David RUTLIN, Plaintiff-Appellant, v. PRIME SUCCESSION, INC.; Kerley & Starks Funeral Homes, Inc., jointly and severally, Defendants-Appellees.
No. 99-1042.
United States Court of Appeals, Sixth Circuit.
Argued: March 17, 2000; Decided and Filed: July 20, 2000
Rehearing and Rehearing En Banc Denied Sept. 11, 2000
220 F.3d 737
Before: NORRIS, MOORE, and COLE, Circuit Judges.
COLE, Circuit Judge.
David Rutlin, a licensed funeral director and embalmer, filed this action against his former employer under the Fair Labor Standards Act (FLSA),
John T. Burhans (argued and briefed), Law Office of John T. Burhans, St. Joseph, MI, for Appellant.
Stephen B. Mead (argued and briefed), Ross & Hardies, Chicago, IL, Neil P. Jansen, Mika, Meyers, Beckett & Jones, Grand Rapids, MI, for Appellees.
Roger Wilkinson (argued and briefed), Paul Frieden (briefed), U.S. Department of Labor, Office of the Solicitor, Washington, D.C., for Amicus Curiae.
I.
From 1968 until 1997, Rutlin was employed by Kerley & Starks Funeral Hоmes, Inc. and its successor, Prime Succession, Inc. (“Prime Succession“), as a licensed funeral director and embalmer. In order to become a licensed funeral director in Michigan, Rutlin was required to complete a year of mortuary science instruction and two years of college, including classes in chemistry and psychology; pass national board tests that covered embalming, pathology, anatomy, and cosmetology; practice as an apprentice for one year; and pass an examination given by the state. See
From 1985 to 1997, Prime Succession paid Rutlin under five different salary arrangements. The district court described the five periods as follows:
- From November 1974 to February 1995 (“Period I“), plaintiff was paid a salary of $1623.00 every two wеeks with no overtime.
- From February 1995 to March 1996 (“Period II“), plaintiff was paid on a “fluctuating workweek” plan. Under this plan, plaintiff received $1540.00 every two weeks and some overtime (one-half plaintiff‘s regular rate) for every hour worked over forty per week. Plaintiff‘s regular rate for any given week was calculated by dividing his fixed salary by the number of hours worked that week.
- From March 1996 to December 1996 (“Period III“), plaintiff was paid on a “guaranteed workweek” plan. Under this plan, plaintiff received $1750.00 every two weeks for all hours worked up to and including sixty hours, and overtime at one and one-half his regular rate for hours worked over sixty per week.
- From January 1997 to [m]id-April 1997 (“Period IV“), plaintiff was paid a salary of $1750.00 every two weeks without overtime.
- From [m]id-April 1997 to October 1997 (“Period V“), plaintiff was paid on an hourly basis with overtime at one and one-half times his regular rate for hours worked over forty per week.
Rutlin v. Prime Succession, Inc., 29 F.Supp.2d 794, 796 (W.D.Mich.1998) (footnote omitted).
As one of three funeral directors employed by Prime Succession, Rutlin was required to be on call during certain nights and weekends. When Rutlin was on call, Prime Suсcession‘s phone line was transferred to his home, where he was responsible for answering calls. This duty was rotated, such that for two weeks Rutlin would be on call two week nights from 5 p.m. to 8 a.m., and the third week he would be on call over the weekend, from 5 p.m. Friday to 8 a.m. Monday.
In August 1997, Rutlin filed a complaint in Michigan state court, claiming that he was denied overtime pay and on-call compensation in violation of the FLSA, the Michigan Wages and Fringe Benefits Act (WFBA),
The district court found that Rutlin was a professional employee during pay periods I through IV and, therefore, exempt from the FLSA‘s overtime provisions. Accordingly, the district court granted Prime Succession‘s motion for summary judgment for pay periods I through IV. With respect to pay period V, the district court granted summary judgment in favor of Rutlin, finding that he was not a professional during that time because he was not paid on a salary basis. The district court thus held that Rutlin was entitled to overtime pay for pay period V.
