Clark v. United Emergency Animal Clinic, Inc.

390 F.3d 1124, 10 Wage & Hour Cas.2d (BNA) 241, 2004 U.S. App. LEXIS 25065
Court of Appeals for the Ninth Circuit·Decided December 7, 2004·No. Nos. 03-15267, 03-15269, 03-15344, 03-15347, 03-15613·Published·Cited by 4 cases

Opinion

RYMER, Circuit Judge.

These consolidated appeals require us to decide whether veterinarians are exempted from the overtime wage requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1).1

Dr. Lisa Clark and Dr. Margaret Saiki, who are veterinarians, appeal the summary judgment entered in favor of their employer, United Emergency Animal Clinic, Inc. (UEAC).2 Under the FLSA, certain professionals are exempted from the overtime requirements if they are paid on a salary basis. 29 U.S.C. § 213; 29 C.F.R. § 541.3. Additionally, certain physicians and practitioners need not be paid on a salary basis in order to be exempt from the overtime provisions of the FLSA. 29 C.F.R. § 541.314. The district court held that doctors of veterinary medicine are within the “physicians and other practitioners” exclusion from the salary requirements for the professional exemption under the FLSA, and therefore Clark and Saiki were exempt from the FLSA overtime requirements. Clark and Saiki argue that veterinarians do not fall within this exclusion and further argue that UEAC did not meet the “salary basis” requirement of the professional exemption, though they do not dispute that their work meets all the “duty requirements.” We agree with the district court that doctors of veterinary medicine are within the practice of medicine exception to the salary basis requirement, and therefore, are exempt from the overtime requirements of the FLSA. Accordingly, we affirm.

UEAC provides emergency care for animals at night, on weekends, and on holidays. Clark and Saiki were licensed veterinarians employed by UEAC who worked shifts of twelve or more hours at a time. UEAC calculated each veterinarian’s monthly pay by multiplying the number of shifts worked in a given month by the “per shift pay.”

The FLSA requires non-exempt employees to be compensated at the rate of time and one half for all hours worked in a [1126]*1126week of over forty hours. 29 U.S.C. § 207(a)(1). Overtime is defined as any employment in excess of forty hours in a single work week. However, “any employee employed in a bona fide executive, administrative, or professional capacity” is exempt. 29 U.S.C. § 213(a)(1). Regulations issued by the Secretary of Labor define what it means to work in a bona fide professional capacity. 29 C.F.R. § 541.3. The parties agree that Clark and Saiki meet the “duty” requirements because them primary duty consists of performing work that requires specialized knowledge, involves consistent exercise of discretion and judgment, and is predominantly intellectual and varied in character. 29 C.F.R. § 541.3(a), (b), (c), (d). They dispute whether the “salary” requirement is met. 29 C.F.R. § 541.3(e).

To satisfy the salary requirement an employee must be one

Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week ($150 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities: Provided, That this paragraph shall not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof.

Id. The Secretary has further prescribed that the exception to the salary requirement in subsection (e) for those who practice medicine “applies only to the traditional professions of law, medicine, and teaching and not to employees in related professions which merely serve these professions.” 29 C.F.R. § 541.314(a). In the case of medicine,

The exception applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term physicians means medical doctors including general practitioners and specialists, and osteopathic physicians (doctors of osteopathy). Other practitioners in the field of medical science and healing may include podiatrists (sometimes called chiropodists), dentists (doctors of dental medicine), optometrists (doctors of optometry or bachelors of science in optometry).

29 C.F.R. § 541.314(b)(1). Section 541.314(c) adds that “[i]n the case of medical occupations, the exception from the salary or fee requirement does not apply to pharmacists, nurses, therapists, technologists, sanitarians, dietitians, social workers, psychologists, psychometrists, or other professions which service the medical profession.”

Clark and Saiki contend that veterinarians are not within the term “physicians and other practitioners of medical science” as used in § 541.314(a). They point out that exemptions to overtime requirements are to be narrowly construed, A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945), and posit that UEAC has not shown that its employees fit “plainly and unmistakenly” within the exemption. See Abshire v. County of Kern, 908 F.2d 483, 485-86 (9th Cir.1990) (placing this burden on employers). Clark and Saiki also invoke the doctrines of ex-pressio unius est exclusio alterius and ejusdem generis in support of their position, noting that veterinarians are not specifically mentioned in § 541.314 whereas others who practice on humans are listed, and that most people do not use the term “physician” when referring to veterinarians.

UEAC counters that § 541.3(e) is broad enough to include veterinarians because doctors of veterinary medicine hold a li[1127]*1127cense permitting the practice of medicine and actually engage in the practice. It observes that § 541.314(b)(1) does not limit the “other practitioners” who are excepted to those listed but instead states that the phrase “may include” podiatrists, dentists, and optometrists. In addition, UEAC argues that § 541.314(b)(1) was not intended to be exhaustive because otherwise there would have been no need for the Secretary to identify related professionals who merely serve the medical profession to whom the exception does not extend.

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Clark v. United Emergency Animal Clinic, Inc., 390 F.3d 1124, 10 Wage & Hour Cas.2d (BNA) 241, 2004 U.S. App. LEXIS 25065 (9th Cir. 2004).

390 F.3d 1124 (Clark v. United Emergency Animal Clinic, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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No. 03-15267
390 F.3d 1124 (Ninth Circuit, 2004)