Bailey v. County of Loudoun ( 2014 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
McClanahan, JJ., and Russell, S.J.
BRANDI BAILEY, ET AL.
OPINION BY
v. Record No. 131815 JUSTICE LEROY F. MILLETTE, JR.
September 12, 2014
LOUDOUN COUNTY SHERIFF'S
OFFICE, ET. AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Alfred D. Swersky, Judge Designate
In this appeal we consider whether the Virginia Gap Pay
Act, Code § 9.1-700 et seq., prohibits three employment
practices adopted to avoid paying law-enforcement employees at
least at a one and one-half overtime rate for hours of work
accrued in "the gap:" that is, hours of work more than the
employees' regularly scheduled work hours but less than the
federally established maximum limit after which an overtime
rate must be paid. We also consider whether one such
employment practice is prohibited by the law-enforcement
employees' contractual employment rights.
I. Facts and Proceedings
The Loudoun County Sheriff's Office receives funds from
Loudoun County, pursuant to a cooperative agreement, and from
the Commonwealth. To receive funds from Loudoun County, the
Sheriff's Office agrees to be treated "as any other department"
under Loudoun County's authority. The consequences of this
arrangement are significant. The Sheriff acts both in his
county-affiliated capacity as a department head, and in his
state-affiliated capacity as a constitutional officer. Also,
Loudoun County approves the Sheriff's Office's budget and
retains authority to dictate the Sheriff's Office's policies
regarding its deputies' salaries, benefits, and overtime.
Loudoun County's Board of Supervisors, compelled by budget
concerns, focused on limiting overtime compensation to reduce
expenditures. To address the Sheriff's Office's use of
overtime, the Board required the Sheriff's Office to implement
three employment practices to reduce the hours that would be
considered overtime. The Board also raised the number of hours
constituting the deputies' regularly scheduled work hours.
These actions prompted the litigation giving rise to this
appeal. The Sheriff's Office employed deputies who worked in
the Adult Detention Center ("ADC Deputies") and deputies who
worked on patrol ("Patrol Deputies"). The ADC Deputies and
Patrol Deputies 1 brought an action under the Multiple Claimant
Litigation Act, Code §§ 8.01-267.1 through -267.9, against
1
The circuit court's October 17, 2012 consent order listed
the Patrol Deputies as Ronald Beach, Wade Boyer, Aleksandra
Kowalski, Brandi Bailey, Perry Bailey, Chad T. Braun, James
Breeden, Joshua Colborn, Anthony Cooper, Shannon A. Warrick,
Kevin F. Zaldua, Jamie D. Romba, Sarah A. Weaver, and James D.
Spurlock, Jr.
2
Loudoun County, 2 the Sheriff's Office, and Sheriff Michael L.
Chapman. The ADC Deputies alleged that the defendants violated
both state and federal law by wrongfully calculating and
underpaying overtime hours. Both the ADC Deputies and the
Patrol Deputies alleged that the defendants engaged in
employment practices to avoid paying overtime in violation of
state law and the deputies' employment contracts.
After considering trial testimony and post-trial briefs,
the circuit court issued a letter opinion resolving these
claims. The circuit court (1) denied all requested injunctive
relief, (2) awarded the ADC Deputies judgment in the amount of
$107,451.00 together with prejudgment interest from February 1,
2011, and (3) denied the Patrol Deputies' claims and entered
judgment in favor of the defendants on those claims. After the
court denied the Patrol Deputies' motion for reconsideration,
it entered a final order memorializing its letter opinion and
also awarding costs and attorneys' fees.
The Patrol Deputies timely filed a petition for appeal
with this Court. We granted the following assignments of
error, each of which identifies an allegedly impermissible
employment practice brought before the circuit court at trial:
2
Loudoun County was dismissed from the suit before trial
and is not a party to this appeal.
3
1. The Court wrongly held that the Sheriff did not
violate Va. Code § 9.1-703 when he refused to pay
[Patrol] Deputies overtime for all hours when the
deput[ies were] in a "paid status," which violates the
express language of [Code §] 9.1-703 and the policy
created for the Sheriff by the County.
2. The Court wrongly held that the Sheriff could
refuse to credit hours at the overtime rate to
[Patrol] Deputies as compensatory time for hours over
80 and below 86 even though Va. Code § 9.1-701(A)
expressly requires that the Sheriff do so.
