the Court with evidence that (1) there were no actual deductions or (2) the County reimbursed plaintiffs. If the proposed regulation were in effect today, it would be of no avail to the County. As a result, there has been no showing to support the stay.
Finally, the deduction requirement is only one of the factors in determining salaried status. As a result, even if the proposed regulation would apply, the County will still have failed to satisfy its burden of proof that the non-ADPO's are exempt from coverage under FLSA.
The County has not sustained its burden of showing that plaintiffs are paid on a salary basis. As a result, members of the plaintiff class that the County has sought to exclude are entitled to damages as provided in FLSA.
IT IS HEREBY ORDERED that plaintiffs' motions for partial summary judgment on the issue of damages are resolved as follows:
(a) Plaintiffs' motion that plaintiffs' receive damages from September 17, 1987, is GRANTED because the County willfully violated FLSA;
(b) Plaintiffs' motion for liquidated damages is GRANTED in an amount equal to the unpaid back-up duty pay for the entire damage period because the County failed both the subjective and objective tests;
(c) Defendant's motion for deductions from back-up duty pay for sleep time is DENIED because the principles of res judicata bar the County from relitigating this issue which was previously resolved by the Court in an order issued on April 23, 1990; and
(d) Defendant's motion that it be entitled to compensate plaintiffs with time off rather than money damages is DENIED because the statute does not contemplate anything other than monetary damages.
IT IS HEREBY FURTHER ORDERED that plaintiffs' motions for partial summary judgment on the issue of exemption from FLSA is GRANTED because:
(a) the County has failed to show that any of the plaintiffs are exempt from coverage under FLSA;
(b) the new regulation is invalid because there was not a notice and comment period; and
(c) the stay requested by the County is denied because the County has not demonstrated that the proposed regulation will result in a different outcome.
IT IS SO ORDERED.
February 10, 1992
GORDON THOMPSON, JR.
United States District Judge