*2 BEAM, Before ARNOLD and Circuit Judges, DOTY,1 Judge. District ARNOLD, Circuit Judge. plaintiffs are current and former Aberdeen, for the Dakota, South who have sued the recover claim is due them under the Fair Labor Standards (FLSA). Act agreed Both sides that no dispute facts and moved for sum- mary judgment. The district court denied plaintiffs’ motion partial summary judgment granted judgment to the City, concluding plain that the lan- FLSA’s guage prevents payment to those who have not worked. We review the district court’s summary judgment of a motion for DaimlerChrysler de novo. Woods (8th Cir.2005). Corp., 409 F.3d Because the relevant facts are not dis- final, pute judgment and the we also plaintiffs review the court’s denial of the partial summary judgment motion for de Indus., novo.' Inc. v. See White Consol. (8th Co., Mfg. McGill Cir.1999). consideration, After careful reverse. plaintiffs were often permits

work more hours than the FLSA Doty, sitting designation. 1. The Honorable David S. United States Minnesota, Judge District for the District of receiving disagree concede parties without this but to work has example whether the our of those occa- pay, and on some hours of overtime to em- four plaintiffs would ask other em- sions the A. The on their behalf. ployees work shifts *3 regulation stating a that promulgated is arrangement kind of common This employee substitutes for another when one permissible and is un- among the worked are “excluded” from hours it is long the FLSA so der substituting employee hours “for which permission. employer’s and done would otherwise be entitled to overtime § a 207(p)(3). 29 U.S.C. When substitu- compensation,” employee and “each will be occurs, employer pays sched- tion as if he or she his or credited had worked substitute; employee not the uled her work for that shift.” normal schedule that amount the substitute receives is fixed 553.31(a). § 29 read plaintiffs C.F.R. agreement by private between the two em- requiring City City paid plaintiffs ployees. employee. to the straight for their substituted shifts that is contends purposes and also credited them for the overtime, governing void a statute time, seniority and it leave refused 207(a)(1), per- 29 that a U.S.C. them the to which the FLSA son more work than the they them plainly have entitled had maximum number of hours to receive over- plain- worked shifts themselves. The time pay. tiffs contend that a federal enti- reviewing con agency’s When an them to same amount of tled statute, a struction of we look first worked pay when substitutes their shifts legisla the statute’s language whether for them. history clearly tive demonstrate what Con a a employee gress When works shift intended. North Dakota rel. Ol ex another the law son Medicare & Medicaid employee, provides for Centers for Sens., (8th Cir.2005). 403 F.3d “the a employee that hours such worked as do, that When intent controls and by shall be excluded any regulation court not defer to in the calculation of the hours interprets contrary the statute man employee which the is entitled to overtime U.S.A., Id; ner. see also Chevron Inc. v. compensation, under section.” Council, Inc., Natural Resources § 207(p)(3). A Defense example U.S.C. brief 837, 843, 845, help: Imagine employees are who (1984). But Congress’s L.Ed.2d 694 when forty-four each scheduled to work hours intent unclear and the contains is statute thirty-six one week. A Employee works explicit gap, implicit or we will defer to B to hours asks work the agency’s regulation not long so eight-hour last on her behalf. Em- shift capricious, manifestly con “arbitrary, agrees B and works the shift. trary to the statute.” 104 S.Ct. though B fifty-two Even worked 2778; the Boundary Friends Waters week, paid forty- for only hours he is Bosworth, Wilderness v. 437 F.3d four hours and receives four hours of (8th Cir.2006). 821-22 (As said, pay. the com- B pensation receives for the support plain-language of its ar eight by additional hours is determined gument, cites to in the B.) agreement says A and FLSA “no employer employ between shall any compute of his who workweek many how hours must be in a engaged produc- firefighter’s total duty” “tours of before he commerce, employed tion of or is Id.; she is entitled to overtime pay. enterprise engaged in an in commerce or 553.230(c). C.F.R. see no indication commerce, 207(k) §in that all of those hours must be longer forty for. a workweek than hours worked him- or herself. unless such receives [overtime We therefore conclude FLSA’s 207(a)(1) wages].” (emphasis 29 U.S.C. plain language a Congres- does reveal added). language, City says, sional deny intent to an employee overtime means that the employee must be wages when another worker voluntarily (i.e., actively working) to receive overtime *4 substitutes for him or her employ- with the wages. But a parsing more careful er’s permission. section reveals that the statute uses the Examining legislative history sur- phrase “engaged in commerce” a kind § rounding 207(p)(3) helps clarify matters. applicational of threshold: The overtime This provision part was of the 1985 FLSA 207(a) provisions § apply employ- of if the amendments, see Fair Labor Standards in engaged ee is commerce or in pro- 3(a), Amendments of PL § 99-150 99 duction of for at commerce time (November 13, 1985), Stat. 787 and both during the work week. And even if the the House Reports and Senate regarding is not those amendments note that employees en- commerce, of gaged in 207(a) fire-protection or law-enforce- applies if “enterprise” ment traditionally activities traded shifts engaged. which he or she works is so with one another without the substitution “engaged” The word therefore relates not affecting computation to whether actively was either working, employee. H.R.Rep. 99-331, but whether the No. employee’s or at (1985); enterprise’s S.Rep. 99-159, (1985), work was of a certain kind. No. at 13 Cong. 1985, 651, U.S.Code & Admin.News moreover, question, applicability 661. The concern arose that without §of to these current and former § 207(p)(3), regulations certain FLSA firefighters. Congress amended require could government the state or local provisions FLSA in 1974 so that its would employ- overtime to the apply employees. to state and local In the ee. Consider our earlier example, assum- amendments, course passing those 207(p)(3) did not exist. Em- agreed House and Senate partial ex- ployee B still eight works hours on behalf emption to firefight- the overtime rules for A: If 207(k) FLSA police ers and officers. Section employer pay employee B overtime for the FLSA reflects that compromise. Un- all the hours he or she works above provision, der that employ- state and local maximum, employer ers of are not bound to the seven-day 207(a), pay employee B period work twelve hours of overtime rather than instead extend the relevant work four. Such period to 207(k). a rule long days. employer as 28 would leave the unable to 29 U.S.C. addition, control employer expenditures, its overtime must over- since the wages only employees’ voluntary if a firefighter’s total substitutions could duty” “tours of employees exceed hours a 28- cause some to accrue massive day period; work peri- for shorter work amounts of only way overtime. The ods, the ratio of 212 to 28 is used to could cabin these costs would words, interpretations; alto- substitutions ent