3. The Court wrongly held that the Sheriff's practice
of "force-flexing" hours (where the Sheriff forced
[Patrol] Deputies without notice to go home and not
work regularly scheduled hours that would put them
past the overtime threshold) did not violate Va. Code
§ 9.1-703 and the Deputies' employment contracts.
II. Discussion
A. Standard of Review
Whether a statute prohibits employment practices is a
mixed question of law and fact. See Smyth County Cmty. Hosp.
v. Town of Marion, 259 Va. 328, 336, 527 S.E.2d 401, 405
(2000). "Therefore, while we give deference to the trial
court's factual findings and view the facts in the light most
favorable to the prevailing party, we review the trial court's
application of the law to those facts de novo." PS Business
Parks, L.P. v. Deutsch & Gilden, Inc., 287 Va. 410, 417, 758
S.E.2d 508, 511 (2014) (internal quotation marks and
alterations omitted).
4
We review issues of contract interpretation de novo.
Schuiling v. Harris, 286 Va. 187, 192, 747 S.E.2d 833, 836
(2013).
B. The Statutory Context of This Appeal
This appeal requires us to resolve issues of Virginia law.
However, the relevant state law operates in tandem with federal
law. Because "we do not read statutes in isolation," and
because "statutes dealing with a specific subject must be
construed together in order to arrive at the object sought to
be accomplished," we first review the relevant statutory law to
place the issues in this appeal within their appropriate legal
context. Sheppard v. Junes, 287 Va. 397, 403, 756 S.E.2d 409,
411 (2014) (internal quotation marks omitted).
1. The Federal Fair Labor Standards Act
The United States Congress enacted the Fair Labor
Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., in 1938
and has since amended it on several occasions. "The principal
congressional purpose in enacting the [FLSA] was to protect all
covered workers from substandard wages and oppressive working
hours." Barrentine v. Arkansas-Best Freight Sys., Inc., 450
U.S. 728, 739 (1981); see also 29 U.S.C. § 202(a). To this
end, "the FLSA obligates employers to compensate employees for
hours in excess of 40 per week at a rate of [one and one-half]
times the employees' regular wages." Christopher v. SmithKline
5
Beecham Corp., 567 U.S. __, __, 132 S. Ct. 2156, 2162 (2012);
see 29 U.S.C. § 207(a). This 40-hour overtime requirement
applies to "employers," which includes any "government of a
State or political subdivision thereof," "any agency of . . . a
State," and any "political subdivision of a State," as each of
those entities are a "public agency." 29 U.S.C. §§ 203(d),
(x); 207(a).
However, this 40-hour overtime requirement is not
absolute. For example, Congress provided numerous outright
exemptions from the 40-hour overtime requirement. 29 U.S.C.
§ 213(a), (b); see, e.g., Christopher, 567 U.S. at __, 132
S.Ct. at 2158 (addressing the "outside salesman" exemption).
But outright exemptions are not the only type of exception.
The FLSA also establishes a "partial exemption" to the 40-hour
overtime requirement for a "public agency" that is "engaged in
. . . law enforcement activities." 29 U.S.C. § 207(k); Calvao
v. Town of Framingham, 599 F.3d 10, 13 (1st Cir. 2010). A law-
enforcement public agency is still required to pay its
employees at a one and one-half overtime rate for overtime
hours, but the hours-to-days ratio establishing what
constitutes overtime hours is different from the 40-hour
overtime requirement. Instead of the 40-hours-to-7-days ratio
used to establish the general 40-hour overtime requirement, 29
U.S.C. § 207(a), a law-enforcement public agency is subject to
6
a larger hours-to-days ratio if the public agency uses a work
period between 7 and 28 days. 29 U.S.C. § 207(k). Congress
thus "set a higher threshold number of hours that [law-
enforcement employees] can work in a [28] day work period — or
a proportional number of hours in a shorter work period of at
least [7] days — before these employees become entitled to
overtime compensation." Calvao, 599 F.3d at 13.
The purpose of this partial exemption is well understood.
"Congress incorporated [this] special provision[] concerning
overtime pay for [law-enforcement employees] when it amended
the FLSA in 1974 in order to take account of the special
concerns of States and localities with respect to these
positions." Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528, 554 n.17 (1985). This partial exemption "eases the
burden of the FLSA's overtime provisions on state and local
employers two ways." Calvao, 599 F.3d at 14. It not only
"provides for higher hours standards before requiring the
payment of overtime," but it also "permits overtime hours to be
computed over a workweek that may be longer than a forty-hour
workweek and that the employer selects." Id.; see also Avery
v. City of Talladega, 24 F.3d 1337, 1344 (11th Cir. 1994) ("The
work period concept was intended to ease the overtime burdens
of certain public employers by allowing them to average their
7
employees' duty hours over the designated work period, from [7]
to [28] days in length.").
