Parth v. Pomona Valley ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUISE PARTH, individually and on 
behalf of all others similarly
No. 08-55022
situated,
Plaintiff-Appellant, D.C. No.
v.  CV-06-04703-
MMM
POMONA VALLEY HOSPITAL MEDICAL
OPINION
CENTER, a California corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
April 13, 2009—Pasadena, California
Filed October 22, 2009
Before: William C. Canby, Jr., Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
14227
PARTH v. POMONA VALLEY HOSPITAL 14231
COUNSEL
Frank J. Coughlin, Santa Ana, California, for the plaintiff-
appellant.
Douglas R. Hart and Beth Anne Scheel, Los Angeles, Califor-
nia, for the defendant-appellee.
OPINION
N.R. SMITH, Circuit Judge:
When an employer changes its shift schedule to accommo-
date its employees’ scheduling desires, the mere fact that pay
rates changed, between the old and new scheduling schemes
in an attempt to keep overall pay revenue-neutral, does not
establish a violation of the Fair Labor Standards Act’s
(“FLSA’s”) overtime pay requirements.
1. BACKGROUND
Pomona Valley Hospital Medical Center (“PVHMC”) is a
hospital located in Pomona, California that has at all relevant
times been an “employer” subject to the FLSA. The FLSA
requires an employer (such as PVHMC) to pay its employees
at one-and-one-half times the employees’ “regular rate” for
any “employment in excess of eight hours in any workday and
in excess of eighty hours in [a] fourteen-day period.” 29
U.S.C. § 207(j).
Prior to 1989 or 1990, PVHMC scheduled its nurses to
work almost exclusively in 8-hour shifts. However, many
PVHMC nurses preferred working 12-hour shifts in order to
have more days away from the hospital. The nurses, therefore,
requested 12-hour shift schedules. In response to these
requests, PVHMC developed and implemented an optional
14232 PARTH v. POMONA VALLEY HOSPITAL
12-hour shift schedule and pay plan in 1989-90. The pay plan
provided nurses the option of working a 12-hour shift sched-
ule in exchange for receiving a lower base hourly salary (that
at all times exceeded the minimum wage set forth by the
FLSA) and time-and-a-half pay for hours worked in excess of
eight per day. The result: nurses, who volunteered for the 12-
hour shift schedule, would make approximately the same
amount of money as they made on the 8-hour shift schedule
(while working the same number of hours and performing the
same duties). After PVHMC made the 12-hour shift schedule
available, many PVHMC nurses (though not all) opted to
work 12-hour shifts.
In 1993, Louise Parth worked as a nurse in PVHMC’s
emergency room (“ER”). The nurses in PVHMC’s ER
(including Parth) voted to implement 12-hour shifts. Parth
favored the 12-hour shift format, because it provided her more
flexibility in her personal schedule, enabling her to (1) care
for her mother, (2) pursue a second nursing job at other facili-
ties, and (3) pick up additional shifts at PVHMC. After voting
to implement 12-hour shifts in the ER, Parth subsequently
entered into a voluntary agreement with PVHMC that reduced
her base hourly wage rate from $22.83 to $19.57 in exchange
for the 12-hour shift schedule. Parth has worked the 12-hour
shift schedule without interruption since 1993.
In 2003, the PVHMC nurses voted to unionize. Accord-
ingly, PVHMC and the nurses’ certified bargaining represen-
tative, Service Employees International Union, Local 121
(“Local 121”), negotiated a collective bargaining agreement
(“CBA”) over a nine-month period. Parth was a member of
Local 121’s Bargaining Committee and therefore attended
most of the negotiation sessions. The resulting agreement pro-
vided that PVHMC would increase all nurse salaries—for 8-
hour shift employees and 12-hour shift employees alike— by
10% during the CBA’s first year, followed by 5% across-the-
board increase for the second and third years. The CBA also
reaffirmed PVHMC’s practice of paying nurses working the
PARTH v. POMONA VALLEY HOSPITAL 14233
12-hour shift schedule a lower base hourly rate than nurses
working 8-hour shifts.
The CBA set the base hourly rate for Parth’s position at
$34.644 (the “base rate”). When Parth works a weekday
night, her hourly rate is $39.84 (the “weeknight base rate”).
