*1 years. and elsewhere eleven The ma-
jоrity proposes now to introduce a Danny differ- FLORES; Barada; Robert Kevin circuit, ent for this creating rule a circuit Watson; Vy Van; Ray Lara; Dane split, providing protec- and lower level .of Woolwine; Nakamura; Rikimaru copyright tion for holders a different Christopher Wenzel; Shannon Casil country. area of the See Seven Arts las; Just; Rodrigues; James Steve En Filmed Entertainment Ltd. v. Content rique Deanda, Plaintiffs-Appel PLC, Corp. Media lees/Cross-Appellants, 2013). This approach inconsistent plainly Congressional in contravention of and copyright predictable intent that laws be uniform, yet and the majority defends its Hernandez, Plaintiff-Appellee, Cruz
rogue path ground on the that Congress something must have intended other than concluded,
what the Sixth Circuit has even Lee; Lopez, Plaintiffs, Gilbert Rene though we’ve heard not a peep from Con- gress, or for that Supreme matter Court, years in the еleven Bridgeport since
has been on books. GABRIEL, CITY OF SAN Defendant- short, majority’s fuzzy approach Appellant/Cross-Appellee. require would a factual largely visceral 14-56421, Nos. 14-56514 inquiry into every whether each and in- stance of sampling “substantial,” was United States Appeals, Court of Bridgeport provides whereas in the case of Circuit. Ninth a fixed sound recording bright-line rule, quote: and I “Get a license or do not Argued February Submitted sample.” 410 True, F.3d at 801. Get a Pasadena, California license or do sample carry doesn’t same Steal, divine force as Thou Shalt Not Filed June but it’s the same basic idea. I would hold the de minimis exception does not
apply to the sampling, copying, stealing, pirating, misappropriation it what —call
you will—of copyrighted fixed sound re-
cordings. fixed, Once the sound is it is
tangible property belonging copy- holder,
right and no one else has right
to take little of it permis- without
sion. I therefore respectfully dissent.2 2. Since summary I think that judgment majority was that the fee award was erroneous in improperly granted plaintiff's samрling agree event. I also that the district court claims, I also would reverse the properly granted award of summary judgment on the However, attorneys’ agree fees. plaintiff's I with the composition infringement claim.
Brian P. (argued) Walter and Alex Y. *5 Wong, Liebert Cassidy Whitmore, Los An- geles, California, for Defendant-Appel- lant/Cross-Appellee.
Joseph N. (argued), Bolander Brandi L. Harper, and Christopher L. Gaspard, Gas- pard Harper, APC, Castillo Ontario, Cali- fornia, for Plaintiffs-Appellees/Cross-Ap- pellants.
Before: TROTT, STEPHEN S. **, M. ANDRE DAVIS and JOHN B. OWENS, Judges. Circuit by Judge Concurrence OWENS OPINION DAVIS, Judge: Circuit Plaintiffs-Appellees and Cross-Appel- Danny Flores, lants Barada, Robert Kevin Watson, Vy Van, Ray Lara, Dane Wool- wine, Nakamura, Rikimaru Christopher Wenzel, Casillas, Shannon Just, James Steve Rodrigues, and Enrique Deanda and Plaintiff-Appellee (collec- Cruz Hernandez ** Davis, The Honorable Circuit, Andre M. Senior Cir- sitting the Fourth by designation. Judge cuit for the U.S. Court Appeals for exemp- overtime partial for the qualifies “Plaintiffs”) or former are current tively, 207(k) Act, its limiting of the City of San tion by employed officers police al- violations the overtime damages for The (“City”). Gabriel, California leged here. City for violations against suit brought Act Standards Fair Labor 201-19, alleging §§ (“FLSA”), 29 U.S.C. I. BACKGROUND failed to include Statutory background A. Plaintiffs’ benefits of the portions unused regular calculating their pay
allowances FLSA, employer must Under lower overtime resulting in a pay, rate of compen- overtime premium its underpayment consequent and rate regu- times and one-half of one sation Plaintiffs as- The compensation. overtime worked any hours lar of the violation seven-day serted forty in excess to a “willful,” entitling them FLSA was Angeles, Los week. Cleveland viola- limitations for 2005) statute of three-year (citing 984-85 recover Act, sought tions 207(a)). is defined “regular rate” The compensation overtime unpaid to, their paid employment remuneration “all damages. liquidated subject to a of, employee,” behalf or on in the Act. forth set of exclusions number cash-in-lieu City claimed that 207(e). “a limit- provides FLSA also excluded properly limit from the overtime exemption ed Plaintiffs’ from the per- of law enforcement employers public statutory ex- the Act’s to two of pursuant firefighters.” Adair sonnel for a qualified argued that clusions Kirkland, 207(k), exemption overtime partial 207(k)). 