be forbid employ- question. ambiguous gether, deprive which would consistently of a and flexible Department ers useful of Labor has interpreted tool. to mean that “the scheduled to work receives concern, both the Addressing (and if he she compensation) credit Reports explain that House Senate La- Application had of the Fair worked.” (§ 207(p)(3)), subsection under new Act to Employees bor Standards State ..., trade hours “[i]f Governments, Fed.Reg.2012, and Local will credited as he she be (Jan. 16, 1987); Wage see also or her normal work sched- had worked his Letter, Opinion Hour 2004 WL 3177870 99-331, (1985); No. H.R.Rep. ule.” 2004). (Nov. 23, of La- (1985), 99-150, at No. U.S.Code S.Rep. has reiterat- bor’s amicus brief case 1985, 651, 661. & AdmimNews Cong. agency’s interpreta- ed An position. purpose is a clear indication ambiguous own tion of its way to fashion 207(p)(3) §of was “ long ‘plainly as it is not errone- stand so hav- voluntary substitutions without allow ” *5 or regulation.’ ous inconsistent with the spiral control. costs out of Crop Rain Hail Federal & Ins. Serv. v. em- By having employer credit each the (8th Cir.2005) Corp., Ins. he shift or she was ployee the which Robbins, Auer v. scheduled, (quoting subsection limits the (1997)) 905, 137 L.Ed.2d 79 117 S.Ct. employer that an will amount have omitted). (quotation and marks citations wages in no more than what it case paid voluntary agency’s interpretation have shift this would absent the easily Department passes that test. substitutions. exactly language used same when it City’s not much in the We do see merit 553.31(a). The promulgated argument Labor’s fully as written is therefore consistent 553.31(a) interpretation §of un- creates an clearly expressed