Congress established the following hours-to-days ratio for
this partial exemption: 216 hours for a 28 day work period. 29
U.S.C. § 207(k). However, Congress empowered the Secretary of
Labor to promulgate a lower hours-to-days ratio. Id.; see also
29 C.F.R. § 553.201(a) (noting that the FLSA "mandated" a study
on this point). And, in fact, the Secretary did promulgate a
lower ratio for law-enforcement public agencies: 171 hours for
a 28 day work period. 29 C.F.R. § 553.230(b). Recognizing
that this ratio applies to every work period between 7 and 28
days, the Secretary provided a chart specifying how this ratio
applies by listing the number of pre-overtime hours that may be
worked in each work period before a one and one-half overtime
rate must be paid. See 29 C.F.R. § 553.230(c). As relevant to
this appeal, a 14 day work period has an 86 hour pre-overtime
hour limit for law-enforcement employees. 29 C.F.R.
§ 553.230(c).
2. The Virginia Gap Pay Act
The Virginia Gap Pay Act (the "Act"), Code § 9.1-700 et
seq., was enacted in 2001. 3 Although the Act originally applied
3
The Act was enacted as Chapter 10.1:3 of Title 2.1 of the
Code, but upon repeal of that portion of Title 2.1, the Act was
codified in Chapter 7 of Title 9.1. 2001 Acts chs. 768, 844.
8
only to public employers of fire protection employees, the
General Assembly amended the Act in 2005 to apply to public
employers of law-enforcement employees. 4 See 2005 Acts ch. 732.
It is clear that the General Assembly intended the Act to
operate in conjunction with the FLSA. The Act permits an
employer to "adopt any work period to compute overtime
compensation for . . . law-enforcement employees," so long as
such a work period is "recurring and fixed" and "between [7]
and 28 days." Code § 9.1-702. To this end, an employer of
law-enforcement employees may seek the partial exemption to the
40-hour overtime requirement established by 29 U.S.C. § 207(k)
and specified in 29 C.F.R. § 553.203(b) and (c).
More specifically, the Act is designed to solve a problem
unaddressed by the FLSA. The FLSA establishes a fixed number
of pre-overtime hours that may be paid at a normal rate for any
given work period. However, an employer may establish a lower
number of hours of work per work period that constitute the
basis of the employee's salary or the employee's hourly
compensation — that is, those hours which constitute the
employee's regularly scheduled work hours. See Code § 9.1-700.
4
As used in the Act, "[e]mployer" means "any political
subdivision of the Commonwealth." Code § 9.01-700. Further,
with respect to employers of law-enforcement employees, the Act
applies only if such an employer employs 100 or more law-
enforcement employees. Code §§ 9.1-701(C); 9.1-702; 9.1-703;
9.1-704(C).
9
This is "the gap:" the difference between an employee's
regularly scheduled work hours and the federal pre-overtime
hours limit.
The problem is that any hours of work accrued in the gap
are "overtime," in the sense that those hours are work in
excess of the hours used to determine the law-enforcement
employee's regular pay, but federal law would not require a one
and one-half overtime rate of pay for those hours because they
do not exceed the pre-overtime hours established by 29 U.S.C.
§ 207(k) and specified in 29 C.F.R. § 553.203(b) and (c). To
address this issue, the Act requires that:
Employers shall pay . . . law-enforcement employees
overtime compensation or leave, as under the Fair
Labor Standards Act, 29 U.S.C. § 207(o), at a rate of
not less than one and one-half times the employee's
regular rate of pay for all hours of work between the
statutory maximum permitted under 29 U.S.C. § 207(k)
and the hours for which an employee receives his
salary, or if paid on an hourly basis, the hours for
which the employee receives hourly compensation.
Code § 9.1-701(A). As this statutory language is neither
ambiguous nor absurd, we conclude that it means exactly what it
says. Sheppard, 287 Va. at 403, 756 S.E.2d at 411. Thus, Code
§ 9.1-701(A) requires an employer of law-enforcement employees
to pay such employees, in the form of either overtime
compensation or leave, at a rate of at least one and one-half
times their normal pay rate, for all hours of work that occur
within a work period and that accrue within the gap.