1999) partial over- (citing employing agencies public allows which *6 207(k) “increases in exemption time officers or law enforcement firefighters gives it slightly and limit overtime for period work an alternative designate flexibility to select greater employer overtime. determining purposes limit the overtime which period work over the FLSA that violation City denied (citation Id. at be calculated.” will the Plaintiffs and was willful omitted). damages. liquidated entitled cause of private provides FLSA follow, we conclude For the reasons wages unpaid to seek employees action unused benefits City’s payment provisions. to them rate of owed regular in included must be 216(b). two-year statute The Act has overtime the calculation thus in and employer’s unless the claims And limitations officers well. police rate for its “willful,” case in which was steps violation no affirmative City took to three limitations extended of its statute designation its initial to ensure that 255(a). who violates An years. complied with benefits in provisions liable overtime FLSA’s that it acted failed to establish FLSA and unpaid over- employee’s amount of excluding those in good in faith equal to an in addition compensation, time the Plaintiffs pay, from its 216(b). damages. liquidated in limi- amount three-year statute to a are entitled liquidated a defense provides Act for the The damages liquidated tations and establishes employer who for an damages conclude, howev- also City’s violations. had reason- and good faith it acted in has er, City demonstrated grounds able to believe that its actions plan contributions; did 2011, $1,138,074.13, in violate FLSA. 260. or 43.934% plan contributions; of total 2012, in $1,213,880.70,or 45.179% of total procedural B. Factual back- plan contributions. ground At 2003, some prior time City 1.Flexible Benefits Plan designated its cash-in-lieu of benefits pay- provides a Flexible Benefits ments as “benefits” that were excluded Plan to its under which from its calculation of a recipient’s regular designated monetary furnishes amount and, pay, rate of accordingly, has not in- to each employee for purchase of medi- cluded the value of the in its cal, vision, and dental benefits. All employ- calculation of employees’ regular еes are required to portion use a of these pay. The City has not designa- revisited its purchase funds to vision and dental bene- tion since that time. fits. An employee may decline to use the purchase remainder these funds to med- 2.Calculation of overtime ical only upon proof that the em- 1994, Since at least police ployee has alternate medical coverage, officers have been paid overtime when such as through a If spouse. an employee they have worked more eighty than hours forgo elects to medical benefits because in a fourteen-day work period. Since at she has coverage, alternate may she re- least eighty-hour/fourteen- ceive the portion unused of her benefits day period has been memorialized in allotment as a cash payment added to her several A documents. resolution regular paycheck. concerning the “work week” states that an employee who declined med- police officers work eighty hours a bi- ical coverage received a payment of weekly period. This same eighty-hour/four- $1,036.75 in lieu of benefits each month. teen-day work period was restated in the This amount has year, increased each so City’s Salary, Compensation and Benefit that employees who declined medical cov- Policy Manual, July dated and in erage $1,112.28 2010, received $1,186.28 the 2005-2007 Memorandum of Under- $1,304.95“ in 2012. This standing between the City police and the ment appears designated as a line item on officers’ collective unit. bargaining Because an employee’s paycheck subject and is *7 to City’s the cash-in-lieu of payments benefits federal taxes, and state withholding- Medi- are excluded from its calculation of an taxеs, care garnishment. and regular officer’s rate of pay, the benefits payments 2009, are not incorporated City $2,389,468.73 the into paid the to or City’s on of calculation the behalf of its officer’s overtime pursuant to its rate. Flexible Plan, Benefits and paid it $1,116,485.77 amount, of that or 46.725% of 3.Litigation parties between the plan
total contributions, to employees for unused benefits. While the exact figures The Plaintiffs instituted this suit against vary year, each the percentage of the total City Following 2012'. discovery, both plan contributions that City pays parties partial moved for summary judg- employees for unused benefits has re- ment on the Plaintiffs’ claims. district mained somewhat 2010, consistent. In agreed court with the Plaintiffs that City paid $1,086,202.56 to employees for City’s cash-in-lieu of payments benefits, unused reflecting 42.842% of total not properly were excluded from its calcu- summary grant 56, “shall a court Rule except to pay, rate of regular of lation that there if movant shows judgment City makes that the the extent fact any material as to dispute City genuine no v. Flores parties. or third to trustees judgment as is entitled the movant 1169- and Gabriel, F.Supp.2d San of 56(a). P. R. I”). Fed. Civ. (“Flores Finding of law.” 2013) a matter (C.D. Cal. for file parties cross-motions not the Act was When of violation City’s sepa- each we review summary judgment, however, willful, it held each mo- for the non-movant rately, giving of two-year statute restricted infer- all reasonable of 1177. the benefit Id. tion claims. their for limitations Inc. v. Reform, Bio-Ethical City ences. Ctr. found also court The district for 780, 786 Dep’t, 207(k) Cty. overtime L.A. partial for qualified Sheriff omitted). 