Tina Haro v. City of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TINA R. HARO, Nos. 12-55062
Plaintiff, 12-55310
and D.C. No.
2:02-cv-09587-
RUBEN ARMENDARIZ; FRANK CBM-SH
BROWN; IVAN CARMONA; KENNETH
DAWSON; DONALD GILLENWATER;
JAMES GOLDSWORTHY; ROBERT
GONZALEZ; PAUL GUTIERREZ; KARL
KOLLER; MICHAEL LIMON; PATRICK
MAREK; MIGUEL MARTINEZ; EDDIE
MATAMOROS; RICARDO MOLINA;
ALAN NAEOLE; TONY TRAN
NGUYEN; MICHAEL PALMA; BRANDI
PILATO; JOSEPH ST. GEORGES;
ARTHUR SKUBIK; THOMAS
STAFFORD; CAREY STEINER; ERVIN
STONE; MOISES TORRES; CARLOS
VARGAS; WAYNE WEISEHAM,
Plaintiffs-Appellees,
v.
CITY OF LOS ANGELES, a Municipal
Corporation,
Defendant-Appellant.
2 HARO V. CITY OF LOS ANGELES
JUAN M. ACHAN, Nos. 12-55076
Plaintiff, 12-55303
and D.C. No.
2:04-cv-04334-
GREGORY J. ACEVEDO; ANGEL E. CBM-SH
ALVAREZ; RANDALL ARAIZA; STEVE
BLOCH; RANDALL W. BRASS; KEVIN
A. BURGESS; ALFRED CAMACHO; OPINION
JOSE R. CAMUNAS; S. CARRASCO;
JOSEPH COLEMAN; RICKY D.
CRAWFORD; WILLIAM D. DUCAT;
ENRIQUE C. DUQUE; DANIEL J.
FAULKNER; PABLO FLORES; GUS
GAETA; CESAR A. GARCIA; DIONISIO
L. GARZA; HENRY M. GASBARRI;
JUAN GONZALEZ; GEORGE G.
GORDON; ENRIQUE GRACIANO;
DAVID GRIJALVA; RUDY GUTIERREZ;
DIANA IGAWA; MATT JOHNSON;
ELDON A. KARRATTI; SCOTT LAZAR;
ALEXANDER LEMUS; SHAWN
LENSKE; JULIO MALDONADO; CECIL
J. MANRESA; JUAN M. MAREZ;
MANUEL MARTINEZ; OSCAR
MARTINEZ; EDUARDO L. MENA;
RICARDO I. MENA; JOE LOUIS
MENDOZA; DAVID R. MIRANDA;
GABRIEL OLMEDO; TONY PORRATA;
KRISTINA RIVERA; MIGUEL
RODRIGUEZ; JOSE R. SANCHEZ; ORIN
SAUNDERS; CATHLEEN SCARVERS;
SUSAN RAE SPENCER; CRAIG J.
HARO V. CITY OF LOS ANGELES 3
THOMPSON; EDWARD TORREZ;
ROBERT A. VALLES; ALBERTO
VARGAS; CHEROMEE BRIDGET
WOLD; LJUBOMIR ZAJORAC,
Plaintiffs-Appellees,
v.
CITY OF LOS ANGELES,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
October 11, 2013—Pasadena, California
Filed March 18, 2014
Before: Harry Pregerson and Richard C. Tallman, Circuit
Judges, and Michael H. Simon, District Judge.*
Opinion by Judge Pregerson
*
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
4 HARO V. CITY OF LOS ANGELES
SUMMARY**
Labor Law
Affirming the district court’s summary judgment in an
action under the Fair Labor Standards Act, the panel held that
City of Los Angeles fire department dispatchers and
aeromedical technicians were entitled to standard overtime
pay because they did not fall within an exemption for
employees “engaged in fire protection.”
The panel held that these employees were not exempt
from standard overtime pay because they did not have the
legal authority and responsibility to engage in fire
suppression under FLSA §§ 207(k) and 203(y).
