Burkhalter v. Sewerage & Water Board

791 So. 2d 665, 98 La.App. 4 Cir. 2747, 2000 La. App. LEXIS 1832, 2000 WL 1023218
CourtLouisiana Court of Appeal
DecidedJuly 12, 2000
DocketNo. 98-CA-2747
StatusPublished

This text of 791 So. 2d 665 (Burkhalter v. Sewerage & Water Board) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkhalter v. Sewerage & Water Board, 791 So. 2d 665, 98 La.App. 4 Cir. 2747, 2000 La. App. LEXIS 1832, 2000 WL 1023218 (La. Ct. App. 2000).

Opinion

JjBAGNERIS, Judge.

Plaintiffs/Appellants, employees of the New Orleans Sewerage and Water Board, appeal a decision rendered by the Civil Service Commission for the City of New Orleans (“CSC”), whereby the CSC found in favor of the Defendant/Appellee, the Sewerage and Water Board of New Orleans (S&WB). The CSC held that the wages paid to the appellants were consistent with the Civil Service Rules and all other applicable rules and consequently dismissed the employees’ claim of improper compensation. On appeal, the appellants argue that the S&WB improperly calculated the overtime compensation for its shift worker employees in such a manner so as to exclude the shift differential entitlements for overtime hours actually worked. We agree with the appellants’ argument. For the reasons stated below, we reverse the ruling of the CSC.

FACTS AND PROCEDURAL HISTORY

On August 12, 1997, employees of the New Orleans Sewerage and Water Board (hereinafter “the appellants”) appealed to the City Civil Service Commission (“CSC”) contesting a Sewerage and Water Board (“S&WB”) policy, which took effect on or about September 10, 1996. This policy related specifically | ?to the guaranteed shift differential pay of S&WB shift workers. The appellants worked 48-hour shifts each week at one or more of the S&WB’s pumping stations. The matter was assigned to a Hearing Examiner by the Civil Service Commission pursuant to Article X, Section 12 of the Louisiana Constitution. On June 16, 1998, a hearing was held.

APPLICABLE LAW

CSC Rule IV, § 1.6 provides that any full-time employee required to work either a seven (7) or eight-(8) hour shift “around the clock” shall be granted additional monetary compensation. Moreover, employees who worked the night shift between the hours of 3:00 p.m.-ll:00 p.m. received an additional pay differential of 2.6%, while employees who worked the night shift between the hours of 11:00 p.m. — 7:00 a.m. received an additional pay differential of 5.0%. The appellants worked both the 3:00 p.m. — 11:00 p.m. shift, for which they were entitled to the 2.5% pay differential and the 11:00 p.m. — 7:00 a.m. shift, for which they were entitled to the 5.0% pay differential on a rotating basis.

CSC Rule IV, § 9 has incorporated the minimum wage and overtime requirements of the federal Fair Labor Standards Act, 29 U.S.C. § 201, et. seq. It provides that non-exempt employees shall be paid overtime at their appropriate rate of not less than one and one-half times their rate of pay for each hour worked in a work period in excess of the maximum hours allowable, which are applicable to the type of employment in which the employee is engaged.

Moreover, CSC Rule IV, § 9.3 has expressly adopted the provisions of 29 U.S.C. § 207(a) (1) which require that all nonexempt classified employees shall be paid overtime at the regular hourly base rate for all hours worked in excess of forty (40) hours in a seven (7) consecutive day work period.

^Lastly, CSC Rule I, § 10 defines “base rate” as that amount established by the CSC as enumerated in the pay range scale of the classified pay plan which represents salary or wages earned by or paid to any employee by reason of services rendered in any position, exclusive of all overtime payment, shift differential pay, special [667]*667rates of pay and temporary pay increases earned in accordance with their rules.

I. THE SEWERAGE AND WATER BOARD IMPROPERLY CALCULATED THE OVERTIME COMPENSATION OF ITS SHIFT WORKER EMPLOYEES IN SUCH A MANNER SO AS TO EXCLUDE SHIFT DIFFERENTIAL ENTITLEMENTS FOR OVERTIME HOURS ACTUALLY WORKED.

Regarding this particular issue, we find the appellants’ argument compelling. Likewise, we find the federal jurisprudence they have cited in their argument directly on point with the issue at bar. Specifically, § 207(a)(1) of the Fair Labor Standards Act provides the following:

Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, for a workweek longer than forty (40) hours unless such employee receives compensation for his employment in excess of the hours specified at a rate not less than one (1) and one-half Qk) times the regular rate at which he is employed. (Emphasis Added).

Regular rate includes all remuneration paid to an employee and is generally calculated by dividing the total compensation paid by the numbers of hours worked in a workweek. Brock v. Two R Drilling Co., Inc., 772 F.2d 1199, 1200 (5th Cir.1985). Shift differentials, whether paid contemporaneously in an hourly wage or deferred in a bonus fashion, are included in the regular rate. Thomas v. Howard Univ. Hosp., 39 F.3d 370, 372 (D.C.Cir.1994); Featsent v. City of Youngstown, 70 F.3d 900, 904 (6th Cir.1995). The Act requires the inclusion in the regular rate of such extra premiums as night shift differentials, whether they take the form of a Lpercent of the base rate or an addition of so many cents per hour, and premiums paid for hazardous, arduous or dirty work. 29 C.F.R. § 778.207(b). Overtime compensation, when triggered in a workweek, must be computed on a basic hourly rate established by contract between an employer and employee, as well as any shift differential that may not be included in the basic rate. 29 C.F.R. § 548.502.

We begin our analysis with the appellants’ promulgated clear and concise method of determining the correct remuneration for shift employees under the CSC guidelines and the articulated precedence. The appellants earned a base hourly rate of $10.03. When working the 3:00 p.m. — 11:00 p.m. shift, the shift pay differential at issue, their base salary was increased to $10.28.1 That sum is then multiplied by forty (40) in order to ascertain their average weekly salary, which is $411.20.2 The compensation for the eight (8) hours overtime is then determined by multiplying the hourly rate of pay, including the shift pay differential, $10.28 times one and a half (1.5) times eight (8) hours. This amount totals $123.36. The two amounts are then added together, and, the total amount that the appellants are entitled to for a forty-eight hour workweek is $534.56.3

Alternatively, the S&WB has put forth a computer expert, Mr. Stuart Sebille (“Mr. Sebille”), who suggests that the calculation of overtime compensation is “not an easy calculation.” Mr. Sebille contends that in[668]

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Alexander v. State Bd. of Med. Examiners
644 So. 2d 238 (Louisiana Court of Appeal, 1994)
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Featsent v. City of Youngstown
70 F.3d 900 (Sixth Circuit, 1995)

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791 So. 2d 665, 98 La.App. 4 Cir. 2747, 2000 La. App. LEXIS 1832, 2000 WL 1023218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkhalter-v-sewerage-water-board-lactapp-2000.