2008) (citation lia thus limited exemption in ex worked to hours bility for overtime ANALYSIS III. fourteen-day work in a eighty-six cess receiving sup After 1177-79. Id. at liberally period. is construed “The FLSA de district court briefing, the plemental exemptions ‘are employees; favor of sum partial for motion nied the Plaintiffs’ employ against narrowly construed liquidated the issue on mary judgment Cleve to assert them....’” seeking ers summary sponte entered sua damages and Arnold land, (quoting at 988 that issue. City on in favor of the judgment Inc., Kanowsky, Ben Gabriel, 12- No. CV San (1960)). Flores The em 4 L.Ed.2d S.Ct. 5817507, at (JCGx), 2013 WL establishing 04884-JDB the burden ployer bears II”). 2013) (“Flores (C.D. Oct. *1 Cal. exemption under for an qualifies exemp a FLSA not find Id. We will Act. the district appealed timely plainly “except contexts] [in applicable tion concerning the exclusion rulings court’s exemp given unmistakably [the within from of benefits the cash-in-lieu (alterations in spirit.” terms tion’s] The Plaintiffs pay. regular Cty. Klem v. Santa original) the district challenging cross-appealed, 2000)). Clara, 208 F.3d payments qualified rulings that the court’s to a ifAct made under the for exclusion pay rate of regular A. Calculation party, third or a trustee 207(e)(2) 1. Section 207(k) partial ovеrtime §a qualified statute applicable appeal exemption, contention primary and that years, was two limitations of benefits that its cash-in-lieu liquidated not entitled Plaintiffs were from excluded properly 207(e)(2) damages. pursuant hours compensation they are REVIEW OF II. STANDARD Section Plaintiffs. by the worked *8 pay rate of regular from excludes summary of grant review a periods made for occasional payments de summary judgment partial judgment or vaca- due to performed is no work re of standard novo, the same applying the em- illness, of failure tion, holiday, Federal under district court as the view work, oth- sufficient provide Adair, ployer 185 56. Procedure Rule Civil payments cause; reasonable similar er Utility Workers 1059; Local 216 ex- or other expenses, traveling Co., Edison v. S. Am. Cal. Union of employee by an 1996). penses, incurred Under n.1 furtherance his employer’s interests specifically described in 7(e)(2). section and properly by reimbursable the em- It is clear that the clause not in- was ployer; and other similar payments to permit tended to the exclusion from the an employee which are not made as regular payments rate of such as bonus- compensation for his hours of employ- es or the furnishing of facilities like ment. board and which, lodging though not City argues that this final phrase-— directly attributable particular “other similar to an employee are, hours of work nevertheless, clearly which are not made as compensation for understood to be compensation for ser- his hours of employment” permits exclu- — vices. sion of any payments that do depend not 778.224(a). § C.F.R. Section 778.224 on when or much how employee work the provides also examples three performs. The City does not contend that that cоnstitute “other similar payments” its cash-in-lieu of benefits payments are 207(e)(2) § and are thus properly not compensation. Rather, pay- because its excluded under that ments of the subsection—-amounts Plaintiffs’ unused benefits are paid to an employee for not tied to hours rental of her worked or amount of vehicle; loans or provided by services Plaintiffs, advances made to the City reasons, employee; and “[t]he cost properly 207(e)(2). § excluded under of conveniences This ques- is a furnished to the employee tion of first impression such as parking this space, restrooms, and other lockers, circuits. While a question, close on-the-job con- medical care and recreational clude that the City’s cash-in-lieu 778.224(b). § of bene- facilities.” Department fits payments may not be excluded under interpretation Labor’s 207(e)(2) §of 207(e)(2) § and therefore must bе included thus directly contrary to the interpretation in the calculation the Plaintiffs’ regular “other similar payments” clause that pay. the City urges here. § 778.224(a), Under payment may not Department excluded from Labor’s inter pretation 207(e)(2)’s §of pursuant phrase final is set forth at 778.224,1 C.F.R. if is generally pro which understood compensa- as vides, in part: work, tion for even though
Since
not
variety
tied
directly
to specific hours
miscellaneous
worked
paid
by
ments are
an
by
employee.