10
C. The Sheriff's Office's Employment Practices
The Sheriff's Office established a 14 day work period for
its Patrol Deputies as permitted by Code § 9.1-702. Under
federal law, the Sheriff's Office is not required to pay the
Patrol Deputies a one and one-half overtime rate for hours
worked in a 14 day work period until the Patrol Deputies accrue
hours of work in excess of 86 hours. 29 U.S.C. § 207(k); 29
C.F.R. § 553.203(b), (c). But the Sheriff's Office established
the Patrol Deputies' regularly scheduled work hours as 80.5
hours per work period, and then in early 2011 changed the
Patrol Deputies' regularly scheduled work hours to 84 hours per
work period. 5 Thus, for the Patrol Deputies, the gap between
actual overtime and the federally-imposed overtime was any
hours of work accrued between 80.5 and 86 hours in a 14 day
work period before early 2011, and any hours of work accrued
between 84 and 86 hours in a 14 day work period after early
2011.
Pursuant to Loudoun County's direction, the Sheriff's
Office implemented three employment practices to reduce
5
Trial testimony indicated that the change in the Patrol
Deputies' regularly scheduled work hours occurred in either
January or February 2011. The circuit court did not make a
factual finding on this point. Because this appeal focuses on
liability and further determination from the circuit court as
to damages is required, we need not determine when exactly the
Sheriff's Office changed the Patrol Deputies' regularly
scheduled work hours from 80.5 hours to 84 hours.
11
overtime payments to the Patrol Deputies. We find that the Act
prohibits two of these employment practices but permits the
third practice. To the extent hours of work actually accrue in
the gap, notwithstanding creative accounting practices, those
hours must be paid at least at a one and one-half overtime
rate. But the Act neither requires payment for hours of work
never actually accrued in the gap, nor mandates that an
employee work according to a specific work schedule.
1. The "Debiting Leave" Scheme
The "debiting leave" scheme is implicated when, within a
single work period, a Patrol Deputy works overtime hours and
takes sick leave. Instead of acknowledging the accrual of both
overtime hours and sick leave, the Sheriff's Office reduces and
offsets the sick leave hours taken by the overtime hours
worked. Those offset sick leave hours are not "debited" from
the Patrol Deputy's pool of accumulated sick leave, but instead
remain on the books as sick leave not being taken. The effect
of this policy makes it appear as if the Patrol Deputy did not
actually work some or all of his overtime hours in a work
period, as the overtime hours which offset the sick leave hours
simply look like regularly scheduled work hours in light of the
sick leave hours not being acknowledged.
As for the offset sick leave hours which are taken but not
acknowledged, the Sheriff's Office does not outright refuse to
12
pay for such hours. The Patrol Deputy can have those offset
sick leave hours acknowledged in a subsequent work period, but
only if such an acknowledgement would not put the Patrol Deputy
over his regularly scheduled work hours for that subsequent
work period. In other words, when those offset sick leave
hours are acknowledged and compensated in a subsequent work
period, they are paid at the Patrol Deputy's normal rate of
pay, rather than at a one and one-half overtime rate.
We agree with the Patrol Deputies that the "debiting
leave" scheme violates the Act. The Act requires at least a
one and one-half overtime rate of pay for "all hours of work"
that accrue within the gap. Code § 9.1-701(A). The word "all"
is an "unrestrictive modifier[]" that "is generally considered
to apply without limitation." Sussex Cmty. Servs. Ass'n v.
Virginia Soc'y for Mentally Retarded Children, Inc., 251 Va.
240, 243, 467 S.E.2d 468, 469 (1996). The plain language of
Code § 9.1-701(A) does not counsel for a limited understanding
of "all." Thus, if any "hours of work" accrue within the gap,
they must be paid at least at a one and one-half overtime rate.
"Hours of work" is a term of art that the General Assembly
defined for purposes of the Act: "all hours that an employee
works or is in a paid status during his regularly scheduled
work hours shall be counted as hours of work." Code § 9.1-703
(emphasis added). Sick leave hours are "hours" that are a
13
"paid status during [a Patrol Deputy's] regularly scheduled
work hours" because those sick leave hours are paid hours, and
are calculated as part of a Patrol Deputy's regularly scheduled
work hours. A Patrol Deputy's sick leave hours are therefore
"hours of work."