As for on-call compensation, the district court granted summary judgment in favor of Prime Succession, finding that Rutlin‘s on-call time was not so restrictive as to require pay. The district court stated:
Plaintiff admits that he could usually swap on call schedules with another funeral director in order to accommodate his plans, and that he could forward the phones and be reached by a pager if he had to leave home while on call. Plaintiff states that on average he received between 15 and 20 phone calls a night, taking up about one hour of his time, while he was on call. Sometimes plaintiff would be required to make other phone calls in response to the calls he received. Also, plaintiff received, on average, one “death call” per week. A
death call required the plaintiff to leave home, pick up the hearse, remove the body, and return the body to the funeral hоme. Plaintiff clocked in and out, and was compensated, for the time he spent on a death call. Finally, plaintiff stated that he was able to engage in personal activities while on call, including watching television, computing, talking on the phone with friends and family, engaging in activities with his wife, and going out to dinner. Given these facts, it is apparent to the Court that plaintiff‘s on call time was not “so onerous” as to prevent him from engaging in personal pursuits. Plaintiff had flexibility in his on call schedule, and the ability to leave his home. The phone calls plaintiff received, though fairly frequent, rarely involved calls to duty, or death calls. Finally, plaintiff was able to engage in a significant number of personal pursuits while on call. For these reasons, the Court finds that plaintiff‘s on call time is not compensable under the FLSA.
Rutlin, 29 F.Supp.2d at 799-800 (citation omitted).
In regard to Rutlin‘s WFBA claims, the court granted summary judgment to Prime Succession for pay periods I through IV, based on the fact that the WFBA does not create an independent right to overtime pay. The court did not grant summary judgment to either party for pay period V on Rutlin‘s WFBA claim.
Finally, the district court addressed Rutlin‘s state contract law claims. The court found no evidence that Rutlin understood he was entitled to overtime pay for periods I through IV, but found there was a contract for overtime pay during period V. The district court granted summary judgment to Rutlin for this time period.
The parties then stipulated that the WFBA claim for Period V would be dismissed, to enable Rutlin to appeal to this court. Rutlin now appeals the adverse rulings of the district court. The Secretary of Labor has filed a brief as amicus curiae in support of Rutlin.
II.
We review a district court‘s grant of summary judgment de novo. See Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The decision to deny a motion for summary judgment, while ordinarily reviewed for abuse of discretion, is reviewed de novo when it is based on the resolution of a legal issue rather than on the presence of a material issue of fact for trial. See Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir.1997). Summary judgment is proper if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
III.
A.
Rutlin contests the district court‘s finding that he was a professional and, therefore, not entitled to overtime compensation under the FLSA for pay periods I through IV.
The FLSA requires an employer to compensate an employee who works over forty hours a week “at a rate not less than one and one-half times the regular rate at which he is employed.”
Congress did not define the phrase “bona fide executive, administrative, or professional capacity” in the FLSA; instead, it delegаted to the Secretary of Labor the responsibility of promulgating regulations to define the scope of the section at issue. See
With respect to determining whether the exemption for overtime pay applies because an employee is a professional, the implementing regulations of the FLSA set out a “long test” and a “short test.” The short test applies to employees who are paid “on a salary or fee basis at a rate of not less than $250 per week.”
We are aware of only one circuit court that has faced the issue of whether a licensed funeral director and embalmer is a professional under the FLSA. In an unpublished decision, the Seventh Circuit affirmed a district court‘s finding that a licensed funeral director and embalmer was a professional, noting that the employee often operated the funeral home alone in the absence of the owner, and that embalming required independent judgment and discretion. See Szarnych v. Theis-Gorski Funeral Home, Inc., No. 97-3069, 1998 WL 382891, at *1 (7th Cir. June 4, 1998).
