United States v. Karla Foster (1994)

No. 99-150, 99 Stat. 787, 788-89). 55 "Under the FLSA, all employees must ordinarily be paid one and one-half times their normal hourly wage for all hours exceeding forty hours worked in one week." Barner v. City of Novato, 17 F.3d 1256, 1259 (9th Cir. 1994) (citing 29 U.S.C.

Id. at 1262-63.

The first part is a ‘duties test.’ The second part is a ‘salary test.’ ” Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994) (citations omitted).

The first part is a ‘duties test.’ The second part is a ‘salary test.’ ” Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994) (citations omitted).

“Specifically, and for our purposes, the [employee] must (1) be paid on a salary basis (2) of not less than $250 per week (3) for the primary duty of managing a recognized department or subdivision and (4) regularly direct two or more employees.” Barner v. City of Novato, 17 F.3d 1256, 1260 (9th Cir.1994).

Barner v. City of Novato, 17 F.3d 1256, 1258 (9th Cir.1994).

When the issue of deductions for partial-day absences from leave time was squarely presented to this court in Barner, which involved city employees, we explicitly rejected the Abshire footnote, holding that “amount” and “compensation” in the regulation refers to salary and therefore “a reduction in the paid leave time does not affect the Plaintiffs’ status as salaried employees.” Barn er, 17 F.3d at 1261-62.

Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994).

Employees fit within the overtime-exempt category for administrative or executive employees where they meet both of two tests: a "duties test" and a "salary test." Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994). 9 In this case the district court concluded that the Fire Chiefs were entitled to overtime compensation solely because they did not meet the "salary test." The district court did not reach the issue of the "duties test." We conclude that the district …

See Balgowan v. State of New Jersey, --- F.3d ---- (3d Cir.1996); Carpenter v. City & County of Denver, 82 F.3d 353, 359 (10th Cir.1996); Bankston v. State of Illinois, 60 F.3d 1249, 1253 (7th Cir.1995); Barner v. City of Novato, 17 F.3d 1256, 1262 (9th Cir.1994); Kinney v. District of Columbia, 994 F.2d 6, 11 (D.C.Cir.1993); Michigan Association of Governmental Employees v. Michigan Department of Corrections, 992 F.2d 82, 86 (6th Cir.1993).

Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.1994).

The first part of this test is a "duties test" and the second is a "salary test." Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994).

Thus, through September 6, 1991, for public sector employees to qualify for the executive and administrative exemption to the FLSA, they need only have satisfied the duties test, see Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994) (applying duties test).

Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994).

Plaintiffs’ status as salaried employee[s].” Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.1994).

The district court lastly asks whether accrued leave is "salary" and cites to a comparison between two Ninth Circuit cases, Abshire, 908 F.2d at 487 n. 3 and Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir. 1994).

The district court lastly asks whether accrued leave is “salary” and cites to a comparison between two Ninth Circuit cases, Abshire, 908 F.2d at 487 n.3 and Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir. 1994).

See, e.g., Cooke v. General Dynamics Corp., 993 F.Supp. 50, 53 (D.Conn.1997); Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.1994); Kuchinskas, 840 F.Supp. at 1556 ; cf. York v. City of Wichita Falls, 944 F.2d 236, 242 (5th Cir.1991).

A reduction in paid leave time does not affect an employee’s status as a salaried employee.”); Barner v. City of Novato, 17 F.3d 1256 , 1261−62 (9th Cir. 1994) (“Thus a reduction in the paid leave time does not affect the Plaintiffs’ status as salaried employees.”); York v. City of Wichita Falls, Tex., 944 F.2d 236, 242 (5th Cir. 1991) (deductions from “sick or vacation leave on an hourly basis . . . do not establish that a person is paid 13 The court is cognizant of the fac…

Barner v. City of Novato, 17 F.3d 1256, 1260 (9th Cir.1994); 29 C.F.R. § 541.100 (a).

