*2 Before RANDALL and HIGGINBOT HAM, BUCHMEYER,* Judges, Circuit Judge. District HIGGINBOTHAM, E. PATRICK Circuit Judge: Paul, Travis a company airplane pilot, Randall, Judge, Circuit dissented and brought against this suit Equip- Petroleum opinion.
filed Co., ment Tools employer, former seek- ing pay allegedly overtime due under the Fair Labor Standards Act. 29 U.S.C. trial, 201-219. After a bench the dis- §§ trict court concluded that Paul was em- ployed in a professional bona fide capacity meaning within the 213(a)(1) of 29 U.S.C. § regulations and its and therefore was ex- empt provisions from thе overtime Taking judicial FLSA. notice of Federal Aviation Administration detail- ing the level skill needed to fly PETCO’s airplane, we affirm the district de- court’s employed termination that Paul was in a professional capacity. 12, 1979,
On January PETCO hired Travis Paul to fly company one its airplanes, a twin-engine, turboprop King Air Beechcraft B100 Lafayette, located in Louisiana. Paul experienced was an long and had living pilot. earned his as a commercial England’s to fly Flying Since Mobile, Alabama in Service Paul logged had flying 4900 hours of time as pilot-in-command of types numerous of air planes. He held an transport pilot airline certificate, certificate, instructor rating, instrument and was authorized to both fly single multiengine airplanes. PETCO, At Paul not flew only plane it, it, also but cleaned stocked prepared reports of expenses flight operations, and maintained charts and manuals. He monthly salary received a ranging from $2081. Ltd., Hawley Schеxnayder, & Nelson J. Jr., La., plain- Paul
Schexnayder, Lafayette, resigned September for from PETCO on brought then tiff-appellant. against He suit seeking compensation overtime Davidson, Meaux, & Roy, Sonnier L. Lane liquidated damages under the FLSA La., Roy, Lafayette, defendant-appellee. under penalty wages Louisiana law. PET- defenses, including asserted numerous CO the claim was a * Texas, Judge sitting by designation. District District Northern employment if the of his only overtime conditions
thus was from the FLSA’s set in 29 day satisfy requirеments three bench forth During the provisions. If, however, trial, 541.3(a)-(e). on the an em primarily focused C.F.R. parties time,” salary on accuracy reported “duty ployee weekly receives minimum $250, employer’s he plan, and contention that company of a bonus existence regarding exempt may understanding measured the shorter on Paul’s *3 The dis- streamline test in required he to work. described 29 C.F.R. hours issues; 541.3(e), undisputed not reach these it .315. Because it is trict court did §§ from exemрt weekly, instead that Paul was that Paul received at least the ruled employed properly because he was a district court resorted to the the FLSA ap- capacity. Paul streamline test. professional bona fide claiming the evidence peals, record test, Under this PETCO must show that finding. not support does this per- consists the “primary duty of knowledge work of requiring formance of its over exempts
The FLSA
from
type
an
in a field of science or
advanced
provisions “any employee employed
time
learning
which
requiring
...
includes work
administrative,
executive,
a bona fide
or
the consistent exercise of discretion and
professional
29 U.S.C.
capacity....”
“Primary
judgment.”
544.3(e), .315.1
§§
213(a)(1). The
bears the bur
employer
§
major part,
duty” means that “the
or over
of proving exempt
Usery
den
status.
v.
See
percent,
employee’s
50
must be
1191,
time”
Inc.,
Drugs,
Associated
538 F.2d
1194
spent performing exempt work.
541.103.
addition,
§
(5th Cir.1976).
exemptions
In
the
part
Activitiеs that are “an essential
of and
narrowly
contained in
Act are
be
necessarily
professional
incident
to”
Bren
against
employer.
construed
See
Exempt
exempt.
work are also
541.307.
Service, Inc.,
§
v.
Propane
nan
Greene’s
Gas
involving
learning
work
is de-
advanced
1027,
(5th Cir.1973).