indeed,
And
employer to an
examples
employee
peculiar
given
778.224(a)
circumstances,
of payments that
it was not considered feasible to
were not
attempt
intended to be excluded under
to list them. They must, however, be
the “other similar payments” clause, such
“similar” in character to the payments
as bonuses or room and board, are com-
1. Section 778.224 is
interpretаtive
(2000) (citations
bulletin
899 weekly and between distinction ployer’s compensation to be monly considered is point” “key the wages hourly not fluctuate do payments —that such though for “compensation is payment the whether worked hours particular with accordance ob- of our no mention makes work”—and employee. by an not “are that payments that servation “other the interpreted similarly haveWe at spent of hours by number the measured on to focus clause payments” similar un- automatically excludable are not work” payment was the character the whether forecloses 207(e)(2). reasoning This der Utili- Local for work. 246 compensation 207(e)(2). §of interpretation the Southern America Union ty Workers ar- Co., the Edison Brands Interstate California Reich Neither supplement to made payments that gued Container v. Stone Minizza Corp. nor performing workers of disabled wages the East Division Container Corrugated Corp. performed had they than work lower-wage 1988), (3d per- Plant, 1456 F.2d “made as not disability were their to prior 207(e)(2)is reading of our that us suades hоurs employee’s] for [the compensation classifica- the concerned Reich incorrect. workers the because employment” for work- made to bakers payments tion of Local wage. hourly, weekly, not a paid two consecutive without ing schedule (alteration original). F.3d at the While at 575-76. days off. 57 that explaining argument, rejected this “other the that concluded Circuit Seventh is salary pay or that key point is “[t]he other to “refers clause payments” similar it “[t]hus work” compensation on at all depend for that do not payments supple- whether difference no makes performed,” is or how much regular to a tied are mental that interpretation employers’ rejected Id. wage.” hourly or wage weekly “not any payment excluded clause words, added). In other (emphasis at spent of hours the number by measured payment particular of whether question the statute reading of work,” same payments” the' “other similar within falls 577-78. Id. at here. City espouses pay- on whether not turn does clause determined court Reich instead wage, hourly but to is tied ment schedule an inconvenient working for ment form of ais payment turns whether reimburse- and the vacation unlike is In- work. performing for compensation kinds two other expenses ment —the that, if deed, “[e]ven opined §in enumerated payment —and by not measured base higher “a similar instead is work, that fact at spent of hours number or smelly employee compensating exclusion them qualify not alone does supervisors, tasks, foul-tempered risky n.2 207(e)(2).” Id. at section Id. days off.” consecutive inability to take Corp., Brands v. Interstate (citing Reich court held Accordingly, the 578-79. at 1995)). (7th Cir. ex- not be could the schedule bottom, 207(e)(2). At cluded must Local City contends the stat- reading of Circuit’s Seventh distinc- broadly read so not own—both our from so different is not weekly ute between was issue there tion at issue payment to whether compensa- look not between wages, hourly compensation understood generally worked to hours that was tied tion whether employee, is true. That not. was compensation em- by the worked hours specific fully tied grapple However, City fails ployee. em- rejecting reasoning for our *10 Minizza, the Third Circuit 207(e)(2)’s § consid- “other similar payments” ered the treatment of lump sum payments clause.
made to employees pursuant to a collective
As noted previously, the City does
bargaining agreement. 842
at
1458. not contend that its cash-in-lieu of benefits
The payments were
made
lieu of a wage
payments are excluded from
increase and
inducement to ratify
of pay
they
because
are not compen
the agreement. Id. The Third Circuit de-
sation, but rather
they
because
are not
termined that these lump sum payments
compensation for hours of
performed
work
were properly
§
excluded
207(e)(2),
under
or an amount of services provided. Even if
rejecting the district court’s conclusion
had not made this concession,
payments
could not be excluded
however, we would conclude that
pay
they
were not sufficiently similar ments at issue here are properly consid
time
vacation
and reimbursements. Id.
compensation
ered
for work. The other
1461-62.
Third Circuit interpreted
payments we have found to be excluded
207(e)(2)’s
§
“other
similar payments”
207(e)(2)’s
§
“other similar pay
clause
encompass
“payments not tied to ments”
payments
clause are
for non-work
hours
compensation,
of which payments
time,
ing
similar to vacation or
time,
sick
for idle hours and reimbursements are which are
expressly excluded under
only two examples.” Id. at 1461. This
207(e)(2).
read-
See Balestrieri v. Menlo Park
ing, too, ultimately
focuses
whether a
Dist.,
Fire Prot.