Although the salary basis regulation prohibits deductions from an employee's salary for personal absences of less than a day, the regulation does not prohibit an employer from requiring an employee to make up the time he misses."); Schaefer v. Indiana Michigan Power Co., 358 F.3d 394, 400 (6th Cir.2004) ("Exempt status, however, is only affected by monetary deductions for work absences and not by non-monetary deductions from fringe benefits such as personal or sick time."); …

Id. at 1260-61. 80 .

See Boykin v. Boeing Co., 128 F.3d 1279, 1281-82 (9th Cir.1997) (“The DOL has unequivocally and consistently declared that additional compensation in the form of hourly overtime payment does not defeat exempt status under the salary-basis test.”); Barrier v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994) (deductions of less than one day from paid absence reserves do not constitute deductions from salary and, therefore, do not jeopardize the exemption).

Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994) (citations and footnotes omitted).

Barrier v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.1994).

See Auer v. Robbins, 519 U.S. 452 , —, 117 S.Ct. 905, 908 , 137 L.Ed.2d 79, 86 (1997); Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994).

Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir.1994) (quoting Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994)).

Union Local 102 v. San Diego, 35 F.3d 483, 486 (9th Cir.1994) (quoting Ba rner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994)). 1.

Cf. Barrier v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994) (holding that a reduction in paid leave time for partial day absences does not defeat salaried status); Kuchinskas v. Broward Cty., 840 F.Supp. 1548, 1555-56 (S.D.Fla.1993) (holding that reducing leave banks for partial day absences, requiring employees to keep time sheets, basing salary on 2,080 hours per year, inter alia, did not negate county employees’ status as salaried employees and convert them into h…

See Barner v. City of Novato , 17 F.3d 1256, 1260-62 (9th Cir. 1994); Wainscoat v. Reynolds Elec. & Eng'g.

See Barner v. City of Novato, 17 F.3d 1256, 1260-62 (9th Cir.1994); Wainscoat v. Reynolds Elec. & Eng’g.

See Barner v. City of Novato, 17 F.3d 1256, 1258 (9th Cir.1994). 1.

See Barner v. City of Novato, 17 F.3d 1256, 1258 (9th Cir.1994).

See, e.g., Barner v. City of Novato, 17 F.3d 1256 (9th Cir.1994); McGuire v. City of Portland, Oregon, 91 F.3d 1293 (9th Cir.1996) (filed this day).

See Barrier v. City of Novato, 17 F.3d 1256 , 1259-60 (9th Cir.1994).

See Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994). 16 Generally, an employer cannot show that an employee is exempt if the employer docks the employee's pay for partial day absences, violations of rules other than significant safety rules, and other barometers of the quantity or quality of the employee's work.

See Abshire v. County of Kern, 908 F.2d 483, 487 (9th Cir.1990) (holding that the proper inquiry is not whether deductions were actually made, but rather whether an employee's pay was "subject to" such a deduction), cert. denied, 498 U.S. 1068 , 111 S.Ct. 785 , 112 L.Ed.2d 848 (1991) Our recent opinion in Barner v. City of Novato, 17 F.3d 1256 (9th Cir.1994), is not to the contrary.

See United States v. Foster, 985 F.2d 466, 407 (9th Cir.), partial reh'g granted on other grounds, 995 F.2d 881 (9th Cir.1993), amended, 17 F.3d 1256 (9th Cir.1994). 6 Next, Prudhomme contends that trial court should have given him a downward departure for mitigating circumstances.

See Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994); York v. City of Wichita Falls, Tex., 944 F.2d 236, 242 (5th Cir.1991); Caperci v. Rite Aid Corp., 43 F.Supp.2d 83, 92-93 (D.Mass.1999) (surveying cases); Aiken v. County of Hampton, S.C., 977 F.Supp. 390, 396-97 (D.S.C.1997) (“A reduction in paid leave time does not affect an employee’s status *290 as a salaried employee.”), aff'd, 172 F.3d 43 (4th Cir.1998) (Table case); Yuen v. U.S. Asia Commercial Dev.

