Patricia D. GRIFFIN; Michael E. Poole; David W. Wrench; Phillip A. Ziady; Rebecca M. Ziady; Frankie Bailey; Ricky V. Bowling; Darin W.S. Bradley; Virginia K. Bruchi; Timothy Ward Bullock; Rebecca A. Clauss; Bobby S. Cockrell; Christopher Allen Colangelo; Stuart Douglas Coward, IV; Thomas Edward Davenport, II; Troy A. Davis; Scott Peter Del Pozzo; Peter C. Eure, Jr.; Edith P. Evans; Thomas Troy Gardner; Patsy O. Gentry; Mark D. Gottlieb; Jeffrey Stephen Hamerstein; Richard G. Hardin; Christopher D. Hendges; Rohn F. Hull; Amy Elizabeth Humphrey; Frederick C. Hutchins; Mark Kevin Justice; Joseph S. Kimrey; J. Paul Kumhyr; William S. Landon; Curtis L. Lowe; David William Minor; Dwight E. Minor; Edward Dennis Moxin; Michael William Norton; Bryan Everett Perry; Wallace Earl Piper; Christopher Paul Pitre; Robert D. Powers; Jerry B. Radford; Joseph W. Robbins, Jr.; Dwayne C. Smith; Scott C. Toth; Lee M. Van Vleet; Ardie C. Watkins; Philip Wayne Wheeler; Sean Roibin Woolrich, Plaintiffs-Appellants, v. WAKE COUNTY, Defendant-Appellee.
No. 97-1136
United States Court of Appeals, Fourth Circuit
Argued March 6, 1998. Decided April 27, 1998.
142 F.3d 712
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Although a victim need not be the direct victim of the offense of conviction, we do not believe, as the Government contends, that every individual adversely affected by the offense of conviction is an indirect victim. Rather, an indirect victim must have some nexus or proximity to the offense. Put simply, an individual is an indirect victim because of his relationship to the offense, not because of his relationship to the direct victim. Bank tellers and patrons are indirect victims in a bank robbery, see
III.
Although the district court relied upon three separate encouraged factors in seeking to justify an upward departure, each encouraged factor was either already taken into account in the applicable guideline, as in the case of
VACATED AND REMANDED.
OPINION
WILKINSON, Chief Judge:
A class of emergency medical technicians (EMTs) employed by Wake County, North Carolina, allege that the County erroneously paid them a half-time overtime premium according to the “fluctuating workweek” pay plan rather than the standard time-and-a-half overtime compensation under the Fair Labor Standards Act (FLSA),
ARGUED: Marvin Schiller, Raleigh, NC, for Appellants. Shelley Tager Eason, Wake County Attorney‘s Office, Raleigh, NC, for Appellee. ON BRIEF: Michael R. Ferrell, Wake County Attorney‘s Office, Raleigh, NC, for Appellee.
I.
Plaintiffs are or were employed by the County as EMTs. According to a preset written schedule, the County‘s EMTs work twenty-four hours on, twenty-four hours off, twenty-four hours on, twenty-four hours off, twenty-four hours on, and then ninety-six hours (four days) off. Thus, the EMTs work either forty-eight or seventy-two hours in any given week throughout the year.
Since February 1, 1990, the County has utilized the “fluctuating workweek” pay plan, a recognized method of compensation under the FLSA. See
Under this plan EMTs are paid a flat weekly salary as straight-time pay for the hours they work each week, whether forty-eight, seventy-two, or some other number.
Plaintiffs filed suit alleging that the County could not avail itself of the fluctuating workweek plan (1) because EMTs work a set, alternating schedule rather than irregular hours each week and (2) because the plan was “unilaterally imposed.” Plaintiffs subsequently sought to add two other allegations to the complaint: (1) that EMTs lacked the requisite “clear mutual understanding” of the fluctuating workweek plan and (2) that the County impermissibly deducted from vacation and leave balances when EMTs worked less than their scheduled hours. The district court granted the County‘s motion to dismiss under
II.
This circuit has considered the fluctuating workweek pay plan in several recent cases. Flood v. New Hanover County outlined the conditions for using the plan:
The language of section 778.114 suggests that an employer must meet the following requirements before it can pay an employee pursuant to the fluctuating workweek method: 1) the employee‘s hours must fluctuate from week to week; 2) the employee must receive a fixed weekly salary that remains the same regardless of the number of hours that the employee works during the week; 3) the fixed amount must be sufficient to provide compensation at a regular rate not less than the legal minimum wage; 4) the employer and the employee must have a clear, mutual understanding that the employer will pay the employee the fixed weekly salary regardless of the hours worked; and 5) the employee must receive a fifty percent overtime premium in addition to the fixed weekly salary for all hours that the employee works in excess of forty during that week.
125 F.3d 249, 252 (4th Cir.1997) (citing
A.
First, the EMTs charge the County has not satisfied the first Flood condition, that their “hours must fluctuate from week to week.” 125 F.3d at 252; see also
B.