We hold that the Sheriff's Office was required to pay the
Patrol Deputies' offset sick leave hours at least at a one and
one-half overtime rate because those offset sick leave hours
were "hours of work" actually taken, and therefore accrued,
within the gap. Code §§ 9.1-701(A); 9.1-703. The Sheriff's
Office's "debiting leave" scheme is an accounting technique
that violated the Act because the Sheriff's Office paid such
offset sick leave hours at a rate less than one and one-half
times the Patrol Deputies' normal rate of pay.
2. The "Exchange Hours" Scheme
The "exchange hours" scheme is implicated when a Patrol
Deputy works overtime hours during a particular work period.
The Patrol Deputy has the option to voluntarily "exchange" his
overtime hours which accrued in the gap for leave hours to be
taken and paid at any later date. However, when the exchanged
overtime hours are paid out as leave, it is at a normal rate of
pay rather than at a one and one-half overtime rate.
We agree with the Patrol Deputies that the "exchange
hours" scheme violates the Act. As already stated, the Act
14
requires at least a one and one-half overtime rate of pay for
"all hours of work" that accrue within the gap. Code § 9.1-
701(A). The term "hours of work" includes "all hours that an
employee works." Code § 9.1-703. Because any hours actually
worked during the gap are therefore "hours of work" that
accrued within the gap, those hours must be paid out at least
at a one and one-half overtime rate. Code § 9.1-701(A).
This is true even though the "exchange hours" scheme paid
overtime hours in the form of leave rather than overtime
compensation. The Act specifically allows for hours of work
accrued within the gap to be paid out as either "overtime
compensation or leave." Code § 9.1-701(A).
The term "overtime compensation" in Code § 9.1-701(A) is
undefined, and accordingly we give that term its "ordinary
meaning, in light of the context in which [it is] used."
Virginia Marine Res. Comm'n v. Chincoteague Inn, 287 Va. 371,
384, 757 S.E.2d 1, 8 (2014) (internal quotation marks omitted).
The term "overtime compensation" refers to "extra wages paid
for excess hours worked." Black's Law Dictionary 1279 (10th
ed. 2014). This is the typical payment of overtime hours which
compensates the employee for overtime hours as having been
worked in the work period in which they accrue. The exchanged
overtime hours were not paid as overtime compensation.
15
The term "leave" in Code § 9.1-701(A) is defined by the
reference to 29 U.S.C. § 207(o), which in turn governs
"compensatory time off." The term "compensatory time off"
refers to "hours during which an employee is not working, which
are not counted as hours worked during the applicable workweek
or other work period for purposes of overtime compensation, and
for which the employee is compensated at the employee's regular
rate." 29 U.S.C. § 207(o)(7)(A). It is clear that the
exchanged overtime hours were categorized as "compensatory time
off" under the "exchange hours" scheme. When the exchanged
overtime hours were subject to the "exchange hours" scheme, a
Patrol Deputy would not work during such hours, the hours were
not calculated as part of the Patrol Deputy's regularly
scheduled hours and were not considered for purposes of
overtime compensation, and the hours were compensated at a
regular rate of pay. See 29 U.S.C. § 207(o)(7)(A). The
"exchange hours" scheme therefore paid the exchanged overtime
hours as leave, rather than as overtime compensation. But the
Act requires both forms of payment to be compensated at least
at a one and one-half overtime rate. Code § 9.1-701(A).
We hold that, although the Sheriff's Office could
permissibly pay overtime hours as leave rather than as overtime
compensation, the Sheriff's Office was required to pay the
Patrol Deputies' exchanged overtime hours at least at a one and
16
one-half overtime rate because those exchanged overtime hours
were "hours of work" actually worked, and therefore accrued,
within the gap. Code §§ 9.1-701(A); 9.1-703. The Sheriff's
Office's "exchange hours" scheme violated the Act because the
Sheriff's Office paid such exchanged overtime hours as leave at
a rate less than one and one-half times the Patrol Deputies'
normal rate of pay. 6
3. The "Force Flexing" Scheme
The "force flexing" scheme is implemented when a Patrol
Deputy accrues hours in addition to his regularly scheduled
work hours such as through overtime work or a holiday. Then,
later in the same work period, to avoid paying overtime, the
Sheriff's Office prohibits the Patrol Deputy from working his
full scheduled shift and sends the Patrol Deputy home before
the deputy can accrue sufficient hours to earn overtime.
a. The Patrol Deputies' Statutory Challenge
The Patrol Deputies make three statutory arguments as to
why the "force flexing" scheme violates the Act. None are
6
In opposing the Patrol Deputies' petition for appeal, the
Sheriff's Office argued that we could not reach this issue
because the "exchange time" scheme was not properly before the
circuit court as it had not been alleged in the pleadings. We
disagree. Count III of the amended complaint alleged as
impermissible the Sheriff's Office use of "'flex-scheduling'
procedures." During opening arguments, the Patrol Deputies'
counsel explained to the circuit court that Count III pertained
to "three subcategories of flexible scheduling," including the
"exchange time" scheme.