1103-04
given payment is a form of
compensation
2015) (leave
buyback payments);
for an employee’s
or,
service
like vacation Ballaris v. Wacker Siltronic Corp., 370
time and reimbursements, is
instead a pay-
2004)
(lunch
peri
ment that
ods).
would not generally be
consid-
at issue here are not
ered compensation for an employee’s
similar
work.
for non-working time
Admittedly, the Third
greater
Circuit’s
reimbursement for expenses.
fo-
cus on a direct tie to hours worked or Moreover,
the FLSA’s inclusion of a
services provided hews more closely to the
separate exemption specifically addressing
interpretation
urges here.
benefits, § 207(e)(4), suggests
We decline to adopt a similar requirement. ments related to benefits would othеrwise
observe,
however, because
purpose
be
compensation.
considered
Inclusion of a
of the payments in Minizza was to secure
separate exemption also indicates that
the employees’ ratification of a collective Congress did not
207(e)(2)’s
understand
bargaining agreement,
such
“other
payments”
similar
clause to already
compensation
performed,
exempt payments related to benefits. See
would similarly be excludable under our Reich,
901 unused the City pays the Because limitations qualifications the erates and not employees directly to its benefits establishes subsections other the its cash-in- person,” or third a trustee “to fall payments lump-sum all that principle exclud be cannot payments benefits lieu of rate,’ then most for ‘regular the outside 207(e)(4). a similar rejected under ed super- become remaining subsections employer in Local argument 2k6 fluous.” of the that no evidence had proffered reasons, light and in thеse For to a trust made issue at payments the FLSA’s interpret we that command be directly to than rather em- favor of in narrowly exemptions 207(e)(4) with contri “[sjection deals cause City has that conclude we ployee, to payments not employer, by the butions demonstrate to its burden carry to failed 216, at 296. 83 F.3d Local employee.” payments of benefits cash-in-lieu that its here. equally reasoning applies That ex- constitute unmistakably” “plainly find that its us to City urges The 207(e)(2). payments cludable with fall payments benefits cash-in-lieu warns The at 988. Cleveland, 420 207(e)(4) though the §of even ambit in the of the ruling favor us that or a trustee to not made are payments to municipalities encourage will this case “gener payments party because third of benefits cash-in-lieu discontinue sub of that requirements meet the ally” in- consequent to due programs ment pe not it should section, arguing detriment сosts in overtime crease flexible own administering its for nalized ob- we have As employees. municipal statute’s ‘[a] “[w]here But plan. benefits “more are arguments before, such served of the function sole plain, language toor Congress to ... made appropriately to its according it enforce is to courts to than Labor, rather Department presume terms,’ ‘courts must Angeles, Los Cty. Bratt the courts.” what it in a says statute a legislature 1990). 1066, 1071 912 says it what a statute and means means municipal ruling on of our effect potential ” (quot Cleveland, at 989 420 F.3d there.’ us give not license decision-making does Enters., Pair v. Ron States ing United Accordingly, FLSA. the terms alter Inc., 489 U.S. ruling court’s district affirm Bank (1989); Nat’l Conn. 290 L.Ed.2d payments of benefits City’s cash-in-lieu 253-54, S.Ct. Germain, U.S. excluded properly not are (1992)). 117 L.Ed.2d 207(e)(2). not are payments of benefits cash-in-lieu party, and third or trustee to a made 207(e)(4) 2. Section meet the do payments those therefore not at 207(e)(4). We are §of requirements cash-in-lieu argues that City also re the clear exceptions to add liberty exclud- properly are of benefits for in the statute forth set quirements 207(e)(4). Section pursuant ed re satisfy the “generally” 207(e)(4) from excludes par This provision. quirements by an irrevocably made “contributions pay exemptions here, where ticularly true pur- person or third a trustee nar to be requirements FLSA’s old- providing plan fide to a bona suant employee. in favor construed rowly accident, health life, or retirement, age, Arnold, (citing at Cleveland, employ- benefits similar insurance 453). thusWe S.Ct. ees.” have no trouble concluding under section Act, it will cash-in-lieu of are not still be regarded as a bona plan fide properly excluded from the regular rate of though provides, anas incidental 207(e)(4). pursuant §to part thereof, for to an em- *12 ployee in cash of all or a part of the Whether payments benefit made amount standing to his ... credit during directly to a trustee or third party pursu the course of his employment cir- under ant City’s to the Flexible Benefits Plan are specified cumstances plan and not properly excluded from the regular inconsistent with general 207(e)(4) purposes § under is a question. closer plan to provide the The benefits de- district court answered question scribed in 7(e)(4) section affirmative, a the Act. holding that the Plain tiffs challenge in their cross-appeal. The c>£2 T—i ho'S C\J argue that the Flexible Benefits The Department of Labor inter Plan is not a “bona fide plan” under preted provision this in a 2003 Opinion § 207(e)(4), and thus payments made Letter, which states that cash-in-lieu a to trustee or third party pursuant to the payments benefits are “incidental” Plan under are not propеrly excluded under that § 778.215(a)(5)if they account for agree. subsection. We no more than 20% employer’s total contribu 207(e)(4), § Under payments made to a tion July 2, amount. 