The panel held that the statute of limitations should be
extended from two to three years because of the City’s willful
violation of the FLSA. It held that liquidated damages should
be awarded because the City could not show good faith or
reasonable grounds for violating the FLSA. Agreeing with
the Sixth and Seventh Circuits, and disagreeing with the Fifth
and Eleventh Circuits, the panel held offsets for overtime
payments the City had already made should be calculated on
a week-by-week basis.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HARO V. CITY OF LOS ANGELES 5
COUNSEL
David A. Urban (argued), and Brian P. Walter, Liebert
Cassidy Whitmore, Los Angeles, California, for
Defendant–Appellant.
Thomas A. Woodley (argued), Woodley & McGillivary,
Washington, D.C.; Alan S. Kaufman, Chamberlain, Kaufman
& Jones, Albany, New York, for Plaintiffs–Appellees.
OPINION
PREGERSON, Circuit Judge:
Because of an exemption written into the Fair Labor
Standards Act (“FLSA”), Los Angeles City employees
“engaged in fire protection” (i.e. firefighters) do not receive
standard overtime pay—time and a half for all hours worked
over forty in one workweek. Instead, firefighters receive
overtime only after working 212 hours in a twenty-eight-day
period.
Plaintiff fire department dispatchers and fire department
aeromedical technicians (paramedics assigned to air
ambulance helicopters) were denied standard overtime pay
because the City of Los Angeles (the “City”) classified them
as employees “engaged in fire protection.” Plaintiff
dispatchers and aeromedical technicians argue that they are
not “engaged in fire protection,” and thus are entitled to
standard overtime pay.
6 HARO V. CITY OF LOS ANGELES
Also at issue are: (1) the proper statute of limitations,
(2) liquidated damages, and (3) offsets for previously-paid
overtime.
We have jurisdiction under 28 U.S.C. § 1291.
For the reasons stated below, we affirm the district court’s
findings that Plaintiffs are entitled to standard overtime pay;
the statute of limitations should be extended from two to
three years because of the City’s willful violation of the
FLSA; liquidated (i.e. double) damages should be awarded
because the City cannot show good faith or reasonable
grounds for violating the FLSA; and offsets should be
calculated on a week-by-week basis.
I. Factual Background
A. Plaintiff Dispatchers and Aeromedical Technicians
Plaintiffs are employed by the City of Los Angeles Fire
Department as either dispatchers or aeromedical technicians.
i. Dispatchers
Fire Department dispatchers work out of the Operations
Control Division, located four levels below City Hall in Los
Angeles. Dispatchers receive emergency calls and send a
dispatch message to the fire station and any specific vehicles
to be dispatched. Dispatchers are also responsible for
supporting field employees. If the incident commander at the
scene of the incident determines that additional resources are
needed, this request goes to the dispatcher. If the incident is
large enough, dispatchers are sent to the scene to act as
liaisons between the incident commander and Operations
HARO V. CITY OF LOS ANGELES 7
Control Division, tracking the incident and dispatching
further resources. No dispatcher, however, has worked at a
fire scene for at least ten years.
During their shifts, dispatchers are not required to have
any fire protective gear with them, nor are they required to
handle firefighting equipment. They do not go into the field
to physically engage in fire or rescue operations.
Dispatchers must have worked for the Fire Department as
either a firefighter or a paramedic for at least four years
before becoming a dispatcher. The majority of dispatchers,
including Plaintiffs, were trained as firefighters.
ii. Aeromedical Technicians
The second set of plaintiffs are the Fire Department’s
aeromedical technicians. Aeromedical technicians work
within the Air Operations Unit, providing support services for
helicopters designated as air ambulances. These technicians
must be certified and have experience as both firefighters and
as paramedics.
Aeromedical technicians spend the majority of their
flights administering medical care. Medical duties consist of
assessing, treating, and possibly transporting a patient from
an accident scene or from a rescue ambulance that has already
removed the patient from the scene. Other responsibilities
include scene security, rescue operations, and helicopter
equipment maintenance.
Aeromedical technicians are not outfitted with the same
gear used by firefighters. Technicians wear fire-resistant
8 HARO V. CITY OF LOS ANGELES
Nomex flight suits for protection in the event of a fire on the
helicopter. These suits are not designed to fight fires.
Air Operations Unit helicopters are occasionally used
during brush fires to drop water and to map out the fires. The
helicopter flies to a “helispot”—a designated area close to a
water source. If an air ambulance helicopter is used to drop
water, aeromedical technicians will load a hose and fittings
onto the helicopter. There are times when aeromedical
technicians arrive at the helispot before the firefighters.
