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BERRY v. COUNTY OF SONOMA

March 28, 1991

GREGORY BERRY, PHILLIP MARCUS, DENNIS McALLISTER, FRANCIS ORAVETZ, Plaintiffs,
v.
COUNTY OF SONOMA, SONOMA COUNTY SHERIFF'S DEPARTMENT, SONOMA COUNTY BOARD OF SUPERVISORS, JANET NICHOLAS, JAMES HARBERSON, TIME SMITH, NICK ESPOSTI, ERNEST CARPENTER, RICHARD MICHAELSON, Defendants



The opinion of the court was delivered by: WEIGEL

 STANLEY A. WEIGEL, UNITED STATES DISTRICT JUDGE

 The question presented in this case is whether the Fair Labor Standards Act of 1938 ("the FLSA"), 29 U.S.C. §§ 201 et seq., requires defendants to pay overtime compensation to plaintiffs for each hour spent "on-call" from December 1986 to the present. This action was brought by Gregory Berry, Philip Marcus, Dennis McAllister, and Francis Oravetz, current and former deputy coroners employed by the Sonoma County Sheriff's Department. Defendants are Sonoma County; Sonoma County Sheriff's Department; Sonoma County Board of Supervisors; Richard Michaelson, Sonoma County Sheriff, and Janet Nicholas, James Harberson, Tim Smith, Nick Esposti, and Ernest Carpenter, members of the Board of Supervisors. The parties have filed cross-motions for summary judgment.

 Both sides have submitted a mountain of exhibits, declarations, and deposition excerpts in support of their respective motions, many of which are tangential, collateral, and duplicative. Due to the substantial factual record before the Court, some background is in order here.

 I. Background

 The United States Supreme Court held in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), that the FLSA applied to local governmental entities. In general, the FLSA requires that employers pay overtime compensation to employees for hours worked in excess of forty hours per workweek. 29 U.S.C. § 207(a). Because of their peculiar work schedules, however, the FLSA has established a special set of rules for fire protection and law enforcement employees. See 29 U.S.C. § 207(k).

 Plaintiffs are "law enforcement" employees of the Sonoma County Sheriff's Department. *fn1" At all times relevant to this litigation, the Sheriff's Department has employed only three deputy coroners at any one time. Although the Coroner's Office's regular business hours are Monday through Friday, 8 a.m. to 5 p.m., coroners are required by California statute to respond to certain reported deaths twenty-four hours a day, seven days a week. See Cal. Gov't Code §§ 27491 et seq.; Cal. Health & Safety Code §§ 10250 et seq.

 Pursuant to 29 U.S.C. § 207(k), the Sonoma County Sheriff's Department has established a fourteen-day work period. In each work period, plaintiffs are regularly scheduled to work eight ten-hour shifts, for a total of eighty hours. In addition, the coroners are required as a condition of their employment to work many extra hours on an "on-call" basis to fulfill the Coroner's Office's statutory obligation to be available at all times. One coroner is always on-call during after-business hours. For example, under the schedule in place since October 1990, approximately 71 hours per week are covered by the coroners on an on-call basis. These 71 hours are divided among the current coroners as follows: Mr. Berry works 30 hours per week on-call, Mr. McAllister works 20, and Mr. Oravetz works 21. *fn2" Prior to October 1990, approximately 60 hours per week were covered on an on-call basis.

 In accordance with the FLSA, the County pays the coroners overtime compensation, at a rate of one and one-half times their regular pay, for all hours worked in excess of eight-six hours per work period. See 29 U.S.C. § 207(k); 29 C.F.R. § 553.230(c). Plaintiffs receive overtime pay for all hours actually worked during their on-call time, but receive no compensation for hours spent on-call, but not working.

 As discussed below, the precise manner in which the coroners are required to conduct their duties while on-call is disputed. It is safe to say that when certain categories of deaths are reported to the Coroner's Office after hours, the Sheriff's Department dispatcher contacts the on-call deputy coroner. *fn3" That coroner must be available by pager, telephone, or the two-way radio in the coroner's county vehicle to respond to any such inquiry or death report. The coroner is often able to answer these inquiries and handle investigations over the telephone. He is guaranteed a minimum of one hour's overtime compensation for on-call time spent on the telephone. Some reports require the coroner to "call back" to the Coroner's Office in Santa Rosa or to the death scene itself. Although the parties dispute the degree of flexibility the coroners have to deal with calls received during on-call hours, at a minimum it can be said that the frequency and unpredictability of these calls circumscribes the coroners' ability to participate in personal activities and often disrupts their sleep.

 Plaintiffs contend that because of the excessive restrictions on their freedom to engage in personal pursuits during their on-call hours, these hours count as "hours worked" under the FLSA. Accordingly, they urge the Court to award them backpay for all hours worked on-call, liquidated damages, and attorney's fees. Defendants counter that under the circumstances of this case, plaintiffs are entitled to compensation solely for on-call hours actually spent responding to calls.

 II. Discussion

 A district court may grant summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(c). Whether there is any genuine dispute as to any material fact in the instant action presents a very close question. After reviewing hundreds of pages of evidence, the Court concludes that summary judgment is not appropriate because the parties dispute several facts regarding the coroners' responsibilities during their on-call tours of duty and the attendant restrictions placed on their ability to engage in personal activities during these hours.

 In interpreting the FLSA, the United States Supreme Court has long held that waiting time, standby time, and on-call time may be compensable under certain circumstances. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 89 L. Ed. 124, 65 S. Ct. 161 (1944); Armour & Co. v. Wantock, 323 U.S. 126, 89 L. Ed. 118, 65 S. Ct. 165 (1944). The test this Court must apply in ascertaining whether on-call time is compensable under the FLSA is "whether time is spent predominantly for the employer's benefit or for the employee's." Armour, 323 U.S. at 133. This is a question "dependent upon all the circumstances of the case." Id. In ...


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