Turning to other occupations, the Fifth Circuit has held that athletic trainers are professionals, in light of Texas’ requirement that trainers obtain a bachelor‘s degree in any field, but also must take certain courses such as anatomy and physiology, perform a three-year apprenticeship, and obtain CPR certification. See Owsley, 187 F.3d at 525; see also Reich v. Wyoming, 993 F.2d 739, 743 (10th Cir.1993) (finding game wardens to be professionals, stating: “In order to accomplish the tasks associated with wildlife management, the wardens must have particular knowledge of various species and their habitats as well as the vegetation and general terrain within their districts. A degree in wildlife management or biology or similar field provides the wardens with this requisite knowledge.“). But see Dybach v. Florida Dep‘t of Corrections, 942 F.2d 1562, 1566 (11th Cir.1991) (holding that a probation officer not a professional because the job did not require an advanced degree in a specialized field of knowledge).
In the present case, there is no argument regarding whether Prime Succession can establish the first prong of the short test for establishing that Rutlin was a professional: Prime Succession paid Rutlin on a salaried basis for pay periods I through IV.
As for the second prong of the short test, Prime Succession must show that Rutlin‘s work required “knowledge of an advance type in a field of science or learn-
Here, the district court found that plaintiff‘s work required knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as required by federal regulations:
As a funeral director and embalmer, plaintiff had to be licensed by the state. In order to become licensed, plaintiff had to complete a year of mortuary science school and two years of college, including classes such as chemistry and psychology, take national board tests covering embalming, pathology, anatomy, and cosmetology, practice as an apprentice for one year, and pass an examination given by the state.
We agree with the district court. Rutlin completed a specialized course of instruction directly relating to his primary duty of embalming human remains. The fact that Rutlin was not required to obtain a bachelor‘s degree fails to persuade us otherwise. The FLSA regulations do not require that an exempt professional hold a bachelor‘s degree; rather, the regulations require that the duties of a professional entail advanced, specialized knowledge. We conclude that а licensed funeral director and embalmer must have advanced, specialized knowledge in order to perform his duties.
Rutlin argues, however, that even if a licensed funeral director and embalmer‘s duties are considered professional, he spent only fifteen hours a week actually embalming bodies and directing funerals. Rutlin thus contends that his primary duties were not professional because those duties consisted of general upkeep of the funeral home. The district court disagreed, finding that even if Rutlin‘s other, non-professional duties took more than fifty percent of his working time, his professional duties were of principal importance to Prime Succession and, therefore, constituted his primary duties.
Again, we agree with the district court. Although the amount of time an employee spends in the performance of particular tasks is a useful guide to determining that employee‘s primary duty, see
Turning to the third prong of the short test for determining whether Rutlin is an exempt professional, we must consider
This claim is supported by the nature of plaintiff‘s duties, including counseling grieving families, and removing, embalming and cosmetizing bodies, and by the fact that plaintiff was often unsupervised in those duties. While plaintiff gained expertise in his work over the course of his employment, such expertisе does not change the professional nature of plaintiff‘s work, or eliminate the discretion and judgment plaintiff exercised in performing his duties.
Rutlin contends that embalming is “routine and contained within well-defined parameters.” He asserts that the techniques of embalming have changed very little over the past thirty years, and notes that Michigan has no continuing education requirement for his profession. Prime Succession, on the other hand, claims that several of Rutlin‘s responsibilities, such as removing bodies, counseling families, arranging funerals and visitations, cosmetizing bodies, and the actual embalming process, require discretion and judgment. Prime Succession further claims that Rutlin was unsupervised in performing these duties and that he was in charge of the funeral home when the manager was absent.
The exercise of discretion and independent judgment “involves the comparison and the evaluation of possible courses of conduct.”