When she works a weekend night, her hourly rate is $46.929
(the “weekend night base rate”). Anytime Parth works more
than 8 hours in a shift or 80 hours in a 14-day work period,
she receives 1.5 times her “regular rate” of pay for those
hours. If Parth works beyond 12 hours in a shift, she is paid
“double-time”—double the “regular rate” of pay. PVHMC
calculates the “regular rate” of pay by multiplying the total
number of hours Parth works at each of the corresponding
base rates (base rate + weeknight base rate + weekend night
base rate), adding those numbers together, then dividing the
total base rate pay by the total number of base rate hours
worked. The “regular rate” of pay is therefore something
more than the base rate of pay and will vary according to the
number of hours worked at the various base rates. This
method is known as the “weighted average method” of deter-
mining the “regular rate.” Gorman v. Consol. Edison Corp.,
488 F.3d 586, 596 (2d Cir. 2007). After PVHMC calculates
the “regular rate” of pay, it multiplies that number by 1.5 to
arrive at the overtime rate.
In 2004, all Local 121 members employed at PVHMC (and
in good standing with the union) voted on the proposed CBA
after being advised of its contents and being provided the
opportunity to review its provisions. After Local 121 ratified
the CBA, Local 121 representatives and PVHMC executed
the agreement. Parth was a signatory to the agreement. She
also testified during her deposition that she was aware the
CBA continued PVHMC’s pay rate practices. Parth continued
to work the 12-hour shift schedule at PVHMC.
Just two years later, Parth filed a putative class action Com-
plaint against PVHMC. She alleged that PVHMC’s use of dif-
14234 PARTH v. POMONA VALLEY HOSPITAL
ferent base hourly rates violates the FLSA in that it denies
unionized employees overtime pay, to which they are statu-
torily entitled. The district court found that Parth met the
requirements for conditional class certification to bring the
FLSA claim. PVHMC then filed a motion for summary judg-
ment, asserting that its pay practices comply with the FLSA.
The district court found that Parth did not adduce evidence or
law sufficient to support her claims and therefore granted
PVHMC summary judgment. We affirm.
II. STANDARD OF REVIEW
We review de novo the district court’s order granting sum-
mary judgment. See, e.g., Universal Health Servs., Inc. v.
Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). On review,
we must determine, viewing the evidence in the light most
favorable to Parth, “whether there are any genuine issues of
material fact and whether the district court correctly applied
the [relevant] substantive law.” Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004). “[T]he plain lan-
guage of Rule 56(c) mandates the entry of summary judgment
. . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. DISCUSSION
Parth argues that PVHMC violated the FLSA by creating
a pay plan that pays nurses working 12-hour shifts a lower
base hourly rate than nurses who work 8-hour shifts. In sup-
port of her argument, Parth contends that: (A) PVHMC can-
not reduce the base pay for nurses working the 12-hour shift,
(B) the 12-hour base pay rate is an “artifice” designed to
avoid the FLSA’s overtime and maximum hours require-
ments, and (C) PVHMC cannot justify the base hourly pay
rate differences between the 8-hour and 12-hour shifts,
PARTH v. POMONA VALLEY HOSPITAL 14235
because nurses working both shifts perform the same job
duties.
A.
Parth asserts that PVHMC’s pay plan violates the FLSA,
because it was designed to “make overtime payments cost
neutral,” and that such a scheme is lawful only when imple-
mented “before the employer was subject to the FLSA.” We
disagree. The 12-hour shift scheduling practice was first initi-
ated at the nurses’ request. The 12-hour shift scheduling prac-
tice was then memorialized in a collective bargaining
agreement as a result of negotiations between Local 121 and
PVHMC (again initiated at the nurses’ request). The parties
do not dispute that the wages paid under the pay plan are
more than the minimum wages under federal law. We find no
reason to invalidate the agreement between the parties. There
is no justification in the law and no public policy rationale for
doing so. Parth also failed to cite (either before the district
court or on appeal) any authority to suggest that a voluntary
base rate wage reduction made in exchange for a 12-hour shift
schedule was unlawful.
[1] The FLSA requires employers to pay employees, who
work more than 40 hours in a work week, one and a half times
the employees’ “regular rate” of pay. 29 U.S.C. § 207(a)(1).
