(City & County of San Francisco Super. Ct. No. CGC-08-471913). Trial Judge: Honorable Ronald Evans Quidachay.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
We are asked to determine whether, in the absence of a collective bargaining agreement, Government Code section 19851 mandates the payment of overtime compensation to correctional peace officers who work more than eight hours per day or 40 hours per week.*fn1 The trial court held that it does not. We agree and affirm the judgment.
Section 19851 generally provides that, unless state employees are subject to a contrary memorandum of understanding (MOU),*fn2 "It is the policy of the state that the workweek of the state employee shall be 40 hours, and the workday of state employees eight hours, except that workweeks and workdays of a different number of hours may be established in order to meet the varying needs of the different state agencies. It is the policy of the state to avoid the necessity for overtime work whenever possible. This policy does not restrict the extension of regular working-hour schedules on an overtime basis in those activities and agencies where it is necessary to carry on the state business properly during a manpower shortage." (§ 19851, subd. (a).)
Plaintiff/appellant California Correctional Peace Officers' Association (CCPOA) is the exclusive recognized employee organization representing approximately 30,000 state employees in State Bargaining Unit Six (Unit Six).*fn3 Defendant/respondent State of California (State), is the employer, and the California Department of Personnel Administration (DPA), is the Governor's representative and administrator of wages for state employees.*fn4 In 2007, collective bargaining efforts to negotiate a new MOU failed and an impasse was declared by the state Public Employment Relations Board. Subsequent mediation was also unsuccessful, and on September 18, pursuant to section 3517.8, subdivision (b),*fn5 the DPA then implemented its last, best, and final offer (LBFO). The LBFO continued the same schedule that was contained in a preceding 2001-2006 MOU--a regular work schedule for most Unit Six employees of up to 164 hours in a 28-day period. Under the LBFO terms, "overtime" for purposes of additional compensation is defined as "any hours worked in excess of one hundred sixty-four (164) hours in a twenty-eight (28) day work period."
The LBFO, and as we discuss post, three predecessor MOU's, distinguished overtime eligibility between those categories of employees who are "7k exempt" and those who are not. Under the federal Fair Labor Standards Act (FLSA; 29 U.S.C. § 201 et seq.), employees are generally permitted to work a maximum of 40 hours per workweek "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." (29 U.S.C. § 207(a)(1).) However, section 207(k) (section 7(k)) of the FLSA provides an exemption for fire protection and law enforcement personnel. (29 U.S.C. § 207(k).) Public agencies do not violate the normal 40-hour overtime standard of the FLSA, with respect to law enforcement personnel (including security personnel in correctional institutions), who do not exceed 171 hours for a work period of 28 days. (29 C.F.R. § 553.230(b).) For any work in excess of those hours, the employee must be compensated "at a rate not less than one and one-half times the regular rate at which he is employed." (29 U.S.C. § 207(k).)
In 2009, Kurt Stoetzl, a CCPOA member, and the CCPOA filed a first amended complaint seeking injunctive relief and backpay. In their first amended complaint, plaintiffs alleged that Unit Six employees routinely worked eight hours and 12 minutes per day, or a 41-hour workweek. Plaintiffs further alleged that defendants had a statutory obligation, under section 19851, to compensate Unit Six employees for time worked in excess of eight hours per day or 40 hours per week at an overtime rate, and failed to do so.
Defendants answered, denying the allegations and raising a number of affirmative defenses. The parties then filed cross-motions for summary judgment or summary adjudication. CCPOA argued that "Defendants were and are duty-bound, pursuant to . . . section 19851, to pay . . . employees in [Unit Six] . . . premium overtime wages for all hours worked in excess of 8 per day and 40 per week." Defendants argued that "section 19851(a) does not impose a mandatory duty on the State to pay overtime simply because a state employee works more than an 8-hour day or 40-hour week."
In support of their motions, the parties presented evidence of their collective bargaining history. Between 1995 and 1998, CCPOA had no MOU with the state. In 1998, CCPOA and defendants agreed to a one-year MOU. Under that MOU, the parties agreed to operate under the 7(k) exemption to the FLSA, with the regular work schedule defined as 168 hours in a 28-day work period. The same work schedule was agreed to in a 1999-2001 MOU. The 2001-2006 MOU established a work schedule of 168 hours in a recurring 28-day period up to July 1, 2004, and of 164 hours in a recurring 28-day period following July 1, 2004. Accordingly, overtime was only paid for work exceeding 168 hours in a 28-day period under the first two MOUs, and for work exceeding 164 hours in a 28-day period under the 2001-2006 MOU.*fn6
The trial court granted defendants' motion for summary judgment. The order states: "the [c]court finds no triable issue of material fact on the sole claim raised by Plaintiffs' [sic] in their First Amended Complaint namely, whether . . . section 19851(a) imposes a mandatory legal duty, under the circumstances of this case, to pay overtime wages. On this issue, the [c]court finds in favor of [d]efendants as a matter of law." Accordingly, the court entered judgment in favor of defendants. Plaintiffs filed a timely notice of appeal from the judgment.
Plaintiffs contend that section 19851 requires the payment of overtime compensation to designated CCPOA employees who, since September 18, 2007, have been working a 41-hour workweek in the absence of a MOU. Defendants concede that section 19851 generally becomes operative in the absence of a MOU (§ 19851, subd. (b)), but argue that the statute nevertheless does not mandate the payment of overtime wages to Unit Six employees subject to a section 7(k) schedule. Under defendants' interpretation, the Government Code only requires compliance with the FLSA's overtime requirements for Unit Six employees. Specifically, defendants argue: "section 7(k) [of the FLSA] permits public agencies to employ law enforcement personnel, including security personnel, . . . such as [Unit Six] personnel, for up to 171 hours in a 28-day period without incurring overtime liability regardless of the number of hours an employee may work within any given workday or workweek."
Thus, a narrow question, and one apparently of first impression, is presented. Under the California statutory scheme and in the absence of an operative MOU, does section 19851 require the payment of overtime compensation anytime a CCPOA employee works more than eight hours in a day or 40 hours in a week, or do defendants need only demonstrate compliance with the overtime requirements ...