Burnley v. Short

730 F.2d 136, 26 Wage & Hour Cas. (BNA) 1111
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 12, 1984
DocketNos. 83-1101, 83-1102
StatusPublished
Cited by83 cases

This text of 730 F.2d 136 (Burnley v. Short) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnley v. Short, 730 F.2d 136, 26 Wage & Hour Cas. (BNA) 1111 (4th Cir. 1984).

Opinions

MICHAEL, District Judge.

Seven employees bring this action under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201-219 (1976), to recover minimum wage and overtime compensation from their employer, W. Spilman Short, owner and operator of Pinehurst Motel in Covington, Virginia. After a trial with an advisory jury, judgment was entered for the employees in the amount of $17,615.61 plus costs and attorney’s fees of $7,500. Five of the employees and the employer appeal. The employees contend that the employer should pay liquidated damages pursuant to 29 U.S.C. § 216(b) because he did not act in good faith and upon reasonable grounds in his failure to comply with the FLSA. The employer’s cross appeal protests that the trial judge overstated the period during which the FLSA covered his motel. Both the employees and the employer maintain that the trial judge made factual errors regarding hours the employees worked and the in kind valuation for compensation purposes of certain motel facilities. We conclude that the court below overstated the FLSA coverage and remand for recalculation of damages.

I.

In addition to the 30-room Pinehurst Motel, Short owned a smaller motel in Richmond, Virginia. The employees in this appeal are the husband and wife resident co-managers, a relief clerk, a maid, and a laundry operator at the Pinehurst. No one disputes that from the time Short purchased these motels in the early 1970’s until sometime in 1979 the FLSA clearly did not cover the motel employees. During calendar year 1978, the annual gross dollar volume for both motels was $245,000, substantially below the statutory threshold of $275,000. 29 U.S.C. § 203(s)(2) (Supp. II 1978). Precisely when in 1979 the employees became covered is at issue in this case. Moreover, the parties do not dispute that on July 1, 1980, the FLSA again no longer covered the employees. On July 1, 1980, the statutory threshold increased to $325,-000. Id.

The district court calculated Short’s gross annual dollar volume for 1979 to 1980 to determine whether Short met the statutory status requirements of an enterprise “engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 203(s)(2). In his computation of Short’s initial FLSA coverage, the trial judge used the “rolling quarters” method prescribed in an interpretive bulletin published in 29 C.F.R. § 779.266(b). In addition, the trial judge included all receipts from long distance telephone calls made by motel guests in his determination that FLSA coverage began on April 1, 1979.

Short first contends that instead of the “rolling quarters” method of calculating gross annual volume, the district court should have measured the annual dollar volume on a calendar or fiscal year basis. Short’s method would result in no coverage until January 1, 1980, when his regular annual accounting would put him on notice that his enterprise was within FLSA coverage. Under the “rolling quarters” method, on the other hand, an employer determines whether it is covered by the FLSA at the beginning of each quarter by calculating its annual dollar volume based on the sum of the four preceding quarters. 29 C.F.R. § 779.266(b).1

[139]*139“Courts are ‘obligated to regard as controlling a reasonable, consistently applied ... interpretation’ of an agency’s regulations by the agency charged with their enforcement.” Allen v. Bergland, 661 F.2d 1001, 1004 (4th Cir.1981) (quoting Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971)). See also Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Donovan v. 1-20 Motels, Inc., 664 F.2d 957 (5th Cir.1981); Talley v. Mathews, 550 F.2d 911, 919 (4th Cir.1977); K. Davis, Administrative Law Text § 5.03 (3d ed. 1972). The Fifth Circuit Court of Appeals has specifically considered the “rolling quarters” regulation in Usery v. Associated Drugs, Inc., 538 F.2d 1191 (5th Cir. 1976), and Donovan v. 1-20 Motels, Inc., 664 F.2d 957 (5th Cir.1981). Both cases turn on whether the “rolling quarters” method of computing an enterprise’s gross annual volume works a manifest unfairness on the employer. The “rolling quarters” method should be used by the court unless its application would make FLSA coverage “more speculative, constantly fluctuating or predictably unfair.” 1-20 Motels, 664 F.2d at 959. The district court carefully considered whether application of the “rolling quarters” method resulted in any unfairness to Short and concluded that the method was a fair approach to determine FLSA coverage. Importantly, the growth in annual volume of Short’s two motels was steady rather than fluctuating. His coverage only ceased in 1980 because Congress raised the threshold for coverage. The “rolling quarters” method thus should not be considered manifestly unfair in this case. Furthermore, the “rolling quarters” method provides for a more current and less speculative assessment of FLSA applicability. Accordingly, we hold that the “rolling quarters” method used by the district court was not an abuse of discretion.

We next turn to the issue of including gross long distance telephone receipts in the computation of gross annual volume. Short here contends that this computation should include only commissions charged by the motel on guests’ long distance phone calls rather than the total amount charged by the phone company plus the commission. If commissions rather than the total receipts are included, Short would not have been subject to the FLSA for the April 1 to June 30, 1979, quarter. His initial coverage would thus not have begun until July 1, 1979.

This court considers Falk v. Brennan, 414 U.S. 190, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973), to be controlling in this context. The United States Supreme Court in Falk held that the appropriate measure of sales made by a real estate management business was limited to the commissions received; the gross annual volume did not include gross receipts from rentals collected as agent for owners of real estate. In Falk, the Court drew a line between the seller of a product — where gross receipts from sales made should be included — and the seller of a service. In the latter, the Court reasoned that commissions received is the more relevant measure of an enterprise’s gross annual volume. Id. at 199, 94 S.Ct. at 433.

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730 F.2d 136, 26 Wage & Hour Cas. (BNA) 1111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnley-v-short-ca4-1984.