The Supreme Court interprets “regular rate” to mean “the
hourly rate actually paid the employee for the normal, non-
overtime workweek for which he is employed.” Walling v.
Youngerman-Reynolds Hardwood Co, Inc., 325 U.S. 419, 424
(1945). Congress’s purpose in enacting the FLSA “was to
protect all covered workers from substandard wages and
oppressive working hours.” Barrentine v. Arkansas-Best
Freight System, Inc., 450 U.S. 728, 739 (1981). See also
Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir.
1999). Under the FLSA, employers and employees are gener-
ally “free to establish [the] regular [non-overtime] rate at any
point and in any manner they see fit,” “[a]s long as the mini-
14236 PARTH v. POMONA VALLEY HOSPITAL
mum hourly rates established by Section 6 [of the FLSA] are
respected.” Youngerman-Reynolds, 325 U.S. at 424. Though
our Circuit has never been asked to determine whether an
employer subject to the FLSA may alter the “regular rate” of
pay in order to provide employees a schedule they desire, we
conclude that such an arrangement does not contravene the
FLSA’s purpose.
[2] Soon after Congress enacted the FLSA, but before it
became effective, many employers altered their compensation
schemes—by lowering base hourly rates—to ensure that they
paid employees the same overall wages after complying with
the FLSA’s overtime requirements. See, e.g., Walling v. A. H.
Belo Corp., 316 U.S. 624, 628-30 (1942). In Belo, the
Supreme Court examined these compensation practices and
held that, even when the employer’s purpose in lowering
hourly base rates “was to permit as far as possible the pay-
ment of the same total weekly wage after the [FLSA] as
before. . . . [N]othing in the [FLSA] bars an employer from
contracting with his employees to pay them the same wages
that they received previously, so long as the new rate equals
or exceeds the minimum required by the [FLSA].” Id. at 630.
The Eleventh Circuit followed Belo’s holding in a case
involving a municipal employer. See Wethington v. City of
Montgomery, 935 F.2d 222 (11th Cir. 1991). “When passed
in 1938, the FLSA did not apply to any state or local employ-
ers.” Id. (citing Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 533 (1985)). Congress expanded the FLSA’s
definition of “employer” in 1974 to include municipalities. In
Garcia, the Supreme Court reversed its previously-established
precedent and held that state and local governments could be
liable for FLSA violations. Wethington, 935 F.2d at 224-25.
Given the potential for sudden liability, Congress delayed
application of the FLSA to municipal employers until April
15, 1986. Id. At 225 (citing Fair Labor Standards Amend-
ments of 1985, Pub. L. No. 99-150, § 2(c), 99 Stat. 787, 788).
Accordingly, municipal employers such as the City of Mont-
PARTH v. POMONA VALLEY HOSPITAL 14237
gomery (the “City”) became subject to the FLSA as of April
15, 1986.
In Wethington, the City endeavored to create and imple-
ment a “budget-neutral” plan that would ensure FLSA com-
pliance before April 15, 1986. Wethington, 935 F.2d at 225.
Prior to Garcia, the City paid its fire fighters on a salary basis,
which covered “a cycle of three pay periods, each involving
varied hours over 14 days: one 104-hour period, one 112-hour
period, and one 120-hour period. For this 42-day, 336-hour
cycle, a typical fire fighter would receive $2,208.45. The
actual working time within these periods consisted of rota-
tions of duty in which the fire fighters worked 24 hours, were
off duty for 48 hours, worked another 24 hours, and so on.”
Id. This scheme did not provide for overtime, so in June 1985,
the City adopted a new hourly wage scale to comply with the
FLSA. Id.
The City determined that under the FLSA, 316 of the 336
hours in the 42-day cycle would be considered regular hours,
while 20 would be considered overtime. Id. In order to create
a new, yet “budget-neutral,” pay plan that incorporated time-
and-a-half overtime pay, the City, “for the purpose of calcula-
tion, increased the [20] overtime hours by 50%. [It] then took
the fictitious total hours of 346 (316 regular plus 30 adjusted
overtime) and divided them into the fire fighters’ total pay for
that period to produce a per-hour wage of $6.3828.” Id. The
revised system ensured that City fire fighters would work the
same hours and shifts as before, but would receive $6.3828
per hour for 316 regular hours, and $9.5742 ($6.3828 multi-
plied by 1.5 as required by the FLSA) per hour for 20 hours
of overtime, totaling $2,208.4488. Id. “Therefore the total sal-
ary and total hours did not change. The payment system and
the equivalent hourly rates of pay, however, did change.
