South Florida Beverage Corp. v. Figueredo

409 So. 2d 490, 25 Wage & Hour Cas. (BNA) 600, 1981 Fla. App. LEXIS 22020
CourtDistrict Court of Appeal of Florida
DecidedDecember 22, 1981
Docket80-2172
StatusPublished
Cited by13 cases

This text of 409 So. 2d 490 (South Florida Beverage Corp. v. Figueredo) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Florida Beverage Corp. v. Figueredo, 409 So. 2d 490, 25 Wage & Hour Cas. (BNA) 600, 1981 Fla. App. LEXIS 22020 (Fla. Ct. App. 1981).

Opinion

409 So.2d 490 (1981)

SOUTH FLORIDA BEVERAGE CORPORATION, Appellant,
v.
Efrain FIGUEREDO, et al., Appellees.

No. 80-2172.

District Court of Appeal of Florida, Third District.

December 22, 1981.
Rehearing Denied February 9, 1982.

*491 Hogg, Allen, Ryce, Norton & Blue and W. Reynolds Allen and Lewis E. Shelley, Coral Gables, for appellant.

Kanner, Brown & Lambert and Richard Kanner, Miami, for appellees.

Before BARKDULL, SCHWARTZ and NESBITT, JJ.

SCHWARTZ, Judge.

The South Florida Beverage Corporation appeals from a non-final order, rendered after a bench trial, which held it liable to the plaintiffs, 63 of its present and former employees, for failure to make overtime compensation payments allegedly required by the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.[1] Because we find that the appellant was, as a matter of law, in full compliance with the terms of the statute, we reverse the order under review and direct the dismissal of the complaint.

South Florida does business as the Pepsi-Cola Bottlers of Miami; the plaintiffs worked for the company as route drivers between June 8, 1976 and March 2, 1979. This dispute concerns the determination of the employee-plaintiffs' "regular rate" of pay during that period under the requirement of § 207(a)(1) of the FLSA that

no employer shall employ any of his employees ... for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.[[2]]

More specifically, the issue is whether the regular rate is correctly computed by dividing each employee's stipulated weekly salary by forty — so that, for example, the "regular rate" of a driver employed for $240.00 per week who worked forty-eight hours would be $6.00, requiring an additional $9.00 to be paid for each of the eight hours above forty, or $72.00; or by dividing the salary by the hours actually worked during the week. In the hypothetical situation this would yield a "regular rate" of $5.00 and require an additional payment of half of that for each extra hour over forty hours, *492 or a total of $20.00. The latter method was the one actually employed by Pepsi, and accepted by the drivers and their union without complaint for virtually[3] the whole period in question. Based, however, almost entirely upon a single clause in their collective bargaining agreement,[4] the plaintiffs argued and the trial judge ruled that the former, or the fixed rate-fixed hours method, was required by the FLSA. Because the employees were, in fact, paid on a flatsum-per-day-regardless-of-hours-worked basis which rendered the method of computation of overtime adopted by the parties the appropriate one under the applicable law, we hold that this conclusion was wrong.

The polestar in the determination of the "regular rate" question is the reality of the particular situation, that is, what hours and methods of pay were adopted "in actual fact" by the employer and employee. In an early and often-repeated interpretation of this provision of the FLSA, the Supreme Court so held in Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705, 1710 (1945):

The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary `regular rate' in the wage contracts.

Accord, e.g., Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 461, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948); 149 Madison Avenue Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432 (1947). In this case, the "actual facts" of the wage-and-hour circumstances of the Pepsi-Cola drivers appear with crystal clarity. Because of the wide disparities in, among other things, their daily duties and the lengths of their routes, the time required of these employees varied considerably from person to person, week to week, and day to day. The parties adopted a modus operandi to reflect and compensate for these fluctuations. Under it, a driver received a guaranteed payment of one-fifth of his designated weekly salary for each weekday he reported for work no matter how many hours he worked on that particular day. If he worked for more than forty hours during the five day workweek,[5] the *493 overtime required by the FLSA was determined, as has been indicated, by dividing the designated weekly salary by the hours worked during that week and adding fifty percent of the result for each of the hours over forty.[6] The following two actual examples illustrate the process:

  1. Plaintiff "A" — contractual salary of
     $220.00 per week.
                              Hours worked
  Monday                       8.22
  Wednesday                    7.12
  Thursday                     6.00
  Friday                       6.44
  __________________________________
  Actual hours                27.78
  Actual pay:                  4 days
                       x $44.00 per day  (1/5 of $220.00)
                          _____________
                         $176.00
  2. Plaintiff "B" — contractual salary of
     $244.00 per week.
                              Hours worked
  Monday                       8.95
  Tuesday                      8.20
  Wednesday                    9.42
  Thursday                     7.88
  Friday                       8.76
  __________________________________
  Actual hours                43.21
  Actual pay:                  5 days
                     x $ 48.80 (1/5 of $244.00)
                        ______
                       $244.00
    Plus:     $244.00 ÷ 43.21 = $5.65 per hour
              $  5.65 x 1/2 x 3.21 overtime hours
               _______
              $  9.05
    Total:    $253.05

It is abundantly clear that this method of computing and paying overtime was in full accord with the requirements of § 207(a), as authoritatively implemented by the relevant regulations of the Wage and Hour Division, Employment Standards Administration of the U.S. Labor Department and applied in the controlling decisions. The situation involved here is precisely treated in 29 C.F.R. § 778.112:

If the employee is paid a flat sum for a day's work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked.

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409 So. 2d 490, 25 Wage & Hour Cas. (BNA) 600, 1981 Fla. App. LEXIS 22020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-florida-beverage-corp-v-figueredo-fladistctapp-1981.