17
persuasive, and we agree with the Sheriff's Office that the
"force flexing" scheme is permissible under the Act. We note
at the outset that the "force flexing" scheme does not
implicate the problem the Act was enacted to address: hours of
work being accrued within the gap, but paid out at less than a
one and one-half overtime rate. The "force flexing" scheme
merely stops the Patrol Deputies from accruing more hours than
the number of their regularly scheduled work hours in a work
period.
First, the Patrol Deputies argue that an employer cannot
alter an employee's work schedule by not allowing that employee
to work all of his "regularly scheduled work hours." The
General Assembly defines "[r]egularly scheduled work hours [as]
those hours that are recurring and fixed within the work period
and for which an employee receives a salary or hourly
compensation." Code § 9.1-700. The Patrol Deputies attribute
to the term "regularly scheduled work hours" an impact not
borne out by the plain language of the Act. The term
"regularly scheduled work hours" operates to determine when an
employee's hours qualify as "hours of work" for purposes of
overtime under the Act. Code § 9.1-703. "Hours of work"
constitute (1) all hours that an employee actually works,
regardless of whether such hours are regularly scheduled or
not, and (2) hours that the employee is in a paid status during
18
his regularly scheduled work hours, but not (3) hours that the
employee is in a paid status during "on-call, extra duty
assignments[,] or any other nonrecurring and nonfixed hours,"
as those hours are not regularly scheduled work hours. Code
§§ 9.1-700; 9.1-703. Reading these provisions together, no
basis exists to hold that the term "regularly scheduled work
hours" restricts an employer's ability to alter a work schedule
such that an employee does not work all of his or her regularly
scheduled work hours in any given work period.
Second, the Patrol Deputies argue that the Act's
prohibition against an employer changing a work period "for
purposes of denying overtime compensation to [law-enforcement]
employees to which they may be entitled under subsection A of
[Code] § 9.1-701," Code § 9.1-702, also prohibits an employer
from changing the Patrol Deputies' work schedule within a work
period for similar reasons. This argument can be sustained
only if we fundamentally redefine "work period." A work period
is merely a period of time "between [7] and 28 days" during
which an employee's hours of work are calculated for overtime
purposes. Code § 9.1-702; see 29 U.S.C. § 207(a), (k).
Although we liberally construe remedial statutes, this
principle of construction does not permit us to deviate from
plain and unambiguous statutory language. Greenberg v.
Commonwealth ex rel. Attorney General of Va., 255 Va. 594, 600.
19
499 S.E.2d 266, 269 (1998). We therefore disagree with the
Patrol Deputies' definition of a "work period" as including the
days and times an employee is scheduled to work his regularly
scheduled work hours during a work period.
Third, the Patrol Deputies invoke the purpose of the Act
and argue that the Act was intended to prohibit employment
practices, such as the "force flexing" scheme, whose "sole
purpose [is] to perpetuate the pre-statutory wage scale."
Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 41 (1944). In
light of the Act's specialized operation in conjunction with
the FLSA, we do not ascribe such a broad purpose to the Act.
In any event, "the General Assembly's intent is usually self-
evident from the statutory language" itself, and we find this
principle to hold true with the Act. Sheppard, 287 Va. at 403,
756 S.E.2d at 411 (internal quotation marks omitted). Had the
General Assembly intended the Act to prohibit an employer from
refusing to allow an employee to work his scheduled hours, when
such a refusal only ensures that the employer would not pay
overtime under the Act, it would have created a statutory
provision clearly aimed at such a practice. It did not. We
decline to interpret the Act to achieve that policy goal. See
Wood v. Board of Supervisors, 236 Va. 104, 115, 372 S.E.2d 611,
618 (1988) ("[I]t is the responsibility of the legislature, not
the judiciary, to formulate public policy, to strike the
20
appropriate balance between competing interests, and to devise
standards for implementation.").
We hold that the Sheriff's Office was neither required to
pay hours of work that did not accrue within the gap at least
at a one and one-half overtime rate, nor prohibited from
altering a Patrol Deputy's work schedule within a work period.