Under the prior, salary system, the converted hourly rate
amounted to $6.57. Under the revised system, the effective
rate was decreased to $6.38.” Id. The fire fighters sued the
City, making an argument similar to Parth’s.
14238 PARTH v. POMONA VALLEY HOSPITAL
Citing Belo, the Eleventh Circuit held that, if a new pay
plan “actually employed is valid under the [FLSA], the fact
that the regular rate adopted prior to the [FLSA’s] effective
date produces a total pay no greater than the total pay under
a prior system is not enough to establish a violation of the
FLSA.” Id. at 229. The court “read the Belo language to sup-
port the City’s argument that it is not a violation of the
[FLSA] to reduce, prior to the effective date of the [FLSA],
the hourly rate paid employees in order to avoid greater pay-
ments upon application of the FLSA.” Id.
We recognize that the Belo and Wethington cases dealt with
employers creating cost-neutral pay plans that lowered
employees’ base hourly rates before becoming subject to the
FLSA. However, there is no Supreme Court or Ninth Circuit
case that says whether an employer can or cannot do so while
subject to the FLSA. Courts around the country have dealt
with similar matters, with conflicting results. Compare, e.g.,
Conner v. Celanese, Ltd., 428 F. Supp. 2d 628, 637 (S.D. Tex.
2006) (holding that “an employer can comply with the FLSA
by reducing the ‘regular’ wage paid to its employees and pay
overtime at one and one-half times the reduced regular rate
such that the total pay to the employees remains the same”),
with Rhodes v. Bedford County, Tenn., 734 F. Supp. 289, 292
(E.D. Tenn. 1990) (“The court is of the opinion that defen-
dant’s implementation of [a revised pay plan similar to
PVHMC’s] constitutes a scheme intended to avoid the over-
time requirements of § 7. [Even though it] result[ed] in the
workers being paid the same amount for the same number of
hours worked both before and after the changeover. This was
accomplished by artificially altering plaintiffs’ ‘regular
rate.’ ”).
[3] Because this is a case of first impression for us, we
agree with the district court’s approach and use Supreme
Court precedent on pre-FLSA pay plan alterations for guid-
ance on how to proceed under the facts before us. In Belo, 316
U.S. at 630, the Supreme Court stated that “nothing in the
PARTH v. POMONA VALLEY HOSPITAL 14239
[FLSA] bars an employer from contracting with his employ-
ees to pay them the same wages that they received previously,
so long as the new rate equals or exceeds the minimum rate
required by the FLSA.” Further, Youngerman-Reynolds, 325
U.S. at 424, states that “[a]s long as the minimum hourly rates
established by Section 6 [of the FLSA] are respected, the
employer and employee are free to establish this regular rate
at any point and in any matter they see fit.” The PVHMC pay
plan conforms with this precedent.
[4] Additionally, we look to the purpose of the FLSA,
which is “to ensure that each [covered] employee . . . would
receive ‘[a] fair day’s pay for a fair day’s work’ and would
be protected from the evil of ‘overwork’ as well as ‘under-
pay.’ ” Williamson v. Gen. Dynamics Corp., 208 F.3d 1144,
1150 (9th Cir. 2000) (quoting Barrentine, 450 U.S. at 739).
The pay practice sought by PVHMC’s nurses, and agreed to
by Parth, Local 121, and PVHMC, ensures that employees
who work beyond eight hours in a day receive time-and-a-half
for their efforts. It also ensures that employees who work
more than twelve hours in a day receive “double-time” pay.
We therefore conclude that the pay practice protects employ-
ees from the evils of overwork and underpay, and properly
incentivizes PVHMC from overworking its nurses.