479 F.2d
While
requires
scribed in
541.302. Such work
§
uncertainty
there
be
in the deference
may
type
gener-
of an
knowledge
advanced
given
be
a trial court’s ultimate conclu
ally
high
cannot be attained at the
school
status,
of
Pa
exempt
sion
see Jacksonville
level. This
must be
field
McComb,
knowledge
in a
of
per
(5th
Co. v.
e.g., Continental Oil Co. 634 F.2d demic from an apprentice- education and Cir.1981). (5th See also Robi ship, training performance and from Material, Inc., cheaux Radcliff F.2d manual, mental, physical routine or Cir.1983). 666 (5th processes.” Finally, a § 541.3(aXl). of professional Determination status is “prime professional characteristic of work is guided regulations issued the Secre- the fact that the employee apply does tary of Labor the Administrator special or talents with discretion Wage-Hour pursuant congres- Division judgment. Purely or rou- mechanical regulations permit sional direction. These not professional.” tine work is 541.- “long an to use either a test” employer 305(b). meet its “streamline test” to burden Paul, In proving employee’s professional applying regulations status. an test, first long may Under a court decide district court found that Paul’s work required the exercise of employee professional that an discretion instructor, flight Paul, recognize expressly work in aircraft like also professiоnal exemption teaching professional falls artistic fields is within course, inap- 541.302(g)(2). teachers. provisions, nature. These are C.F.R. § plicable Nevertheless, here. we note that an noted, judgment. showing court “He made the CO made no that his “numerous fly final of whether or not to decision F.A.A. licenses” were fly needed to he chose the most efficient route. safest and company plane. A problem second is that Airborne, consistently exposed he was prеsented PETCO no evidence regarding periods might wherein at moment he the level of skill training needed to judgment, to make an instant required obtain those licenses. While we agree with drawing knowledge acquired through on these are indeed the relevant We find that these find- training.” inquiries and that without the explanatory erroneous. Two ings clearly of fact are aid controlling regulations the “evi- testified that had the they dence” of Paul’s level training scarce, authority possible sole to decide whether we nonetheless find that Paul was engaged weather disturbances require would cancel- profession” a “learned and thus was em- lation of the alteration of ployed in a capacity. *4 route. testified They they also that had to Paul’s first contention is that PETCO decide whether a particular plane was “air- failed to show he needed his airline trans- worthy.” decisions are not “purely Such port pilot certificate single with and mul- mechanical or routine” but involve consider- tiengine ratings class the fly company able discretion and judgment. This case is plane. suggests He thus any that skill and thus materially different from Martin v. training needed to obtain this license is Service, Inc., Penn F.Supp. Line 1387 irrelevant pro- determination of his (W.D.Pa.1976), on which Paul relies. The fessional status. It is true that the record helicopter court there held that pilots hired nowhere explicitly states whether an ATP fires, brush, to control spray forest and take certificate “required” to fly PETCO’s air- aerial did not photographs req- exercise the show, plane. however, It does that Paul in uisite discretion judgment they because job application represented that he had were “merely highly trained technicians” rating. this There was no direct evidence who could not make decisions without con- rating the was a prerequisite for the sulting superior. with their Id. at 1390. In job. having But been hired as pilot contrast, Paul had sole authority to make level, a listed skill Paul is in no problems decisions about to which there now suggest less was “required” by were often recognized no or established an- simply PETCO required because the law swers. 541.207. See § less. Regardless, Paul could not legally fly The district court also found that Paul the aircraft with passengers engaged profession” a “learned distance without a pilot certifi- within the meaning 541.3(a)(1) § rating, cate and an instrument see 14 C.F.R. 541.302. It reasoned: § 61.129, .139, a classification one notch § be- Ability snap judgments to make based on low an ATP certificate. See C.F.R. unexpected flight conditions is not an “in- 61.171. § herent talent” but is attained after spe-
