Hickey v. Kansas Corporation Comm'n

765 P.2d 1108, 244 Kan. 71, 29 Wage & Hour Cas. (BNA) 193, 1988 Kan. LEXIS 232
CourtSupreme Court of Kansas
DecidedDecember 9, 1988
Docket61,377
StatusPublished
Cited by7 cases

This text of 765 P.2d 1108 (Hickey v. Kansas Corporation Comm'n) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickey v. Kansas Corporation Comm'n, 765 P.2d 1108, 244 Kan. 71, 29 Wage & Hour Cas. (BNA) 193, 1988 Kan. LEXIS 232 (kan 1988).

Opinions

The opinion of the court was delivered by

Holmes, J.:

This is a class action in which plaintiffs sought additional compensation for hours during which they were assigned to handle telephone inquiries from their homes on behalf of the Kansas Corporation Commission (KCC). Following judgment in the trial court, the plaintiff class filed this appeal and the KCC filed a cross-appeal. We reverse.

The controlling facts are not disputed by the parties. The plaintiff class includes forty petroleum industry regulatory technicians (PIRTs) employed by the KCC, and eight environmental technicians (ETs) employed by the Kansas Department of Health and Environment (KDHE). Effective July 1, 1982, the two state agencies embarked upon an enhanced program for [72]*72regulation of the oil and gas industry, as directed by 1982 Senate Bill 498, codified at K.S.A. 55-150 et seq. The legislation was adopted to assist in the control and prevention of surface and groundwater pollution. The legislation required the oil and gas industry, among other things, to notify the KCC before setting surface casing on a well, plugging a well, or in case of an accident or emergency which might cause pollution. It also directed the KCC and the KDHE to enter into a comprehensive interagency agreement providing for a management plan designed to integrate field operations for the regulation of oil and gas operations. The resulting agreement and plan became known as the “498 program.”

The agencies implemented the program in part by requiring members of the plaintiff class to respond to telephone calls at night, on weekends, and on holidays. Special telephones were installed at the employees’ homes for that specific purpose with the costs thereof paid by the state agencies. The employees were assigned to telephone duty on a rotating basis and when on duty were required to maintain a log of all calls received. Generally, plaintiffs provided advice and instructions over the telephone to oil and gas operators on the proper procedures to be followed in the field for the protection of surface and groundwater from pollution. Most of the calls were of a routine nature, but about 5 percent of the calls required an emergency response. When an emergency, such as an oil spill, did occur, the plaintiff taking the call was not to leave home, but was to contact another employee to provide field assistance. About 30,000 calls were handled by the plaintiffs during a total of approximately 80,000 man-hours of home telephone duty during the existence of the 498 program, which was finally terminated in June 1985.

When assigned to home telephone duty, the plaintiffs were required to remain at home where they could be reached by telephone. Other than that restriction, they were free to do whatever they chose so long as they were available to respond to telephone calls. During the existence of the 498 program, the PIRTs and ETs were paid one dollar per hour for each hour of home telephone duty, and generally the ETs were given fifteen minutes compensatory time off for each telephone call actually taken on the assumption that each telephone call required an average of fifteen minutes.

[73]*73The plaintiff class filed this action on March 22, 1985, seeking overtime compensation at the rate of one and one-half times their regular hourly rate of pay for each hour of home duty telephone time. Plaintiffs, in their original and amended petitions, alleged that the federal Fair Labor Standards Act (F.L.S.A.) applied as well as the Kansas statutes and regulations. Plaintiffs also asserted an additional theory of recovery based upon quantum meruit. Prior to trial, the court, ruled that the F.L.S.A. did not apply, and neither party has appealed from that determination. At oral argument before this court the parties conceded that the F.L.S.A. was not applicable to this action. However, both parties seek to rely upon federal cases and regulations under the F.L.S.A. as persuasive authority for their respective arguments before this court.

Originally this action was filed against both the KCC and the KDHE, but pursuant to additional legislative action the joint responsibility of the KDHE for the 498 program was transferred to the KCC, and the KDHE was therefore dismissed from the case on July 18, 1986. Thereafter, the KCC entered into a partial settlement agreement with plaintiffs, which ensured that the PIRTs received overtime compensation for the time spent responding to telephone calls. Neither party disputes the adequacy of the settlement, and this appeal does not question the rate of compensation to which plaintiffs were entitled for the time actually spent communicating by telephone with oil and gas operators. Essentially, the settlement agreement reflects the parties’ agreement that while actually responding to telephone calls from oil and gas operators, plaintiffs were “at work” as contemplated by the Kansas statutes and regulations. The issue in this appeal is whether the plaintiffs were working during those hours they were assigned to wait for telephone calls but were not actually responding to telephone calls on behalf of the State, and if so the appropriate amount of additional compensation, if any, due them.

The case was tried to the bench on September 30 and October 1, 1986. The sole issue at trial was whether any additional compensation was due for time spent waiting, while assigned to telephone duty, but not actually responding to a telephone contact. The plaintiffs’ theory was that the restrictions imposed on their activities were so great that they were deprived of the [74]*74use of the time for their own purposes, and hence were entitled to overtime compensation for the entire time they were assigned to home telephone duty. In response, the defendant KCC argued that plaintiffs were lawfully compensated pursuant to the regulation on standby compensation, K.A.R. 1-5-26, and that the time spent waiting for calls was not compensable at overtime rates, but rather at the rate of one dollar per hour as set forth in the regulation.

The trial court announced its decision from the bench on October 3, 1986, making numerous findings of fact and conclusions of law. The court held that K.A.R. 1-5-26, dealing with standby compensation, was not applicable to this case. Next, the court noted that K.S.A. 75-5505 and K.A.R. 1-5-24 require compensation at time and a half to State employees “who work more than 40 hours per week.” The court then held that plaintiffs performed “compensable work” during part of the time they were waiting for calls. Next, the court concluded that 25 percent of the on-call hours should be compensated as “work time” at overtime rates, and that the defendant should receive credit for amounts already paid pursuant to K.A.R. 1-5-26 and the settlement.

The plaintiffs appeal and the defendant cross-appeals. The case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). Additional facts will be stated as they become necessary to a determination of this appeal.

While various issues are raised by the appeal and cross-appeal, the determinative issue is whether K.A.R. 1-5-24 or K.A.R. 1-5-26, or neither of them, apply in arriving at the proper compensation to be paid the plaintiffs for their off-hours telephone duty.

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Hickey v. Kansas Corporation Comm'n
765 P.2d 1108 (Supreme Court of Kansas, 1988)

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Bluebook (online)
765 P.2d 1108, 244 Kan. 71, 29 Wage & Hour Cas. (BNA) 193, 1988 Kan. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickey-v-kansas-corporation-commn-kan-1988.