[5] Accordingly, we conclude that the arrangement between
Parth and PVHMC does not violate the FLSA, because it is
not prohibited under the statute, and it does not contravene the
FLSA’s purpose. Parth cannot cite any relevant case law to
support her argument that PVHMC cannot respond to its
employees’ requests for an alternative work schedule by
adopting the sought-after schedule and paying the employees
the same wages they received under the less-desirable sched-
ule. To us, PVHMC’s actions seem perfectly reasonable, were
requested by the nurses (who work the schedules), and are the
result of a bargained-for exchange between the hospital
administration and Local 121.
14240 PARTH v. POMONA VALLEY HOSPITAL
B.
Parth also argues that the 12-hour shift pay plan is essen-
tially an artifice to avoid paying overtime. The district court
examined this argument. It noted that Parth could cite “no
authority for the proposition that these facts show the 12-hour
rate was a subterfuge that violated the FLSA.” We agree.
Parth’s argument hinges on two issues: first, whether
PVHMC’s pay plan contravenes the FLSA’s purpose; second,
whether the revised “regular rate” is unrealistic and artificial.
[6] Employers cannot lawfully avoid the FLSA’s overtime
provisions “by setting an artificially low hourly rate upon
which overtime pay is to be based and making up the addi-
tional compensation due to employees by other means.” 29
C.F.R. § 778.500(a). The FLSA also prohibits employers
from adopting “split-day” plans in which the employee’s
hours are arbitrarily divided in such a way as to avoid over-
time payments. Walling v. Helmerich & Payne, Inc., 323 U.S.
37, 40 (1944); 29 C.F.R. § 778.501. Both types of plans work
in a manner so that employees do not earn overtime compen-
sation, regardless of how many hours they worked.
An employee’s “regular rate” of pay is “the hourly rate
actually paid the employee for the normal, non-overtime
workweek for which [s]he is employed.” Youngerman-
Reynolds, 325 U.S. at 424. See also United States v. Rosen-
wasser, 323 U.S. 360, 363-64 (1945) (holding that “Section
7(a) [of the FLSA] refers to a ‘regular rate’ which we have
defined to mean ‘the hourly rate actually paid for the normal,
non-overtime workweek.’ ” (quoting Helmerich & Payne,
Inc., 323 U.S. at 40)). PVHMC’s regular rate for 12-hour shift
nurses is the rate it pays for the first eight hours of a 12-hour
shift. The pay plan does not fall under either of the prohibited
categories discussed above.
Parth contends that PVHMC’s regular rate for nurses work-
ing the 12-hour shift is artificial, and therefore unlawful, rely-
PARTH v. POMONA VALLEY HOSPITAL 14241
ing on Youngerman-Reynolds to support her argument.
Youngerman-Reynolds holds that employers cannot skirt the
FLSA’s requirements by creating a new payment scheme and
corresponding lower regular rate that does not reflect the eco-
nomic reality of the employees’ work. Youngerman-Reynolds,
325 U.S. at 425. In Youngerman-Reynolds, an employer paid
its employees a piece rate determined by the number of
boards they ricked and stacked. Id. at 420-21. When generat-
ing the new hourly rate from which it would base overtime
compensation under the FLSA, the employer created an arbi-
trary per-hour piece rate that did not reflect the actual rate at
which its employees stacked and ricked wood. Id. at 421-23.
The Supreme Court held that the scheme violated Congress’s
goals in enacting the FLSA—“inducing the employer to
reduce the hours of work and to employ more [workers],” and
“compensating the employees for the burden of a long work-
week.” Id. at 423-24.
PVHMC’s plan, however, does not impinge on Congress’s
goals. It provides employees more scheduling flexibility,
allows them to spend less time commuting to work (because
they spend fewer days at work), and ensures that PVHMC
does not retain an incentive to ask the nurses to work longer
hours.
