutory text. See Plaintiffs’ Supp. Tr. Br. at 6-7. The City offers no meaningful 14 response, and in any case, it is not clear it matters here which of the three subsections referenced 15 in § 207(h)(2) controls. 16 Section 207(e)(7) describes: [E]xtra compensation provided by a premium rate paid to the 17 employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside the hours 18 established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek 19 (not exceeding the maximum workweek applicable to such employee under subsection (a)[)], where such premium rate is not less than one 20 and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or 21 workweek[.] 22 Plaintiffs make much of the language “extra compensation provided by a premium rate.” 29 23 U.S.C. § 207(e)(7) (emphasis added). They say that by the MOA’s own terms the premium for 24 contractual overtime is the .5x of the base hourly rate, for the remaining monies paid pursuant to 25 8 217 x (55.89 x 1.5) = $18,193.28. 26 9 (197 x (55.89 x 1.5)) + (20 x (55.89 x .5)) = $17,075.38. 10 The figure offered by plaintiffs is $1,101.81. Trial Exh. 142 at ECF 1. The less than one dollar 27 difference between plaintiffs’ calculation and the Court’s is of no moment. The underlying 1 contractual overtime is simply that which plaintiffs are owed as a normal matter for their labor 2 under the contract. See Dkt. No. 90 (Plaintiffs’ Tr. Br.) at 4-6. 3 The plain language of the statute is not so clear cut. Excluding the long subordinate clause 4 beginning with “in pursuance,” the text reads: “[E]xtra compensation provided by a premium rate 5 paid to the employe . . . where such premium rate is not less than one and one-half times the rate 6 established . . . for like work performed during such workday.” 29 U.S.C. § 207(e)(7). The 7 “where such premium rate” prepositional phrase suggests the proper focus is on “premium rate” as 8 a phrase. Viewed thusly, the statute is read to say the “extra compensation” is the entirety of the 9 compensation which results from a “premium rate,” which must be at least 1.5x the normal rate. 10 Id. This reading arguably weighs in favor of the City’s position. 11 But in the final analysis, plaintiffs have the better reading. DOL has promulgated 12 extensive guidance on § 207(e)(5)-(7). See generally 29 C.F.R. §§ 778.200-207. Different 13 sections provide guidance on the relevant subparts of § 207(e), and all are consistent in their 14 conclusions that only the additional amount above and beyond the base rate is creditable. DOL 15 gives the following example to illustrate the effect of (e)(7): “[I]f an employee is paid $5 per hour 16 under such an agreement for handling general cargo during the basic, normal, or regular workday 17 and $7.50 per hour for like work outside of such workday, the extra $2.50 will be excluded from 18 the regular rate and may be credited to overtime pay due under the Act. . . . Similar principles are 19 applicable where agreements following this general pattern exist in other industries.” 29 C.F.R. 20 § 778.206; see also id. §§ 778.202(c), 778.205. Although agency interpretations of statutes do not 21 bind the Court, DOL’s guidance on this point evinces “thoroughness . . . in its consideration” and 22 is “consisten[t] with earlier and later pronouncements,” both of which are “factors which give [the 23 guidance] power to persuade.” Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 388 (2024) 24 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). 25 The agency is not alone in this understanding. In O’Brien v. Town of Agawam, the First 26 Circuit addressed the crediting issue in connection with a collective bargaining agreement that 27 paid officers a set amount for regular scheduled hours but also “extra pay for every hour worked 1 whether [the officer’s] total number of hours worked for the week exceeds forty.” 350 F.3d at 2 289. Citing to the same DOL regulations, the First Circuit stated that “only the premium portion 3 of the contractual overtime rate (that is, the amount in excess of the employee’s regular rate) is 4 deemed ‘overtime’ pay and may be offset against any statutory overtime liability in the same 5 week.” Id. (emphasis in original); see also Singer v. City of Waco, 324 F.3d 813, 827 (5th Cir. 6 2003) (explaining that the “overtime premiums are extra payments made by employers. These 7 sums are excluded from the total salary (from which the regular hourly rate is calculated) so that 8 they do not improperly inflate the [FLSA regular rate]”); Caraballo v. City of Chicago, 969 F. 9 Supp. 2d 1008, 1024 (N.D. Ill. 2013) (“[T]he City was entitled to a credit for the half-time portion 10 of that pay because the half-time portion represents the ‘extra’ compensation.” (emphasis added)). 11 There is also good sense in not allowing the City to credit the whole amount of the 12 contractual overtime paid for hours under the FLSA-threshold. Under the FLSA, any hours 13 worked below the statutory threshold are not “overtime” for any statutorily relevant purpose, 14 notwithstanding contrary labels provided by employment contracts. See 29 C.F.R. § 778.101; 15 O’Brien, 350 F.3d at 289 (“[A]ll hours worked under the statutory maximum are non-overtime 16 labor.”). To permit the City to consider the whole amount paid for those contractual overtime 17 hours (an amount which includes both the base hourly rate and the contractually agreed-upon 18 “overtime” premium) in determining if it has paid the FLSA overtime premium would allow the 19 City to double count compensation paid for a single hour of labor. See Alvarez v. IBP, Inc., 339 20 F.3d 894, 902 (9th Cir. 2003) (“It is axiomatic, under the FLSA, that employers must pay 21 employees for all ‘hours worked.’” (quotation omitted)), aff’d on other grounds by 546 U.S. 21 22 (2005); see also Smiley, 839 F.3d at 334 (“To allow compensation included in the regular rate to 23 offset premium-rate pay, however, would facilitate a ‘pyramiding’ in the