The EMTs next allege a violation of the fourth Flood condition, that “the employer and the employee must have a clear, mutual understanding that the employer will pay the employee the fixed weekly salary regardless of the hours worked.” Id. at 252; see also
In the original complaint the EMTs object that the County “unilaterally imposed” the fluctuating workweek pay plan. Plaintiffs appear to suggest that there was no
In their amended complaint the EMTs refine the claim that they lack the “clear mutual understanding” of the fluctuating workweek plan required by section 778.114. This circuit confirmed in Bailey v. County of Georgetown that this prong of section 778.114 only requires employees to understand the essential feature of the fluctuating workweek plan—“that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period.” 94 F.3d 152, 156 (4th Cir.1996) (quoting
When the fluctuating workweek pay plan was implemented in 1990, the County took pains to explain it to employees. The plan was introduced at mandatory employee meetings, at which EMTs received an explanatory memorandum from the County‘s Emergency Medical Services Director, Gerald Brown. This memorandum indicates—twice—that the weekly base salary reflects straight-time pay for “whatever” number of hours were worked during the week and provides sample calculations of overtime under the plan. Plaintiffs make much of the fact that some examples in the memorandum refer to forty-eight and seventy-two hours. This is hardly surprising, as it reflects the schedule EMTs customarily work. And the memorandum nowhere suggests that EMTs must work these hours, and not less, in order to receive their base salary. In fact, the memorandum plainly states “your weekly base salary reflects straight-time pay for whatever number of hours you work during the week.” The Assistant Director for Operations of the County‘s Emergency Medical Services, Linwood E. Barham, provided this memorandum to EMTs hired after the fluctuating workweek plan went into effect. He also explained the fluctuating workweek plan to all candidates for EMT positions, saying, in part: “To determine your weekly pay for regular hours worked, divide your annual salary by 52. You will be paid this figure even if you work less than forty hours.” Thus either when the fluctuating workweek plan was adopted or when EMTs were hired, the County plainly communicated to its EMTs the essence of the plan: EMTs would receive the same amount of base pay each week they worked any regular hours, regardless of the number of hours worked. Moreover, the County took the additional step of asking EMTs to sign a copy of the explanatory memorandum, indicating “The Fluctuating Workweek Pay Plan (29 C.F.R. 778.114) has been explained to me and I have had an opportunity to have any questions answered.” Written acknowledgments are not required to satisfy section 778.114. Bailey, 94 F.3d at 156 (“Nor do the regulation and the FLSA in any way indicate that an employer must secure from its employees written acknowledgments indicating that the employees’ pay plan has been explained to them.“). But securing such acknowledgments is certainly probative of the employees’ clear understanding of the fluctuating workweek plan. See Highlander v. K.F.C. Nat‘l Mgmt. Co., 805 F.2d 644, 648 (6th Cir.1986) (finding clear mutual understanding when employee signed form explaining calculation of overtime under the fluctuating workweek method); cf. Condo, 1 F.3d at 602 n. 4 (noting importance of the fact that employment contract contained chart illustrating method of overtime pay). By taking this extra step, the County further established its employees’ clear understanding of the fluctuating workweek plan.
Nor can we overlook the fact that Wake County implemented the fluctuating workweek plan nearly eight years ago. In these eight years the EMTs have not identified a single instance of the County paying an EMT less than his full salary for a week in which he performed any regular work. Thus, since 1990, the EMTs have received a regular les-
The EMTs seek to shore up their claims with the County‘s so-called “admission” that the pay plan is confusing and with the charge that some supervisors misunderstood the details of overtime calculation under the plan. But this argument reads too much into the requirement of a “clear mutual understanding” outlined in section 778.114. Bailey clarified that “[n]either the regulation nor the FLSA in any way indicates that an employee must also understand the manner in which his or her overtime pay is calculated.” 94 F.3d at 156. That is to say, the regulation does not require an employer to make all employees personnel specialists. “Further, we do not find that the FLSA places the burden on the employer to hold an employee‘s hand and specifically tell him or her” precisely how the payroll system works, particularly “if that fact can be easily gleaned from employment policies, practices, and procedures,” Monahan, 95 F.3d at 1275. It is enough if, as here, the employer “provide[d] its employees with a reasonably clear and accurate explanation of their compensation,” Roy v. County of Lexington, 928 F.Supp. 1406, 1419, vacated in part on other grounds, 948 F.Supp. 529 (D.S.C.1996), aff‘d, 141 F.3d 533 (4th Cir.1998), and paid its employees according to that system of compensation, Monahan, 95 F.3d at 1275, 1281.2
In light of the diligent efforts the County took to inform the EMTs about the fluctuating workweek plan, and in the face of the County‘s careful administration of the plan over eight years, plaintiffs cannot now claim that they have never understood they would receive the same base salary each week they worked, whether it was a short or long one. Any misunderstanding of the plan‘s details is certainly not due to the County‘s lack of trying to explain it. A challenge to the County‘s entire pay system cannot proceed on the basis of an occasional misstatement or alleged confusion about the technical details of administering the fluctuating workweek plan. If it could, nearly every employer who uses this plan would be open to a lawsuit based on little more than “after-the-fact verbal contentions” that employees do not understand the plan in all of its particulars. See id. at 1281 n. 21.
C.
Finally, the EMTs allege that deductions from available leave or vacation balances taken when they did not show up for scheduled shift work somehow violate section 778.114. Specifically, the EMTs complain:
Whenever I took a one (1) week vacation which occurred during a week when I was scheduled to work seventy-two (72) hours, my earned vacation time was subtracted by seventy-two (72) hours.
Whenever I took a one (1) week vacation when I was scheduled to work forty-eight (48) hours, my earned vacation time was subtracted by forty-eight (48) hours.
If I took vacation for part of a week when I was scheduled to work for seventy-two (72) hours, but only worked forty-eight (48) hours, my earned vacation time was subtracted by twenty-four (24) hours.
The deduction of earned sick time would occur on the same basis.
III.
The EMTs’ original complaint was properly dismissed as legally insufficient. The EMTs’ amended complaint fails to cure this deficiency, so the district court properly denied leave to amend. We therefore affirm the judgment of the district court.
AFFIRMED.