[7] Parth also asserts that the regular rate is “unrealistic”
and “artificial,” in violation of the Supreme Court’s admoni-
tion in Helmerich & Payne, Inc., 323 U.S. at 42, that a regular
rate cannot be derived “in a wholly unrealistic and artificial
manner.” See also Adams v. Dep’t of Juvenile Justice of New
York, 143 F.3d 61, 67-68 (2d Cir. 1998) (stating that the regu-
lar rate may not be set in a “wholly unrealistic and artificial
manner” that does not reflect actual practice). The Depart-
ment of Labor has provided regulations to guide employers
who wish to ensure their regular rates are not deemed artifi-
cial or unrealistic. See 29 C.F.R. § 778.500(a) (“[T]he over-
time provisions of the act cannot be avoided by setting an
artificially low hourly rate upon which overtime pay is to be
14242 PARTH v. POMONA VALLEY HOSPITAL
based and making up the additional compensation due to
employees by other means”). Parth produced no evidence to
show that the regular rates memorialized in the CBA were
artificially low, or that PVHMC was attempting to set rates in
a manner that would relieve it of the obligation to pay time-
and-a-half whenever an employee worked more than eight
hours in a day.
[8] Moreover, Parth and the other nurses are paid overtime
under the PVHMC plan. Their overtime wages are calculated
according to the standards set forth in 29 C.F.R. § 778.115
and the CBA. Parth appears to take issue with the manner by
which her “regular pay” is calculated, and basically argues
that instead of using the weighted average method of deter-
mining the regular rate, PVHMC should be required to use the
“average blended rate” of pay. The “average blended rate” is
the total pay worked by a nurse in a 12-hour shift, divided by
12. To the extent Parth’s argument is that average blended
rate calculation is the only permissible “regular rate” of pay
under the FLSA, we reject it. The weighted average method
of calculation is not prohibited by the FLSA, and has been
upheld by other circuits. See, e.g., Gorman, 488 F.3d at 596
(“This Court has already validated the weighted average
method of determining the regular rate, which we described
as ‘properly calculated by adding all of the wages payable for
the hours worked at the applicable shift rates and dividing by
the total number of hours worked.’) (quoting Brock v. Wila-
mowsky, 833 F.2d 11, 14 (2d Cir. 1987)).
[9] The district court noted that “Parth proffer[ed] no argu-
ment or support for the proposition that the regular rate for the
12-hour [nurses] was not properly determined, or that over-
time pay was not properly calculated using the pay rates set
out in the CBA.” On appeal, Parth does not challenge the cal-
culation of the overtime rate, except to say that the regular
rate upon which it is based is impermissible. Accordingly, we
conclude that Parth has not presented any evidence or con-
vincing authority to suggest that PVHMC’s pay plan contra-
PARTH v. POMONA VALLEY HOSPITAL 14243
venes Congress’s goals in enacting the FLSA or is an artifice
to avoid paying overtime.
C.
[10] Parth also argues that PVHMC’s pay plan is unlawful,
because nurses working both the 8-hour and 12-hour shifts
perform the same work, but are paid at different rates. We
find no authority that suggests employees cannot be paid dif-
ferent rates for different shifts, and Parth fails to present any
authority to the contrary. We do, however, find ample author-
ity from other circuits that supports PVHMC’s argument that
workers working different shifts may be paid different rates.
See, e.g., Gorman, 488 F.3d at 595-97; Conner, 428 F. Supp.
2d at 636-37; Allen v. Bd. of Pub. Educ., 495 F.3d 1306,
1312-13 (11th Cir. 2007).
[11] Parth derives her sole support for this argument from
29 C.F.R. § 778.316, which prohibits employers from setting
one hourly rate for the first 40 hours of work and a lower
hourly rate for statutory overtime hours. See 29 C.F.R.
§ 778.316. The regulation does not, however, speak to the cir-
cumstances present in this case. 29 C.F.R. § 778.316 makes
no reference to whether employees working one shift over
another may or may not be paid a different wage. Parth has
therefore failed to meet her burden to show that this scheme
is unlawful. Accordingly, we affirm the district court’s deci-
sion to grant PVHMC summary judgment.
IV. CONCLUSION
We conclude, as did the district court, that Parth failed to
adduce any evidence or authority to support her claim that
PVHMC’s pay plan violates the FLSA. We conclude that
PVHMC was justified in responding to its employees’
requests for an alternative work schedule by adopting the
sought-after schedule and paying the employees the same
wages they received under the less-desirable schedule. There
14244 PARTH v. POMONA VALLEY HOSPITAL
is no evidence to suggest that PVHMC is attempting to avoid
paying its employees overtime wages, nor can we find any
authority that prohibits PVHMC from paying employees dif-
ferent hourly rates when they are assigned different shifts.
AFFIRMED.