In the present case, we conclude that Rutlin exercised discretion and independent judgment in performing his duties. Rutlin was responsible for supervising and coordinating the removal of bodies from residences, hospitals and nursing homes; organizing, directing, and supervising funerals; performing embalming procedures, adjusting those procedures to the condition of the deceased; and counseling families. As noted by the Seventh Circuit, the duties of a licensed funeral director and embalmer “required consistent exercise of discretion and judgment and specialized knowledge in his field.” Szarnych, 1998 WL 382891, at *1.
In sum, we conclude that Rutlin was a professional for pay periods I through IV and, therefore, exempt from the overtime provisions of the FLSA.
B.
Rutlin аlso complains that he should have been compensated for time spent on call. The district court rejected this claim, finding that Rutlin‘s on-call time was not so restrictive as to require pay.
At the outset, we note that Rutlin‘s claim for on-call compensation is applicable to pay period V only, because we have determined that Rutlin was an exempt professional for pay periods I through IV. See
An employee must be compensated for on call time spent “predominantly for the employer‘s benefit.” Aiken, 190 F.3d at 760. “[T]he question in on-call cases is whether the employer‘s restrictions on [its employees‘] time prevent the employees from effectively using the time for personal pursuits.” Id. To be considered work time, an employee‘s on-call time
Here, Rutlin claims that he was expected to remain at home while on call, where he was required to answer the funeral home‘s calls, which were forwarded to his house. Rutlin claims that he answered an average of fifteen to twenty calls per night for Prime Succession while on call, spending approximately one hour per night on the phone. Rutlin claims that his on call duties prevented him from drinking alcohol, visiting his children, or boating, and that his meals, evening activities, and sleep were disrupted by his on-call duties.
Prime Succession, on the other hand, contends that Rutlin was free to engage in personal activities while on call. Prime Succession points to Rutlin‘s testimony that he could switch on call shifts “most of the time” when needed. Prime Succession also claims that it gave Rutlin a pager to allow him to leave his home if desired.
We agree with Rutlin that, for pay period V, he should be compensated for the time spent answering the fifteen to twenty phone calls he received per night. Answering these phone calls was not typical on-call time; rather, Rutlin was actually working, albeit from home. There is no question that the time Rutlin spent on those phone calls was primarily for the benefit of Prime Succession; therefore, Rutlin should be compensated for that time. As for the other time spent on call, we agree with the district court that the restrictions on Rutlin were not so onerous as to require compensation. Rutlin was free to use that time for personal pursuits. See Martin, 968 F.2d at 611. Accordingly, we reverse the judgment of the district court as to this issue and remand the case to the district court to determine appropriate compensation for the time Rutlin spent answering phone calls while on call during pay period V.
IV.
Finally, Rutlin claims that he and Prime Succession entered into a contract providing that Rutlin would be paid overtime for pay periods I through IV. Even if Rutlin is a professiоnal pursuant to the FLSA, the parties are free to enter into an agreement for overtime compensation. However, the contract to which Rutlin refers, which appears to be an employee booklet, merely states that non-exempt employees will be paid overtime. Because Rutlin is an exempt professional, there is no contractual provision awarding him overtime compensation. We affirm the district court‘s judgment as to this issue.
V.
For the foregoing reasons, we AFFIRM in part and REVERSE in part, and REMAND to the district court for the determination of Rutlin‘s on-call compensation for pay period V.
MOORE, Circuit Judge, dissenting.
I respectfully dissent from the majority‘s holding that Rutlin was a professional exempt from the overtime pay requirements of the Fair Labor Standards Act
Additionally, because I believe that there are genuine issues of material fact as to whether all of Rutlin‘s on-call time was compensable, I respectfully dissent from the majority‘s conclusion that Rutlin is entitled to compensation solely fоr the time he actually spent answering the fifteen to twenty phone calls per night during his on-call duty.
I.
Under the short test for the professional exemption, an employee is exempt from the overtime pay provisions of the Act if his employer proves: (1) that he is paid at a “rate of at least $250 per week exclusive of board, lodging, or other facilities“; (2) that the employee‘s work requires “knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study“; and (3) the employee‘s “work requires the consistent exercise of discretion and judgment in its performance.”