cialized required instruction be- Paul’s second contention is that PETCO fore being licensed.... Paul’s numerous offered no specific evidence of the level of F.A.A. licenses for highly technical air- skill and training required to obtain such craft are the best evidence of his ad- licenses. This deficiency problem, is not a knowledge acquired by study vanced and however, because we may judicial take no- training and to this Court are the func- tice of Federal Aviation Administration equivalents tional of the advanced degree regulations establishing requirements prima which is a facie showing profes- for these licenses. Judicial notice of such sional status regulations. under the regulations is expressly by authorized argues finding this is flawed 1507 and may U.S.C. be taken an two respects. deficiency One is that PET- appellate 201(f).2 court. Fed.R.Evid. notice, not, taking judicial lengths gap Company’s In this we do to fill in suggests, “go the dissent to considerable demonstrating requisite In reg- experience. determine whether thus must
We have re- must knowledge, applicant for detailing requirements ulations logged Paul had home ground instruction ratings establish ceived (IFR), in a field of type flight advanced rules knowledge of an learn instrument study to aby acquired that was weather use of aviation navigation, IFR instruction intellectual specialized forecasts, opera- safe and the reports and they do. We conclude that study. instrument weather airplanes tion of under pass must a writ- applicant The conditions. a com requirements threshold The subjects. The examination on these ten proof include pilot mercial certificate training is obtained requisite instrument certifi applicant private holds a an authorized old, through instruction is able to cate, years than 18 is more instructor, certify appli- that the English, and is who must read, and understand speak, must applicant to control and maneuver medically competent certified. cant aeronau demonstrate extensive thereafter reference to instru- airplane solely by experi knowledge, proficiency, tical ments, navigation, perform to use IFR requisite demonstrating In ence. cross-country fly approaches, instrument have taken must knowledge, applicant conditions, respond to emer- in IFR a course of completed ground instruction pass then must applicant gencies. to learn the private study these skills. Fi- test to demonstrate pilots, governing commercial logged have applicant nally, requirements reporting the accident time, in- 40 hours of pilot flight hours of *5 Board, ba Safety Transportation National time, of instrument and 15 hours strument and flight principles, and aerodynamics sic 61.65. instruction. C.F.R. flight § See appli airplane operations. numerous flying that Contrary argument to Paul’s test on these pass cant also must a written skill, regu- mechanical art or only is a is obtained subjects. Flight proficiency that a with a com- lations demonstrate flight by instruction an authorized through rating instrument in- mercial license and certify This instructor must instructor. of science or “knowledge has in a field deed perform to applicant prepared that is regulations make learning.” As these duties, critically slоw flights at preflight acquire extensive knowl- plain, pilot a must takeoffs and crosswind airspeeds, normal airplane regulations, edge aerodynamics, take landings, performance and maximum operations, procedures, instrument airplane emergency proce landings, and and offs charts, and weather forecast- aeronautical must be demon proficiency dures. This of the FAA’s ing. An examination official Fi flight tests. through strated oral and supplement regu- testing manuals that have a total of 250 nally, applicant 100 hours in detail the flight including greater time demonstrates in hours of lations aircraft, flight instruc 50 hours level of aeronautical powered high tion, pilot-in-command 100 hours of example, and must achieve. For applicant an 61.121 — .141. time. C.F.R. §§ See Airplane Pilot Writ- the FAA’s Commercial Guide, (1979) contains ten Test AC 61-71B license, a commercial Having obtained a and 120 page study six outline a detailed for hire fly passengers pilot who desires require sample questions pages nautical miles or in of more than 50 flights varied nature. knowledge of a wide and instrument an night also must obtain Rating Instrument Written Similarly, the 61.129(a). Like the rating. See 14 C.F.R. § Guide, (1977) nearly 61-8D outlines Test AC an in- requirements, licensing commercial ranging from “unusual sixty major topics applicant rating requires strument factors.” skill, “physiological conditions” to knowledge, and demonstrate extensive regulations. essary lengths” rep- proof.” to our consideration These “considerable they digress duty apply here because are extant We need not more than resent no our by respect, properly the rule and regulations. before us at least neither 44 law and In this legal simply 201(f) arguably citable material. if not as nec- statute U.S.C. 1507 nor F.R.E. is § (emphasis original). abstract 1-2 The in- topics might not as Id. at While these medicine, requires integration struction thus an it esoteric as those in law knowledge, reasoning, physical abstract they are less com- argue is difficult to nurses, skill.3 account- those learned plex than are
ants,
who
re-
computants
and actuarial
log
an
also must
applicant
The fact that
profes-
“learned
employees in
garded as
mean,
does
flying
considerable
time
541.302(e)(1).