with the intent of Con- All the employers. reasonable burden gress. City to do scheduled em- Even as though written is if he ployee as or she had worked the intent, plainly Congress’s with consistent shift; keep any it need not addi- question: we are still with a left What City tional records. And need not precisely mean when it does exchanges, any monitor all shift says will “credit- be place substitutions that take will ed”? The contends that the word not the employer’s cause actual overtime it requires give “credited” the scheduled expenditures vary expectations from the wages normal for the shift developed that it it when first scheduled along any attendant benefits he the employees. or accrued. The plaintiffs, she reasons, For hand, foregoing we revex-se argue on the other it means defendant’s motion that the treat sched- employer must summary judgment and the denial of in all if he or respects uled shift, plaintiffs’ summary for partial she motion including paying had worked judgment, him her remand the otherwise case arguments proceedings warranted. These demonstrate further inconsistent with susceptible opinion. that the term is differ- BEAM, Judge, dissenting. Circuit substitution of services for scheduled work hours. regard Congress said: I believe the of Aberdeen has cor- If an individual employed who is rectly applied applicable any construed and capacity by agency I which Accordingly, respectfully statutes. dis- is a State, political State, subdivision of a sent. an interstate governmental agency, court, Like the district I think the lan- agrees, approval with the guage by adopted Congress in 29 U.S.C. agency solely at the option of such part of the Fair Labor Stan- individual, to during sched- (FLSA) dards Act controls practices uled work hours for another individual involved in this litigation employed who is by such in employee to actively work to receive an same capacity, the hours such compensation. overtime rate of The stat- worked as a substitute shall be excluded says ute “no shall employ any of by public agency in the calculation of any his who in workweek is the hours for which the engaged in production entitled to overtime compensation under for commerce ... for a workweek this section. longer than forty hours unless such em- §Id. 207(p)(3). receives wages].” [overtime While this clear- 207(a)(1).2 ly U.S.C. excludes The words “shall em- for substituted services, ploy any says of his nothing who about to whom or regular workweek is whom compensation commerce or in paid But, be for the for commerce” for substituted hours. *6 above, period beyond a of time noted FLSA-desig- unambiguous an the statute is nated overarching commanding workweek embrace the these substitute hours “shall continuing overtime-pay be excluded ... focus of the the calculation of Act, is, that overtime the hours for compensation [substituting] is which the em- working ployee due for actual to beyond compensa- entitled pay periods the non-overtime tion.” established by the statute. While 1974 amendments Then, enters the (that added coverage of state and local (DOL) with a on substitution. congressional recognition agency essentially The repeats the section that a “forty hour frequently workweek” 207(p)(3) statutory language and adds does not suffice for employment one employee “[w]here for an- substitutes similarly situated other, be credited as employees) slightly altered the thrust of he or she had worked his or her normal Act, 207(k), see id. no modifications work schedule for that shift.” 29 C.F.R. to made the above-referenced “em- 553.31(a) (third sentence). The remain- ... in” language and noth- der of section 553.31 otherwise takes the ing in the amendment attenuates alters public employer compensation out of the 207(a). purpose and intent of section arrangements between the substituted-for

Amendments to the FLSA in 1985 vali- substituting employee, and the already dated an practice established directly appeal. matters at issue merce, "engaged 2. “Whilethe words in commerce” the additional words "in work- standing clearly precise might alone well be construed as week” lead to the more intent requiring only general employment in com- I find. for all actual work compensation three sentence DOL contends 597-98, employment.” com- S.Ct. payment “mandates the added). Thus, DOL’s at- firefights (emphasis to the substituted-for pensation imprint on the unam- tempted regulatory Plaintiffs case.” Amicus brief at 8. 207(a) is im- court, biguous language section applying Chevron deference and the and the district court gloss, agree proper. regulatory to DOL’s 553.31(a) Indeed, line, at the bottom I were correct. crediting arrangement section believe that under Tennessee Coal ambiguously expressed an responsive to no FLSA- holding there is enforceable require em- statutory intent to requirement that a public based compensation ployer anyone anything working, for not employee. nonworking, substituted-for day. perhaps this is an issue for another analysis. disagree I Accordingly, respectfully I dissent. referred amendments regulato- subsequent the court and the over- ry simply from DOL cannot edicts intent clearly expressed legislative

ride the section

contained section require

states compensation HYDRICK; substituted-for David James Allen Lan- phere; Griffin; work overtime-eli- must Frank Shaundale Thus, Cisneros; Pederson; gible hours. DOL’s overtime-orient- Paul Steven Gary Price; Cerniglia; cannot command ed slant the statute Robert Daniel reg- Mrowici; Ciancio; this court deference from Kenneth Michael McClure; Mata; “plainly ulation is or inconsis- Richard Bish- erroneous James Fields; op; Lee; v. Rob- Ron [section tent with Auer Melvin Leonard ].” Pierre; Price; Jimmy bins, 452, 461, Thomas Guth- omitted). (1997) rie; Kelly; Jones; (quotations Brian Woodrow L.Ed.2d Jackson; Riley; 553.31(a) (third sentence) Bruce Fred simply Vashon Section Scott; Danforth; Sammy Page; Dean attempts rewrite the *7 Peters; Grayling Mitchell; so, James point. doing Act on this And DOL Saucedo; Anthony Dacayona; Carlos Supreme prece- ignores established Court al., Salas, Plaintiffs-Appel- et Coal, Charles In R.R. Co. dent. Tennessee Iron & lees, v. Muscoda No. Local 321 U.S. (1944),3 88 L.Ed. Su- analyzed this preme portion Court HUNTER, Melvin E. De- aka/Jon legislative language section Morales; Craig Nelson; Grenda noted that the Act Court “defines word Ernst, Defendants-Appellants, ‘to ‘employ’ permit include suffer or ”

work.’ 64 S.Ct. 698. Then, definition, Jerry applying McDaniel; Reynolds; the Court Robert Rob- Penate; Robinson; stated section ert Mark Samuel Congression- Mahhoney; Stephen Mayberg; indicative of “necessarily Anita regular Judd; Hughes; Vess; intention guarantee al either Michael Jim 262, which, response judicial among things, interpretation 3. even more FLSA, narrowly compensable Congress passed the activities. See 1947 Portal-to- defined Act, Pay §§ codified as U.S.C. 251- 29 U.S.C. 254. Portal