The majority holds that Rutlin‘s role as a funeral director satisfies both the second and third prongs of the short test for the professional exemption from the overtime pay requirements of the FLSA. See
I disagree with this reasoning. I believe that the “course” of study Rutlin undertook to obtain a mortuary science license under Michigan law does not conform to the federal regulations that define the requirements for professional employment status in
In fact, the regulations explicitly state that the “typical symbol of the professional training and the best prima facie evidence of its possession is, of course, the appropriate academic degree, and in these professions an advanced academic dеgree is a standard (if not universal) prerequisite.”
In this case, Rutlin lacks any specialized instruction equivalent to four years of pre-professional and professional study. Without suggesting any disrespect for Rutlin‘s job as a funeral director, I conclude that the program Rutlin followed in obtaining his mortuary science license was nothing more than a generalized educational program, and our sister circuits have repeatedly held that generalized educational programs do not fulfill the federal regulatory standards for ““a prolonged course of specialized intellectual instruction and study.” Fife v. Harmon, 171 F.3d 1173, 1176-77 (8th Cir.1999) (quoting
Also, Rutlin had to complete one year of academic study at mortuary science school to receive his license. Contrary to what the majority asserts, however, this year of study, even when coupled with Rutlin‘s college education, did not involve “a specialized course of instruction directly relating to [Rutlin‘s] primary duty of embalming humans remains.” See maj. op. ante at 742. In mortuary science school, the only course that Rutlin took to prepare him for handling the chemicals used in the embalming process was “Embalming,” and none of Rutlin‘s college courses directly related to the proсess of embalming. J.A. at 77. Rutlin did not even take courses on how to counsel families or how to handle grief associated with death. J.A. at 77. Lastly, unlike many other professionals such as lawyers, Rutlin was not required to complete any continuing education so that he could remain knowledgeable of related disciplines and new developments in his field, nor did he have to attend any informal training sessions on the embalming process to maintain his license. J.A. at 683-84.2
In sum, I do not believe that Rutlin completed “a prolonged course of specialized intellectual instruction and study” as contemplated by the regulations. Rather, Rutlin‘s academic program was akin to those of the plaintiffs in Quirk v. Baltimore County, 895 F.Supp. 773 (D.Md.1995), and Debejian v. Atlantic Testing Labs., Ltd., 64 F.Supp.2d 85 (N.D.N.Y.1999), which were held not to be prolonged courses of specialized intellectual instruction.
In Quirk, the district court held that Cardiac Rescue Technician-Paramedics (“CRTs“), who were required to complete a training course consisting of 120 hours of classroom instruction and 80 hours of supervised clinical training, and Emergency Medical Technician-Paramedics (“EMTs“), who were required to complete an additional 400 hours of training or the equivalent of 42 college credits, did not have the education necessary to be considered professionals under the FLSA regulations.
Like the plaintiffs in Quirk and Debejian, Rutlin possessed a specialized technical skill that was necessary to perform functions of his job as a funeral director and for which he was required to undergo some formal general education and training. As the courts in both Quirk and Debejian recognized, however, such a program is not sufficient to qualify for the professional exemption from the overtime provisions of the FLSA. The mere fact that an employee must obtain some education or training to perform a technical job does not exempt him from the provisions of the FLSA.
Second, the majority reasons that Rutlin meets the third prong of the short test for the professional exemption under the FLSA because he “exercised discretion and independent judgment in performing his duties... [by] supervising and coordinating the removal of bodies from residences, hospitals and nursing homes; organizing, directing, and supervising funerals; performing embalming procedures, adjusting those procedures to the condition of the deceased; and counseling families.” See maj. op. ante at 743. I disagree.