2003 Dep’t of Labor trustee party or third “pursuant to a bona Op. Letter, 2003 WL at *2. The plan fide for providing old-age, retirement, Opinion Letter explains that the Depart life, accident, or health insurance or simi- ment has historically used a 20% limitation lar benefits for employees” may be exclud- on cash per employee to deter ed from rate of pay. The stat- mine if such payments are more than “inci ute does not define the term “bona fide dental” under 778.215(a)(5). Id. Howev plan.” Department The of Labor’s inter- er, the Opinion Letter modifies the pretation nof that term is set forth at 29 application of the 20% cap: C.F.R. 778.215.2 parties’ The dispute only concerns one provision of that section: We continue to believe that this cap 20% plan give must not an is an employee ... appropriate method for assessing the option to any part receive whether any cash are an inci- employer’s contributions in cash instead part dental of a bona fide plan benefits of the benefits under plan: Provid- 778.215(a)(5)(iii). under However, be- ed, however, That if a plan otherwise 7(e) cause section of the FLSA provides qualified as a bona fide benefit plan for the exclusion of employer contribu- 778.224, 2. Like § 778.215 is an interpreta- partment’s interpretation because the term tive bulletin respect accorded under Skidmore "bona fide” §in is unambiguous, to the extent interpretation that the has disagree. we City cites Black's Law Dic- "power persuade.” Christensen, 529 U.S. at tionary, which defines “bona fide” as "1. Skidmore, 120 S.Ct. faith; good Made in without fraud or deceit. 161). Sincerе; Because neither 2. genuine,” as evidence that the party challenges the district court’s reliance term has an ordinary, unambiguous meaning. §on 778.215 to determine City’s whether the very definition that the quotes, how- payments to a party may third ever, be excluded illustrates the term "bona fide” has 207(e)(4), we apply § 778.215 here multiple interpretations. reasonable The term without expressing opinion per- toas is ambiguous thus and resort Depart- suasiveness. To the extent that the later ment of Labor’s interpretation guidance suggests that we need not consider the De- appropriate. threshold the 20% setting aside Even pursu- made are for benefits tions however, can- Letter, we Opinion re- further on plan, fide a bona ant to Flexible Benefits find the focus we believe view plan fide” “bona plan as as a qualifies whether Plan be should question more of plan. 778.215(a)(5). Forty percent fide benefits bona is a whole di- paid are 20% test total contributions Therefore, believe basis. than received plan-wide rather rectly applied should correctly points 20% test Moreover, plan-wide While such benefits. lan- regulatory consistent its cash-in-lieu more out part of or a contri- “all its total allows half of which less than guage ments cred- employee’s only standing to constitute butions, amount” *13 it long as occurs cash, so paid contributions. it its total majority to a bare are consis- which not simply circumstances under are cash City’s The primary purpose plan’s a such with Benefits tent of its Flexible part “incidental” an benefits. providing term. reading of that any fair Plan under Plan the Benefits disregard Flexible City’s to urges us City Because Id. The § rea- insufficiently under plan” fide Letter not a “bona Opinion 2003 requirements inconsistent to and pursuant soned in- Department’s 778.215(a)(5). 778.215(a)(5), Like the § § are bulletins, letters opinion Flexi- under its parties third terpretative trustees to only Skidmore respect” under exclud- properly to are “entitled Plan Benefits ble interpreta- agency’s 207(e)(4). that the extent to § ed Chris- persuade.” to “power tion has 1655 at
tensen, 529 U.S. 207(k) partial overtime B. Section 140, 65 Skidmore, at 323 exemption an Skidmore, whether 161). Under S.Ct. FLSA the Plaintiffs’ to response defer- is accorded interpretation agency’s before argued had claims, City thoroughness upon depend “will ence to a entitled it was court validity of district consideration, the in its evident 207(k). § exemption overtime partial earlier consistency with reasoning, its its summary granted and agreed all those court The pronouncements, and later this issue. City on if persuade, judgment power it give which factors eligibili- Skidmore, 323 contest do not control.” power lacking question only exemption; for thе 161. ty S.Ct. 65 U.S. at actually City has is whether us before the 2003 City that agree with 207(k) period. work §a established De- unpersuasive. Letter Opinion wholly explain fails of Labor partment of es the burden City bears 20% adoption reasoning for its exemp for the qualifies it tablishing it Rather, explains agency ceiling. (citations 1060 Adair, F.3d at 185 tion. cash cap on a 20% used previously must employer omitted). “Generally, then discusses employee per ments 207(k) work ] a [§ it established show cap to 20% transitioning reasoning 207(k) period work ] [§ that the period does Nowhere plan-wide. cash payments ” (citing recurring.’ ‘regularly was was 20% why rationale provide Philadelphia, McGrath cash at which percentage as the chosen 1994); (E.D. Pa. F.Supp. “incidental” longer no 553.224). employer “Whether § C.F.R. plan. part of meets this burden is normally a question While the Plaintiffs attempt to distinguish of fact.” Id. (citing Spradling v. City by Adair pointing that provision’s spe- Tulsa, 95 F.3d 1996); Cir. cific reference FLSA, we placed no of Winnetka, Vill. Barefield weight on this language when discussing 1996)). whether the employer established the 207(k) exemption. All we required It is undisputed that the City then&emdash;and now&emdash;is all we require adopted an eighty-hour/fourteen-day work show that it established period for its police officers at least as 207(k) work period 207(k) and that early as 2003 and that the City paid has work period was regularly recurring. Id. overtime in accordance with this pe work (citations omitted). Specific reference to riod since least 1994. Nor do the Plain 207(k) is not necessary to satisfy this dispute tiffs memorialized its standard. Consistent with our sister adoption cir- of the eighty-hour/fourteen-day cuits, we decline to require more of em- period in a resolution and ployers to qualify 207(k) for the exemp- restated it in the City’s Salary, Compensa tion. See Rosano v. Twp. Teaneck, tion and Benefit Policy Manual, July dated (3d 187-88 2014); 3, 2010, Calvao v. and in a 2005-2007 Memorandum *14 Town Framingham, 599 10, F.3d of 16-17 Understanding between the City and (1st 2010); Cir. Brock v. the Plaintiffs’ Cincinna- collective bargaining unit'. ti, 236 793, (6th F.3d 2001); Cir. Free- Plaintiffs nonetheless argue that the man v. City Mobile, 146 F.3d City does not qualify 207(k) § for a exemp (11th n.3 Cir. 1998); Spradling, tion 95 F.3d at because the City does not reference 1505; Barefield, 81 710; 207(k) § at see any in also of these documents. They Milner v. Hazelwood, 165 F.3d contrast references to its work 1999) Cir. curiam) (per period (holding police that officers with language in employer need not establish the exemption the City’s Salary, Compensation and Bene through public declaration). fit Policy Manual expressly stating that the City and the firefighters’ collective The City has satisfied the criteria for unit bargaining “agree to use the par 7k application 207(k) § exemption by tial overtime exemption.” adopting an eighty-hour/fourteen-day work period for its An law employer need enforcement officers and expressly identify by 207(k) paying overtime in accordance with 207(k) that establishing a 1994&emdash;facts period since period in that order are not to qualify dis- for the puted by the exemption. In Plaintiffs. Adair, Accordingly, we held that affirm the district employer court’s grant carried its burden sum- to show that it mary judgment had 207(k) on established this issue. exemption “when it specified the work period in the Liquidated C. damages
[Collective Bargaining Agreement] and
when it actually followed this period in
The Plaintiffs also challenge
practice.”
overtime more generously 1990)). than the FLSA Like its determination requires. arguments These miss regarding liquidated the mark. damages, a district Evidence that City complied court’s with its determination of willfulness under 255(a) obligations other under the Act is a оr that it mixed question of fact and agreed law, pay overtime more with de generously novo review of the district than required by application law do not court’s demonstrate law to established (citations what the facts. omitted). has done to id. at ascertain See wheth- er its classification of the payments at An employer’s violation' of the complied issue here with the FLSA. FLSA is “willful” when it is “on notice of
Because has failed to demon- its requirements, yet FLSA [takes] no af attempted strate that it to comply with the firmative action to assure compliance with faith, good Act in 909; conclude that them.” Id. at see also Haro v. City of Plaintiffs are entitled to liquidated Angeles, dam- Los ages 2014) and remand this case Alvarez, (citing 909). district judgment court to enter for the Such is the case here. Ms. Tang’s testimo accordingly. ny regarding process desig
nating payments as either a “premium” оr
D. Statute of limitations
a “benefit”
distinguish
pay
between
ments included in
calculation of
§ 255(a),
Pursuant
the two-
an officer’s regular
shows that
year statute of limitations for actions un
the City was aware of
obligations
der
may
the FLSA
be extended to three
the FLSA. And despite notice
Act’s
years
employer’s
if an
violation is deemed
requirements,
yields
record
no evi
Alvarez,
“willful.”