Other than in these specific situations, employees paid on a "salary basis" may not be subject to deductions. [48] Drinkwitz, 140 Wash.2d at 304 , 996 P.2d 582 ; see also 29 C.F.R. § 541.118 (a) (1975). [49] Barner v. City of Novato, 17 F.3d 1256, 1262 (9th Cir.1994). [50] Drinkwitz, 140 Wash.2d at 304 , 996 P.2d 582 (quoting Auer v. Robbins, 519 U.S. 452, 461 , 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997)). [51] Brief of Resp't at 46. [52] Clawson, 109 Wash.App. at 386 , 35 P.3d 1…

See Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994).

See, also, Barner v. City of Novato (C.A.9, 1994), 17 F.3d 1256 , 1259-1260 . 18 See Section 541.118(a), Title 29, C.F.R.; Michigan Assn. of Governmental Emp. v. Michigan Dept. of Corr., supra, at 83. 19 See Section 541.118(a), Title 29, C.F.R. 20 See id. at 84 . 21 See Spralding v. City of Tulsa (C.A. 10, 1996), 95 F.3d 1492 , 1496 ; Service Emp.

See Barner v. City of Novato, 17 F.3d 1256, 1259-60 (9th Cir.1994).

Compare Thomas v. County of Fairfax, 758 F.Supp. 353, 366 (E.D.Va.1991) (stat *397 ing that while the concept of salary, strictly construed, may not include leave, the docking of one hour’s .leave affronts the concept of a salaried executive) with Barner v. City of Novato, 17 F.3d 1256 (9th Cir.1994) (determining that reduction in leave allowances for partial day absences does not affect a salaried employee’s status) and International Ass’n of Fire Fighters, Alexandria Local…

See Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.1994) (reduction in paid leave is not deduction of salary that defeats FLSA exemption for "salary basis” employees); Fire Fighters Local 2141 v. City of Alexandria, Va., 720 F.Supp. 1230, 1232 (E.D.Va.1989), aff'd, 912 F.2d 463 (4th Cir.1990) (TABLE) (docking of personal or sick leave time is not a deduction of salary that defeats FLSA exemption for "salary basis” employees). 5 .

See also Barner v. City of Novato, 17 F.3d 1256, 1261-62 (9th Cir.1994) (holding that a reduction in paid leave time for partial day absences does not defeat salaried status); Kuchinskas v. Broward Cty., 840 F.Supp. 1548, 1555-56 (S.D.Fla.1993), aff'd, 86 F.3d 1168 (11th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1080 , 137 L.Ed.2d 215 (1997) (holding that reducing leave banks for partial day absences, requiring employees to keep time sheets, basing salary of 2,080 hours p…

See Barner v. City of Novato, 17 F.3d at 1261-62 (holding that the words “amount” and “compensation” in the regulation referred to cash or salary rather than to all forms of compensation).

See e.g., Barner v. City of Novato, 17 F.3d 1256, 1262 (9th Cir.1994); McDonnell v. City of Omaha, 999 F.2d 293 (8th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1188 , 127 L.Ed.2d 538 (1994); Atlanta Professional Firefighters Union, Local 134 v. City of Atlanta, 920 F.2d 800 (11th Cir.1991); McGrath v. City of Philadelphia, 864 F.Supp. 466 (E.D.Pa.1994).

See, e.g., Barner v. City of Novato, 17 F.3d 1256, 1262 (9th Cir.1994) (where there was no express policy of deducting from exempt employees’ pay, employer must actually make deductions to lose exemption); McDonnell v. City of Omaha, 999 F.2d 293, 297 (8th Cir.1993) (“subject to” language does not mean that a possible or contingent reduction in salary violates salary basis test), cert. denied, — U.S. -, 114 S.Ct. 1188 , 127 L.Ed.2d 538 (1994); Atlanta Professional Firefighte…