sions.” See
C.F.R. §
pilot’s knowledge
that a
is
suggests,
general appren-
a
only “through
obtained
this knowl-
persuaded
We also are
training
learning-by-
ticeship, on-the-job
necessity, “customarily
edge
today, by
is
Whatever the circumstanc-
doing method.”
specializ-
course of
acquired by prolonged
a
barnstorming days,
suggestion
that a
es
as dis-
study
instruction
ed intellectual
multi-million dollar turbo-
pilot of a modem
educa-
from a
academic
tinguished
experience
aircraft can obtain
prop
from
an
apprenticeship
tion and from
and without su-
through experimentation
men-
of routine
training
performance
of a
startling.
is
The foundation
pervision
tal, manual,
Under
physical processes.”
extensive,
indisputably
pilot’s experience
for a
regulations,
applicant
the FAA
formal,
specialized training.
expe-
His
rating is
license and instrument
from
quality
rience is thus of a different
from an autho-
required
log
who
many employees
industry
that of
certify
who must
rized
instructor
positions by their natural
high-level
rise to
array
in an
competent
applicant
sense,
longevity
with-
ability, common
relating
flight proficiency.
areas
See
As the
study.
out the aid of a course
ap-
when the
61.65(c),
Only
.127.
C.F.R. §
note, these individuals are not
is he
obtained this instruction
plicant has
29 C.F.R.
541.-
professionals.
tests.
requisite flight
eligible to take
302(e)(2).
contrast,
In
like Paul at-
instruction oc-
61.39. Much of this
See §
tain their status after a
is a
of tutorial
teach-
specie
curs aloft and
study that cer-
instruction and
specialized
description
ing,
as demonstrated
fairly described as an intellectual
tainly is
Handbook, AG
Flight Training
FAA’s
*6
endeavor,
campus.
from
despite its distance
(1980):
61-21
the FAA
аnd
Aided
training period, the instructor
During the
handbooks,
per
that Paul
persuaded
we are
flight.
before the
explain
will
each lesson
work. The
exempt professional
be
include what will
explanation
This
will
formed
Division,
interpreta
whose
done,
Wage and Hour
how it
done,
it should be
and
why
Boutell
“great weight,”
is not
tions are entitled
point that
Any
should be done.
470-71,
463,
S.Ct.
By asking
Walling,
U.S.
questioned.
should be
clear
has,
631, 635-636,
(1946),
with
this case that would enable us to anything type
determine whether has, theoretically
that Paul virtue
certificates, “customarily acquired by
prolоnged specialized course of intellectual 541.- study.”
instruction and 29 C.F.R. § Eugene THEZAN, V. Plaintiff-Appellant, 302(d) added). I re- (emphasis therefore dissent. spectfully OVERSEAS CORPORA- MARITIME employer carry Since an the burden al., TION, Defendants-Appellees. et proving exemption applies, that an concedes) (as majority since PETCO has No. 82-3334 Summary presented “customarily no evidence on the Calendar. has acquired” question, majority had United States Court of Appeals,
go lengths to fill in the gaps considerable Fifth Circuit. Company’s proof. majority What the has done is to show what a with Paul’s June pass FAA certificates must know to examinations; Rehearing 11, 1983. Denied sophisti- Aug. from the
requisite complexity knowledge, cation and of that necessarily infers that it must majority “customarily acquired by specialized intellectual validly If it were study.” possible simply
draw this inference Code and the various test Regulations
Federal FAA, Wage
guides published by the
Hour Division would have done so now. *8 sister, virtually complete litigation dissenting if this absence of be- 6. With deference to our profes- employers support finding of tween would be ab- evidence will not such ought upset ruptly We to be hesitant sional status it would be most difficult to find halted. particularly ratings expectations, when like Paul’s to such settled differently, undoubtedly they encouraged by professional. Expressed we been be a have employer interpretative of what evidence the of the law’s administra- are uncertain dissenting ought to have offered. If the here tor. adopted but the view were we have little doubt