In my opinion, the majority misunderstands the regulation‘s requirement that professional “work requires the consistent exercise of discretion and judgment in its performance.” See
In essence, Rutlin‘s application of his embalming skills was comparable to that of
In Hashop, the district court held that, although the NCS Instructors used their advanced training and experience to make decisions during simulated missions, they were allowed to make such decisions only within a well-defined framework. Hashop, 867 F.Supp. at 1298-99. Although the instructors could make tеchnical recommendations within the framework of the simulation scripts, they had no discretion to change how or when simulations were operated or to modify them in any other way. Id. Thus, they did not satisfy the third prong of the short test.4 Similarly, in Quirk, the district court held that the paramedics lacked the requisite authority to exercise discretion and judgment because they were required to respond to strict protocols that were established by physicians and could be disciplined for failing to follow the protocols. Quirk, 895 F.Supp. at 785-86; see also Brennan v. South Davis Community Hosp., 538 F.2d 859, 864 (10th Cir.1976) (finding that the chief x-ray technician was not within the professional exemption because his decisions were limited to determining if the pictures were technically adequate and his work was not predominantly intellectual and varied as required by
In this case, like the plaintiffs in Hashop and Quirk, Rutlin did not have any real discretiоn in performing his required tasks as a funeral director. First, with regard to Rutlin‘s duties in supervising and coordinating the removal of bodies from residences, hospitals, and nursing homes, Rutlin simply followed company policy, which required that a funeral director be present when a body is being removed from a home to answer the questions of the family and to set up a time to make final arrangements. J.A. at 619-20. Second, with respect to Rutlin‘s organizing, directing, and supervising funerals, the tasks involved with these duties were not of the sort requiring the application of “special knowledge or talents with discretion and judgment.”
In sum, in my view, Rutlin neither possessed the education of a professional, nor performed work that required “the consistent exercise of discretion and judgment in its performance.”
II.
With regard to Rutlin‘s claim for compensation for on-call time, the majority holds that Rutlin is entitled to be compensated solely for the time he actually spent in answering the fifteen to twenty calls per night that were forwarded from the funeral home to his house. Because I am convinced that there are genuine issues of material fact as to whether Rutlin‘s full on-call time was compensable, I dissent from the majority‘s holding.
We previously held in Martin v. Ohio Turnpike Comm‘n, 968 F.2d 606 (6th Cir. 1992), that “on-call time spent at home may be compensable if the restrictions imposed are so onerous as to prevent employees from effectively using the time for personal pursuits.” Id. at 611; see also
In balancing these factors, some courts have found that the on-call time of employees was compensable. For example, in Renfro, the Tenth Circuit found that, in spite of firefighters’ participation in sports and social activities with family and friends while on call, the on-call time of these firefighters was compensable because the frequency of calls, an average of three to five times a day, significantly restricted their personal schedules to the benefit of the employer and because the firefighters were required to report to a callback within twenty minutes, and could be subject to discipline for not answering. Renfro, 948 F.2d at 1537-38; see also Cross, 938 F.2d at 916-17 (finding a genuine issue of material fact as to whether on-time cаll was compensable because the employees were confined to a limited area and the on-call time significantly interfered with their private activities with family and friends and common activities like watching television or reading). On the other hand, other courts have found that on-call time was not compensable. For example, in Martin, we found that the on-call time of turnpike employees was not compensable because the employees could wear a beeper during their on-call duty or leave word where they could be located and therefore were not significantly restricted by on-call policies. Martin, 968 F.2d at 611-12; see also