opposite direction by 24 allowing employers to pay straight time and overtime together. This approach fundamentally 25 conflicts with the FLSA’s concern that employees be compensated for all hours worked.”); 26 Ballaris, 370 F.3d at 914 (“[I]t would undermine the purpose of the FLSA if an employer could 27 use agreed-upon compensation for non-work time (or work time) as a credit so as to avoid paying 1 To be clear, this interpretation does not hinge on giving the phrase “extra compensation” 2 two different meanings depending on whether the hour of labor performed occurs above or below 3 the 212-hour threshold. The FLSA mandates a particular premium to be paid on top of the normal 4 hourly rate to which the parties have agreed. When the City considers the whole amount of 5 contractual overtime it pays plaintiffs for hours worked above the 212-hour mark, it is in effect 6 just matching up the portion of the contractual overtime that corresponds to the normal hourly 7 rate, which must be paid in any case, and then “crediting” the contractual overtime premium 8 against the FLSA mandated premium. Consequently, whether below or above the 212-hour mark, 9 “extra compensation” still refers to the premium slice atop the normal hourly rate. 10 Here, the firefighters bargained for additional pay, comprised of an hourly rate tied to their 11 biweekly salaries with a contractual overtime premium atop that, to be paid whenever they worked 12 extra unscheduled hours outside their regular schedules, even when those hours were not overtime 13 within the meaning of the FLSA. The City may not undercut this bargain by crediting both the 14 contractually agreed-upon premium and the base hourly compensation for each of those individual 15 hours of non-statutory overtime labor against the premium the FLSA requires be paid for hours of 16 statutory overtime labor. The City certainly did not identify a statute that might permit that. See 17 Wheeler, 399 F.3d at 245 (“Where a credit is allowed, the statute says so.”). 18 IV. THE REMEDY 19 The closing question is the remedy for Barnett and the approximately 200 plaintiffs who 20 joined him in this suit. The SAC seeks a declaration relating to those rights and duties provided or 21 created by the FLSA, without identifying the source of the declaratory remedy. See SAC ¶¶ 21- 22 22. Consequently, whether available directly under the FLSA or pursuant to 28 U.S.C. § 2201, 23 such relief may be granted here. See, e.g., Biggs v. Wilson, 1 F.3d 1537, 1538 n.2 (9th Cir. 1993); 24 Klem v. Cnty. of Santa Clara, 208 F.3d 1085, 1088 (9th Cir. 2000); Balgowan v. State of N.J., 115 25 F.3d 214, 218 (3d Cir. 1997); Cummings v. Cenergy Int’l Servs., LLC, 258 F. Supp. 3d 1097, 1107 26 (E.D. Cal. 2017). The City does not meaningfully contest this. 27 Consequently, plaintiffs are entitled to a declaration that the divisor the City should have 1 proper divisor the City should continue to use, insofar as plaintiffs’ pay structure is governed by a 2 similarly constructed MOA. Plaintiffs are also entitled to a declaration that the City may not 3 credit in any given work period, in which plaintiffs worked or will work some hours of contractual 4 overtime that fall below the FLSA’s 212-hour threshold, the full amount of contractual overtime 5 paid but may only credit the .5x premium provided by the MOA on top the base hourly rate. 6 Plaintiffs ask for backpay for work periods going back several years, so there is a question 7 of the proper limitations period. Based on the evidence adduced at trial, the statute of limitations 8 for all plaintiffs is two years. “Pursuant to § 255(a), the two-year statute of limitations for actions 9 under the FLSA may be extended to three years if an employer’s violation is deemed ‘willful.’” 10 Flores v. City of San Gabriel, 824 F.3d 890, 906 (9th Cir. 2016) (citation omitted). Plaintiffs bore 11 the burden of proving “that the employer either knew or showed reckless disregard for the matter 12 of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 13 128, 133 (1988). Plaintiffs did not introduce any evidence at trial on this score, and their trial 14 briefs contain, solely in connection with Barnett, unsubstantiated claims by counsel. Supp. Tr. Br. 15 at 3-5. Willfulness has not been shown. Flores, 824 F.3d at 906 (“A court will not presume that 16 conduct was willful in the absence of evidence.” (cleaned up)). It bears mention that the overtime 17 pay issues here were complex and required substantial analysis to work out, as the preceding 18 discussion amply demonstrates. There was plenty of room for disagreement and some mistakes 19 well short of intentional bad conduct. 20 Plaintiffs also ask for liquidated damages in an amount equal to the amount of back pay 21 they are owed. Once a violation of the FLSA is established, “an award of liquid damages is 22 mandatory” unless the employer meets its burden of affirmatively showing “that it acted in ‘good 23 faith’ and that it had ‘reasonable grounds’ to believe that its actions did not violate the Act.” 24 Flores, 824 F.3d at 905 (citing 29 U.S.C. § 260). The City made no attempt to introduce evidence 25 to meet this burden. Consequently, for plaintiffs entitled to compensation for work periods during 26 which they were unlawfully underpaid, liquidated damages are awarded in an equal amount. 27 The Court declines to undertake the burden of going through the pay records of 200+ 1 || jointly determine the amounts in a manner consistent with this order. The parties are further 2 || directed to file by March 3, 2025, a joint proposed payment report, which the Court will use as the 3 basis of the judgement. The report should include all damages figures to be awarded to each 4 || plaintiff. This deadline will not be extended without a substantial showing of good cause. 5 IT IS SO ORDERED. 6 Dated: January 31, 2025 7 8 JAM ONATO 9 Uniteff States District Judge 10 11 12
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