Williаm L. Childers and all other similarly situated employees of the City of Eugene (“Appellants”) filed a civil complaint seeking overtime compensation and liquidated damages alleging that Appellee City of Eugene (“the City”) violated the overtime provisions of the Fair Labor Standards Act (“FLSA”). The district court found that Appellants were exempt employees not entitled to overtime рay and that the City was entitled to the window of corrections defense for its onetime suspension of an exempt employee in violation of the FLSA. We affirm.
I.
Under the FLSA, an employer may not suspend an exempt employee without pay for a period of less than one week based upon performance deficiencies.
In 1993, the City suspended an exempt employee without pay for four hours based upon performance and attendance problems. In 1995, that employеe was reimbursed by the City for the dock in pay caused by his suspension. Such a suspension amounts to a violation of the salary basis test.
Prior to May 23,1994, the City’s policy did not expressly state that exempt employees were subject to suspension without pay. On
Based upon the City’s one-time suspension of an exempt employеe in violation of the FLSA, Appellants contend that they are entitled to overtime pay under the FLSA because they were “subject to” the possibility of such a suspension in violation of 29 C.F.R. § 541.118(a) and thereby rendered nonexempt employees entitled to overtime compensation. The district court rejected Appellants’ argument stating that “[n]o rational person would conclude, from a four hour suspension of one exempt employee over a ten year period, that all of the City’s executive and management employees were really hоurly wage earners instead of salaried employees.”
II.
In Auer v. Robbins, the Supreme Court rejected a law suit by St. Louis police sergeants and a lieutenant to recover overtime pay under the FLSA. Id. The police officers argued that they were rendered nonexempt employees because their compensation could theoretically be reduced for a variety of disciplinary infractions related to the “quality or quantity” of their work. Id. at -,
In Auer, the Court adopted the Secretary of Labor’s interpretation of the salary basis test, denying exempt status only when there is either an actual practice of making such disciplinary deductions in pay or an employment policy that creates a “significant likelihood” of such deductions. Id. at-,
Appellants argue that this case is controlled by our decision in Abshire v. County of Kern,
Applying Auer to the present case, we conclude that the district court did not err in determining that Appellants were not rendered nonexempt by the City’s onе-time imposition of a disciplinary suspension on an exempt employee and lack of a policy forbidding disciplinary deductions in pay for exempt employees. Like the pоlicy at issue in Auer, the City’s policy prior to May 23, 1994 was written broadly to cover all regular City employees, both FLSA-exempt and nonexempt. The policy did not explicitly provide that exempt employees were subject to disciplinary deductions in pay. Rather, as in Auer, the policy may have referred only to nonexempt employees. Id. at-,
III.
FLSA provides a “window of corrections” defense to employers who unintentionally violate the salary basis test. Section 541.118(a)(6) provides that “where a deduction not permitted by [the salary basis test] is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future.” 29 C.F.R. § 541.118(a)(6). The Auer court held that the window of corrections defense should apply where the deductions in question were either inadvertent or made for reasons other than lack of work. Id. at-,
Our previous decision in Abshire held that an employer is not entitled to the window of corrections defense where an employment policy nominally subjects exempt employees to disciplinary suspensions. Abshire,
In this case, the City has reimbursed the suspended employee and has made every effort to comply with the FLSA’s requirements, inсluding adopting a disciplinary policy forbidding the suspension of any exempt employee for a period of less than one week. The district court did not err in concluding that the City was entitled tо the window of corrections defense.
AFFIRMED.
Notes
. Section 541.118(a) provides, in pertinent part, that "the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work.” 29 C.F.R. § 541.118(a). Thus, salaried emplоyees may be suspended without pay for the period of a week but must be compensated where they are suspended for a period of less than a week.
. Although two other employees were suspended without pay during the ten year period at issue, neither of those suspensions violated the FLSA. In 1991, a Parks and Recreation Supervisor was suspended for a one-week period. That suspension did not violate the FLSA provisions because suspensions in one-week increments are permissible under 29 C.F.R. § 541.118(a). 29 C.F.R. § 541.118(a) (”[A]n employee need not be paid for any workweek in which he performs no work.”). In 1993, a patrol sergeant was suspended without pay for two days because he failed to respond to a reported traffic accident. The district court concluded that the patrol sergeant’s suspension did not violate the FLSA because it was for a violation of a "major safely rule.” Appellants do not challenge this ruling explicitly on appeal and, in any event, the district court correctly determined that the patrol sergeant’s suspension was permissible under the FLSA.