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February 28, 1992

GREGORY BERRY et al., Plaintiffs,
SONOMA COUNTY et al., Defendants


The opinion of the court was delivered by: F. STEELE LANGFORD

This matter was tried before the court November 12-16, 1991. Appearing for plaintiffs was W. David Holsberry, Esq. of Davis, Cowell and Bowe, San Francisco. Appearing for defendants was Patrick G. Grattan, Esq. and Steven C. Mitchell, Esq. of Geary, Shea, O'Donnell and Grattan, Santa Rosa. Both sides presented exhibits and testimony of witnesses. After the trial concluded, counsel submitted post-trial briefs and rebuttal briefs and proposed findings of fact and conclusions of law. The case was submitted December 20, 1991.

 The evidence having been considered and good cause appearing, this court hereby finds for plaintiffs. Plaintiffs shall submit a cost bill and declarations supporting an award of attorney's fees. The court does not award liquidated damages.


 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. Plaintiffs' claim for compensatory damages totals over $ 200,000. Liquidated damages would bring the amount claimed to over $ 400,000. 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 Board of Supervisors; Richard Michaelson, Sonoma County Sheriff, and Janet Nicholas, James Harberson, Tim Smithy, Nick Esposti, and Ernest Carpenter, members of the Board of Supervisors.

 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 were covered by the coroners on an on-call basis. These 71 hours were divided among the then-current coroners as follows: Berry worked 30 hours per week on-call, McAllister worked 20, and Oravetz worked 21. *fn2"

 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 eighty-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 specified compensation for each hour spent on-call, but not working.

 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, in the same way that most investigations are handled on-duty, as well. 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," i.e. report in person 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 only for on-call hours actually spent responding to calls, and that, in fact, plaintiffs are compensated for being on-call by the 5% premium pay negotiated by the parties.


 The District Court denied the parties' cross-motions for summary judgment, finding disputed facts relating to the flexibility with which the coroners can contend with their on-call responsibilities, i.e.: To what extent the coroners can and do engage in personal pursuits during on-call hours; the amount of time coroners have to respond to calls; the ease with which they can trade on-call responsibilities; whether they may transport family members in their county vehicles, or whether family members must travel in separate cars; whether they must remain in Sonoma County; the number and frequency of miscellaneous work-related calls they receive which are not reflected in the Coroner's Office statistics; whether plaintiffs' on-call duties are similar to and as demanding as their regular duties; the frequency with which they are "called back" to a death site or to the Coroner's Office.

 The court also found disputed material issues relating to damages. Assuming that the FLSA requires defendants to pay plaintiffs backpay for all on-call time, the parties dispute whether defendants "wilfully" violated the Act and whether their purported violation was committed in bad faith. The statute of limitations for "wilful" violations of the Act is three years, but only two years for non-wilful violations. 29 U.S.C. § 255(a). In addition to backpay, employers in violation of the FLSA must pay liquidated damages in an amount equal to the unpaid overtime compensation. 29 U.S.C. § 216(b), unless their violation of the Act was in "good faith." 29 U.S.C. § 259-260.

 The District Court found genuine disputed issues related to defendants' wilfulness and bad faith in allegedly violating the FLSA.

 With both sides ready for trial, they were referred by the District Court to a magistrate judge, and consented to proceed before the magistrate judge.

 The case was tried before the court for five days, during which time the parties presented exhibits and the testimony of witnesses.


 The Fair Labor Standards Act (hereafter "FLSA") (29 U.S.C. § 207) provides federal standards for the protection of workers, including the minimum wage, maximum hours, investigations, inspections, homework regulations, child labor, exemptions from required standards, student and handicapped workers and overtime compensation.


 Guidance on the issue of when an employee should be compensated for on-call time is provided by 29 C.F.R. § 785.17 which provides:

 An employee who is required to remain on-call on the employer's premises or so close thereto that it cannot use the time effectively for its own purposes is working while "on-call." An employee who is not required to remain on the employer's premises but merely required to leave word at his home or with company officials where he may be reached is not working while on-call.

 Further guidance is set forth in 5 C.F.R. § 551.431 (1989) which states:

 (1) The employee is restricted to an agency's premises, or so close thereto that the employees cannot use the time effectively for his or her own purposes; or

 (2) The employee, although not restricted to the agency's premises:

 (i) Is restricted to his or her living quarters or designated post of duty;

 (ii) Has his or her activities substantially limited; and

 (iii) Is required to remain in a state of readiness to perform work.

 (b) An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if:

 (1) The employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius, or;

 (2) The employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person.

 and furthermore, 29 C.F.R. § 553.221(d) (1989) provides, in pertinent part:

 . . .where the conditions placed on the employee's activities are so restricted that the employee cannot use the time effectively for personal pursuits, such time spent on-call is compensable.


 The United States Supreme Court held in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), that the FLSA applied to local government entities. In general, the FLSA requires that employers pay overtime compensation to employees for hours worked in excess of forty hours per work week. 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).

 No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if -

 (1) In a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

 (2) In the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty in which the aggregate exceed the number of hours which bears the same ration to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in Clause (B) of paragraph (1) bears to 28 days,

 compensation at a rate not less than one and one-half times the regular rate at which he is employed.


 The issue of overtime compensation for on-call work is a matter of first impression in this District and has not been considered comprehensively in the U.S. Court of Appeals for the Ninth Circuit. In addition, plaintiffs raise two issues which are apparently unique in this area of inquiry: the issue of work-related telephone interruptions during on-call time and the issue of the unpredictability of calls, either calls requiring a telephone response or calls requiring an in-person response.