Code §§ 9.1-701(A); 9.1-702. The Sheriff's Office's "force
flexing" scheme did not violate the Act.
b. The Patrol Deputies' Contract Challenge
The Patrol Deputies contend that the Loudoun County Human
Resources Handbook of Personnel Policies and Procedures (the
"Human Resources Handbook") vested the Patrol Deputies with
contractual rights as part of their employment with the
Sheriff's Office, and that the "force flexing" scheme violated
those rights. "In Virginia, an employment relationship is
presumed to be at-will, which means that the employment term
extends for an indefinite period and may be terminated by the
employer or employee for any reason upon reasonable notice."
Cave Hill Corp. v. Hiers, 264 Va. 640, 645, 570 S.E.2d 790, 793
(2002). "Many of the provisions customarily included in an
employee handbook are consistent with an at[-]will employment
relationship such as policies regarding vacations, severance
pay, or employee grievance procedures." Progress Printing Co.
v. Nichols, 244 Va. 337, 340, 421 S.E.2d 428, 430 (1992).
21
"Normally, the employer retains the right to alter these
policies at any time, although rights which have already vested
in the employee are enforceable for the period of time during
which those rights existed." Id. at 340-41, 421 S.E.2d at 430.
We agree with the Sheriff's Office that the "force
flexing" scheme did not violate the Patrol Deputies'
contractual employment rights. Reviewing the relevant
provisions of the Human Resources Handbook makes this clear.
Section 4.2.02 of the Human Resources Handbook, titled
"Authorized Workweeks and Work Hours," reads:
(B) Supervisors will schedule sufficient staff to
provide services during County business hours or other
designated service hours. To ensure that sufficient
staff are available to meet service needs, supervisors
have the authority to temporarily or permanently
adjust employees' work hours or locations, as long as
the adjustment does not exceed the position's
authorized workweek hours and a reasonable amount of
time is afforded the employee to accommodate the
adjustment.
In relevant part, this provision prohibits an adjustment in a
Patrol Deputy's work hours if no "reasonable amount of time" is
provided "to accommodate the adjustment."
The Patrol Deputies failed to show at trial that the
"force flexing" scheme violated this prohibition. The Patrol
Deputies failed to present sufficient evidence that the "force
flexing" scheme, as a general matter, involved unreasonable
amounts of time for a Patrol Deputy to accommodate to a work
22
hours adjustment. And the Patrol Deputies recounted only one
specific instance of the "force flexing" scheme, when Deputy
Anthony David Cooper was told upon arriving at work that he
would "have to go home two hours after leaving roll call." The
circuit court did not err in finding that a two hour notice of
being sent home early, although perhaps frustrating and
inconvenient for the employee, is not a breach of contract by
constituting an unreasonable amount of time for that employee
to "accommodate" the truncated work shift.
Section 4.2.03 of the Human Resources Handbook, titled
"Flexible Scheduling," reads:
(A) The County supports flexible scheduling
arrangements when they can be accommodated as long as
sufficient staff are available to meet service needs.
Flexible scheduling of work hours is arranged between
an employee and supervisor with the Department Head's
approval[,] providing that:
(1) employees continue to work their authorized number
of hours during their normal pay workweek (Thursday
through Wednesday);
(2) each separate work period is structured below FLSA
overtime levels; and
(3) all of the department or program's business hours
are covered adequately and the provision of services
to the public is not adversely affected.
In relevant part, this provision allows flexible scheduling of
work hours when "arranged" between the employee and supervisor
and with the "approval" of the department head.
23
The Patrol Deputies failed to show at trial that the
"force flexing" scheme did not satisfy these requirements.
Testimony established that the "force flexing" scheme involved
a Patrol Deputy being told by his supervisor that his schedule
was going to be shortened, and that such flexing of hours was
done with the Sheriff's approval, who was the department head.
Although such scheduling was mandatory, whereby a Patrol Deputy
could not opt out of the altered work hours, the flexed
schedule was nonetheless "arranged" between the Patrol Deputy
and his supervisor and done with the "approval" of the Sheriff.
We hold that the Human Resources Handbook did not prohibit
the Sheriff's Office from altering the Patrol Deputies' work
schedules in the manner testified to at trial. The "force
flexing" scheme did not violate the Patrol Deputies'
contractual employment rights.