I believe that the facts in Rutlin‘s case fall somewhere between Renfro and Cross, in which the on-call time of the plaintiffs was held to be compensable, and Martin and Ingram, in which the employees’ on-call time was found not to be compensable. In my opinion, Rutlin has raised a genuine issue of material fact as to whether the number of phone calls he received during his nights on-call were so burdensome that he was “engaged to wait” for them. Skidmore, 323 U.S. at 137. Rutlin testified that he received fifteen to twenty phone calls per night while on-call (including calls forwarded from other funeral homes), with each call lasting for a few minutes and sometimes requiring follow-up. J.A. at 661. He further testified that the phone calls were often so frequent that he could not enjoy private, personal activities, such as family dinners. For instance, Rutlin testified, “It was a busy line. I remember trying to eat and having to jump up and handle a phone call, sit back down, trying to eat, and I‘d have two or three phone calls during dinner.” J.A. at 661.5
I also think that the frequency of these calls raises questions as to Rutlin‘s geographical restrictions, in particular his ability to leave his house freely without burdensome interruptions.6 The majority states that the fact the funeral home gave Rutlin a pager indicates that he was free to engage in personal activities. Rutlin began to work at the funeral home in 1968, however, and did not receive this pager until the early 1990s. J.A. at 660. Because I believe that Rutlin does not satisfy the criteria for the professional exemption, I believe that there is at least a question as to whether Rutlin was free to engage in personal activities before he received the pager in the early 1990s. As Rutlin testified during his deposition, “[B]efore I had a pager, I usually stayed at home.... It was my duty to answer the phones. I could get someone else to answer the phones and tell them where I would be, but I would have to check in with them every half hour.” J.A. at 661. Certainly, if Rutlin had to call regularly and check in with someone every half hour when he left his home during on-call duty, he could not take part in simple events, such as going to a movie or a play, without having to worry about interruptions due to customer calls. Moreover, I believe that there is an issue of fact regarding whether Rutlin could freely engage in personal activities even with a pager. Rutlin‘s wife, Evelyn Clare Rutlin, testified that even with a pager “[s]omeone had to answer the phone to be able to page” her husband if he was out of the house. J.A. at 695. Therefore, even with the use of a pager, Rutlin had only one of two choices if he wished to participate in private activities outside of his home: (1) have his wife answer the phone so that she could page him, which would in effect prevent him from engaging in any activities with her;7 or (2) similarly inconvenience another funeral director by having him answer the phone calls that
Additionally, Rutlin has raised a genuine issue of material fact regarding whether his responsibilities for “death calls” left him “engaged to wait” and thus unable to use his on-call time effectively for personal pursuits. Rutlin testified that he received a “death call,” for which he had to remove and transport bodies to the funeral home, at least once a week. J.A. at 662. If a death call involved removing the body from a home, Rutlin had to contact the family immediately for a removal. J.A. at 662. In most cases, bodies were removed from homes within forty-five minutes to an hour from the call. J.A. at 619. If a death call involved a removal from a nursing home or hospital, Rutlin could wait until the morning (unless the call occurred in the morning) to remove the body; however, Rutlin had to adhere to the funeral home‘s strict rule requiring that all embalmings, each which usually took about two hours, be completed by 8:00 a.m. J.A. at 662, 682. Thus, Rutlin was often compelled to finish each embalming directly after a death call and removal.8 All of these facts together raise questions as to whether the potential for “death calls” and the unpredictability of these calls made effective, personal use of Rutlin‘s on-call time impractical.
Finally, I believe that the district court should have considered the extent of the benefit that the employer received from Rutlin‘s on-call time. Given the high number of calls thаt Rutlin received each night of his on-call duty, an important inquiry would have been whether and how much Rutlin‘s employer would have had to pay others to perform these services—in other words, whether the employer was receiving necessary labor for free. See Reich v. Southern New England Telecomms. Corp., 121 F.3d 58, 64-66 (2d Cir.1997) (examining the benefits to the employer for a claim for mealtime compensation); see also Eric Phillips, On-Call Time Under The Fair Labor Standards Act, 95 MICH. L. REV. 2633, 2644-46 (1997).
III.
For the foregoing reasons, I would reverse the district court‘s partial grant of summary judgment on Rutlin‘s claims for overtime pay and on-call time compensation, and I would remand the case to the district court for further proceedings in accordance with this dissent.