 After considering the record, the pleadings and the applicable law, the court has determined the following to be the critical factors in this case:

 2) Required response time;

 3) Frequency of calls during on-call hours;

 4) Number and frequency of miscellaneous work-related calls received which are not reflected in the Coroner's Office statistics;

 5) Geographic restrictions

 6) Use of a pager;

 7) Ease with which on-call employees can trade on-call responsibilities;

 8) Extent of personal activities engaged in during on-call time;

 9) Whether coroner investigators may transport family members in their county vehicles, or whether family members must travel in separate cars;

 10) Existence and provisions of any agreement between the parties governing on-call work;

 11) County's wilfulness or bad faith in violating the FLSA;



 If plaintiffs' on-call duties are similar to and as demanding as their regular duties, then this, along with other factors, would tend to show restrictions on their ability to pursue personal activities and that their on-call time is compensable. Townsend v. Mercy Hosp. of Pittsburgh, 862 F.2d 1009 (3rd Cir. 1988)

 In the Townsend case, plaintiffs were operating room personnel who worked standby shifts in addition to their regular shifts. They were paid at their regular overtime rate for hours actually worked, that is, if they were called in to assist at surgery. They were paid minimum wage at time and a half for the hours spent on standby. They were required to be present on the employer's premises but they were permitted to read, watch television and sleep while on-call. The court held that they were only working at their regular job while they were assisting in the operating room and that their employer could compensate them at the lower rate of minimum wage for standby time. The court found that the actual work done on-call was substantially the same as work done during regular hours. Id. at 1012

 Plaintiffs testified to the components of a death investigation into the circumstances, cause and manner of death, as required by § 27491 of the California Government Code. Coroners arrange for identification of the body, notify family members of the death, refer them for appropriate social services, contact transplant services regarding potential organ donations, and inventory and secure property, until it may be released to a responsible person. Coroners also secure a copy of the decedent's will and sometimes file it with the County Clerk. They also cooperate with other public officers, including the Public Guardian, and other health and law enforcement personnel who may be involved in the investigation. The coroner arranges for an autopsy in cases of suspected homicide, suicide, traffic death or medically unattended death. The coroner prepares a report, which varies in length. A typical investigation may be concluded in fifteen minutes or may require the coroner's time over several months until it is concluded, and the coroner signs the death certificate.

 The deputy coroner also prepares a brief preliminary report on a death which is not reportable under the Government Code, i.e. the death of someone who has been under a physician's care within the past twenty days, or in a hospital within the past twenty-four hours, who dies of natural causes. In such a case, called a "no case," the attending physician signs the death certificate. (Pl. Ex. 1 - Policy and Procedure Manual, Pl. Ex. 2 - Coroner Office Protocol, Testimony of Oravetz)

 Plaintiffs here claim that they conduct on-call investigations as thoroughly and completely as on-duty investigations. On-call time and on-duty time are, for all practical purposes, interchangeable. When an on-duty deputy was absent either for a day or for a lengthy period, his shift was simply converted to on-call and handled by the remaining deputies. In this regard, a shift on which all hours would normally be compensable, would be handled on an on-call basis. Also undisputed was the fact that deputies occasionally worked at home while on duty and occasionally worked at the office while on-call, sometimes even sleeping there. Generally, however, on-call investigations would be handled from outside the Coroner's Office, most often from the deputy coroners' homes, while on-duty investigations were handled from the Coroner's Office.

 The testimony was uniform that in comparing an on-call investigation with an on-duty investigation the deputy had the same responsibility and discretion, observed the same response time, and conducted investigations to the fullest extent possible at the time the death report was received.

 As with on-duty investigations, a majority of on-call investigations could be conducted by telephone and some required response to a death scene. Moreover, all other coroner responsibilities were sometimes conducted on-call: securing property, notifying relatives, arranging organ donations, releasing bodies, and performing other morgue responsibilities.

 Deputies called hospitals and nursing homes, relatives, funeral homes and anyone else necessary to secure property and the body of the deceased. Although some offices could not be contacted outside the ordinary business day, most of the entities the deputies dealt with were also on a twenty-four hour a day schedule or else had to be contacted, regardless of the hour (e.g. relatives).

 The court concludes that on-call investigations were substantially the same as on-duty investigations, with the exception that on-call investigations were usually handled from outside the Coroner's Office, most often the coroner's home, while on-duty investigations were handled from the Coroner's Office. Both on-duty investigations and on-call investigations were most often conducted by telephone.


 The response time within which an on-call employee must report back to work may so restrict an employee that the time spent on-call is for the benefit of the employer and therefor compensable. Renfro v. Emporia, 729 F. Supp. 747 at 748-49 (D.Kansas 1990); *fn4" Dept. of Labor, Wage and Hour Div., Ltr. Rul. No. 1695 (Nov. 15, 1988); Dept. of Labor, Wage and Hour Div., Ltr. Rul. (No Number Assigned) (March 11, 1987)

 In the Renfro case, city firefighters, in addition to their on-duty schedule, also appeared on a mandatory callback list for each 24-hour period following a regularly scheduled tour of duty. During this on-call period, the firefighters were not required to remain on the stationhouse premises. However, they were required to carry pagers and return to work within twenty minutes if called or be subject to discipline. Firefighters were paid overtime only when they were actually called back to duty and not for the time spent on-call.

 Defendants claim that the plaintiffs in this case have no required response time and therefore are not in the same position ...

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