D. Damages for the Sheriff's Office's Violations of the Act
While preserving the sovereign immunity of the
Commonwealth and any agency as defined in Code § 8.01-195.2,
the General Assembly created a right of action for a law-
enforcement employee against "an employer who violates [the
Act]." Code §§ 9.1-704(A); 9.1-706. If successful, the law-
enforcement employee is entitled to "an amount of double the
amount of the unpaid compensation due," unless "the employer
can prove that his violation was in good faith," in which case
24
the employer "shall be liable only for the amount of the unpaid
compensation plus interest at the rate of eight percent per
year, commencing on the date the compensation was due to the
employee." Code § 9.1-704(A). If the law-enforcement employee
prevails, he is also entitled to "attorneys' fees and costs to
be paid by the employer." Code § 9.1-704(B). Finally, a law-
enforcement employee can recover unpaid compensation only for
the two years prior to bringing suit, unless the employee can
prove that "the violation [of the Act] is willful," in which
case the employee can recover unpaid compensation for the three
years prior to bringing suit. Code § 9.1-705.
On appeal, the parties dispute the amount of damages the
Patrol Deputies should be awarded pursuant to the Sheriff's
Office's violations of the Act. These arguments are premature.
With respect to the Patrol Deputies, the circuit court ruled
only on the Sheriff's Office's liability. Holding the
Sheriff's Office not liable, the circuit court necessarily did
not address damages, which is an issue logically and legally
distinct from liability. See Ford Motor Co. v. Bartholomew,
224 Va. 421, 434, 297 S.E.2d 675, 681 (1982). Because "we are
a court of review, not of first view," the lower court must
rule on this outstanding issue before we address the point.
Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005); see Rule
5:25; see, e.g., Virginia Marine, 287 Va. at 390, 757 S.E.2d at
25
11. We will therefore remand this case to the circuit court
for a disposition expressly resolving the outstanding issue of
the Patrol Deputies' damages. Ash v. All Star Lawn & Pest
Control, Inc., 256 Va. 520, 526, 506 S.E.2d 540, 543 (1998).
In light of the parties' arguments before us, we make
clear that it is unnecessary to mandate a particular form of
proceedings on remand. Although we will order a new trial on
damages when the outstanding issue of damages remains to be
decided by a jury, see, e.g., Stubbs v. Parker, 169 Va. 676,
683, 192 S.E. 820, 822 (1938), we find no need for such action
when, as here, the plaintiffs waived their right to a jury and
evidence was presented to the court during a bench trial. A
circuit court, having heard evidence pertaining to damages
while sitting as fact finder, can exercise its discretion to
determine whether additional evidence is necessary in order to
make a proper "determination of damages." 7 Lower Chesapeake
Assocs. v. Valley Forge Ins. Co., 260 Va. 77, 81-82, 89, 532
7
Because the fact finder's ability to competently award
damages has not been called into question, we need not decide
whether our cases in which we remanded an appeal for a new jury
trial on damages compels us to remand for a new bench trial on
damages. See, e.g., Velocity Express Mid-Atlantic, Inc. v.
Hugen, 266 Va. 188, 203, 585 S.E.2d 557, 566 (2003) (new trial
on damages when an assigned error pertained to an aspect of the
trial which prejudiced only the damages calculation); Spainhour
v. B. Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 345-47, 377
S.E.2d 615, 619-20 (1989) (new trial on damages when the
circuit court's error precluded the prejudiced party from
presenting evidence pertaining to damages).
26
S.E.2d 325, 328, 332 (2000); see Yarbrough v. Commonwealth, 258
Va. 347, 361, 519 S.E.2d 602, 608 (1999) (recognizing that a
circuit court has "inherent [judicial] authority to administer
cases on its docket"). As the nature of the proceedings on
remand is compelled neither by statute, see, e.g., PS Business
Parks, 287 Va. at 420-22, 758 S.E.2d at 513-14, nor by our
holding on appeal, we leave to the circuit court's sound
discretion to take appropriate action to ensure that it is best
able to resolve the outstanding issue of damages while sitting
as fact finder.
III. Conclusion
For the aforementioned reasons, we hold that the "debiting
leave" scheme and "exchange hours" scheme violated the Act. We
further hold that the "force flexing" scheme neither violated
the Act nor violated the Patrol Deputies' contractual
employment rights. We will reverse the circuit court's
judgment to the extent it held otherwise, and remand the case
back to that court for further proceedings in accordance with
this opinion.
Affirmed in part,
reversed in part,
and remanded.
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