339 F.3d at
(citing
dence of affirmative actions
by
taken
McLaughlin v.
Co.,
Richland Shoe
City to ensure that its classification of its
128, 135,
100 L.Ed.2d
cash-in-lieu of
benefits
complied
(1988);
255(a)).
A violation is willful
with the
Indeed,
FLSA.
it is undisputed
if
“knew or showed reckless
failed to investigate whether
disregard for the matter of whether its
its exclusion of cash-in-lieu of
pay
prohibited
conduct was
by the [FLSA].”
*16
ments from the regular rate
of
com
Chao,
(alteration
907 willful, we hold that FLSA tion of was of if the existence willful considered limitations of three-year statute the Act’s our subject were authority on binding re- part, affirm therefore We here, applies. point toMore only consideration. matter remand this and part, verse authority controlling case of the absence proceedings further court the district City has dispositive cannot be with consistent judgment entry of looked to that ever evidence forth no put bear its shall own party Each opinion. this authority existed. such whether see Cf. appeal. costs on Union, Cty. v. 102 Local Int’l Emps. Serv. 1346, 1355-56 Diego, PART, San REVERSED IN AFFIRMED that em- 1994) that evidence (finding PART, AND REMANDED. IN authority legal on substantial relied ployer whom OWENS, Judge, with Circuit De- experts and with consulted concurring: joins, TROTT, Judge, Circuit obligations its Labor on partment employer’s FLSA established I majority’s opinion. fully in the I concur willful). not violation was I believe our separately write because in the context easelaw willfulness no evidence forth put has is off track. limitations statute FLSA whether determine it took to actions Co., of benefits Shoe McLaughlin treatment cash-in-lieu v. Richland In FLSA, de- 100 L.Ed.2d complied 486 U.S. (1988), do stressed obligation Supreme of its Court full awareness spite negli- therefore conclude mere Act. more than was that willfulness so willful acts un- employer FLSA was violation gence, “[i]f that its (cid:127) in deter- recklessly, three-year statute reasonably, but not the Act’s and that two-year accordingly legal obligation,” reverse mining its applies. We limitations apply. would concerning of limitations ruling statute FLSA court’s the district n.13, 1677. limitations, the mat- & S.Ct. and remand Id. at 132-35 statute of definition, Court em- formulating this proceedings. further ter “Jiffy so-called rejected the phatically the statute expanded CONCLUSION IV. June” standard knew “an anytime of limitations above, hold forth reasons set For the ” picture.’ in the FLSA 'was that benefits, pay- cash-in-lieu Coleman S.Ct. from the excluded properly nоt ments are Inc., Farms, Jiffy June pay under of the regular calculation 1972)); Hazen Pa- see also (e)(4). And either 604, 615, 113 507 U.S. Biggins, per Co. Plan Flexible Benefits (1993) (noting 123 L.Ed.2d S.Ct. 207(e)(4), plan” under “bona fide Appeals the Courts “[sjurprisingly, *17 or third to trustees City’s payments meaning about confused to be continue reg- from may not be excluded parties Age Discrimi- in” the ‘willful’ of the term subsection. pay under ular rate of Act, though Employment nation however, partial does, qualify for rejected ... again McLaughlin “[o]nce 207(k). fur- exemption overtime ”). standard’ ‘in the picture City has not shown hold ther IBP, Inc., In Alvarez FLSA with the comply it attempted 2003), on other 908-09 are there- and that the good faith aff'd 546 U.S. grounds, damages under liquidated fore entitled this court (2005), panel L.Ed.2d City’s viola- Finally, the Act. McLaughlin correctly cited analyz
ing an FLSA question. willfulness But
then panel concluded that the employ willfully
er acted because it “was on notice requirements, its FLSA yet took no action to affirmative assure compliance “ them,” and that easily ‘could have
inquired meaning into’ the of the relevant
FLSA terms type and the of steps neces
sary to comply therewith.” Id. at 909
(quoting Herman v. Ltd., RSR Sec. Servs. (2d 1999)). McLaughlin gloss
This very comes
close to qyburnian resurrection of the
Jiffy June standard. And it gloss— is this tougher
and not the standard that
Supreme Court set out—which compels join
me to Part III.D of the majority opin- Alvarez,
ion. Absent I would affirm the
district court on the statute of limitations
question.
UNITED America, STATES of
Plaintiff-Appellee,
Adolph SPEARS, Sr., Pops, AKA
Defendant-Appellant.
No. 13-30253
United States of Appeals, Court
Ninth Circuit.
Argued and Submitted October Portland, Oregon
Filed June