Gotay-Figueroa v. Municipality

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 97-1650





                            ANDRES GOTAY-FIGUEROA, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                          MUNICIPALITY OF SAN JUAN, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            Frederic Chardon Dubos on brief for appellants.
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            Jose Angel Rey on brief for appellees.
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                                    October 14, 1997

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                 Per  Curiam.    Appellants are  present  or  former city
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            police officers for the Municipality of San Juan.  They claim



            their employer has violated the Fair Labor Standards Act,  29



            U.S.C.    201  et  seq. ("FLSA"),  in  two respects:    1) by



            failing to  pay overtime  as required  by subsection  207(a),



            even  though they worked more than  40 hours per week; and 2)



            by giving them compensatory time  in lieu of overtime pay for



            hours  worked in  excess  of 35  or 40  hours  per week,1  in
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            violation of subsection 207(o).



                 Both  arguments fail for the same reason.  Appellants do



            not become eligible for payment  of overtime wages until they



            have worked 43 hours per week; see  29 U.S.C.   207(k) and 29
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            C.F.R.     553.230(b)  &  (c).    The  rule  applies  to  law



            enforcement personnel  who  have  a  seven to  28  day  "work



            period."    Their argument  that  this special  rule  for law



            enforcement officers does not apply to them, since they never



            work seven consecutive  days, is specious.    A "work period"
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            is not a "duty cycle."  Instead,  it is a recurring period of



            work, from seven to 28 days, which the employer sets up ahead



            of time for  determining whether an employee  is eligible for






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               1Appellants seem to  claim they were entitled  to overtime
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            pay for  hours worked  in excess of  35 per  week; apparently

            local law  is more generous  than federal law with  regard to

            municipal  employees; see  Ordinance No. 58,  Municipality of
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            San Juan, June 28, 1985.  Whether appellants allege they were

            entitled  to overtime  pay under  the FLSA  after  working 35

            hours or 40 hours, they still  fail to allege a violation  of

            the FLSA.  See text infra.
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            overtime pay  in any given  period.  29 C.F.R.    553.224(a).



            Appellants have not  alleged they were required  to work more



            than  43   hours  in   a  work   period  without   additional



            compensation, so they have failed  to allege or show facts to



            support their claims.



                 Affirmed.  Loc. R. 27.1.
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