Although it is not their primary responsibility to do so, they
will fill the helicopter with water and fuel so that the
equipment is ready for immediate use when the firefighters
arrive. Aeromedical technicians do not ride in the helicopter
when it drops water on the fire.
B. Overtime Pay
In calculating overtime payments, the City classified
Plaintiff dispatchers and aeromedical technicians as
employees “engaged in fire protection” under the FLSA,
29 U.S.C. § 207(k) and § 203(y). In doing so, the City denied
Plaintiffs the standard overtime pay of one and one-half times
the regular rate for any hours worked over forty in a week.
29 U.S.C. § 207(a). Instead, the City used the § 207(k)
calculation, which requires employees to work a total of 212
hours during a work period of twenty-eight days before
earning overtime compensation.
Using the § 207(k) calculation, the City had the option to
lower the number of days in the pay period to twenty-seven,
which lowered the overtime threshold to 204 hours. See
29 C.F.R. § 553.230. Thus, Plaintiffs received overtime pay
only if they worked more than 204 hours in a twenty-seven-
HARO V. CITY OF LOS ANGELES 9
day work period. Plaintiffs regularly worked nine twenty-
four-hour shifts every twenty-seven-day work period, totaling
216 hours.
II. Statutory Background
The Fair Labor Standards Act of 1938 requires employers
to pay their employees who work more than forty hours in a
workweek overtime compensation at one and one-half times
the regular rate. 29 U.S.C. § 207(a). Section 207(k),
however, exempts (i.e. denies regular overtime pay to)
employees “engaged in fire protection . . . activities.”
29 U.S.C. § 207(k). As stated above, under § 207(k), an
employer must compensate “fire protection” employees with
overtime payments only after the employee works more than
212 hours in a twenty-eight-day period. Id. Section 207(k)
creates a ratio of days in the period to number of hours
worked, and if the number of days in the work period is
decreased to twenty-seven, the number of hours an employee
must work before earning overtime is decreased to 204. See
29 C.F.R. § 553.230.
In 1999, Congress enacted 29 U.S.C. § 203(y) to define
“[e]mployee in fire protection activities” as:
[A]n employee, including a firefighter,
paramedic, emergency medical technician,
rescue worker, ambulance personnel, or
hazardous materials worker, who–
(1) is trained in fire suppression, has the
legal authority and responsibility to
engage in fire suppression, and is
employed by a fire department of a
10 HARO V. CITY OF LOS ANGELES
municipality, county, fire district, or State;
and
(2) is engaged in the prevention, control,
and extinguishment of fires or response to
emergency situations where life, property,
or the environment is at risk.
In drafting § 203(y), Congress adopted some of the
preexisting language from 29 C.F.R. § 553.210, a Department
of Labor regulation defining “fire protection activities.” But
in doing so, Congress chose to exclude parts of this
Department of Labor definition. One of these exclusions
reads as follows.
[A]ny employee . . . who performs
activities which are required for, and directly
concerned with, the prevention, control or
extinguishment of fires, including such
incidental nonfirefighting functions as
housekeeping, equipment maintenance,
lecturing, attending community fire drills and
inspecting homes and schools for fire
hazards. . . . The term would also include
rescue and ambulance service personnel if
such personnel form an integral part of the
public agency’s fire protection activities.
29 C.F.R. § 553.210 (1991). Thus, this old Department of
Labor definition, which includes “incidental nonfirefighting
functions” and “rescue and ambulance service personnel”
who “form an integral part of the public agency’s fire
protection activities,” is past history. It is not part of the
present FLSA definition of “fire protection activities.”
HARO V. CITY OF LOS ANGELES 11
III. Procedural History
A. Prior Litigation
In 1985, the Supreme Court held that FLSA overtime
requirements apply to governmental functions. Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985). That
same year, the City sent the Department of Labor a letter with
twenty questions regarding application of the FLSA to City
employees, including Fire Department paramedics. The City
did not inquire as to dispatchers or aeromedical technicians.
In 1997, in Acrich v. City of Los Angeles, single-function
paramedics (those paramedics not also trained as firefighters)
sued the City, asserting they were improperly classified under
§ 207(k). In 1999, the City again contacted the Department
of Labor regarding whether single-function paramedics were
“fire protection” employees under the FLSA. The City
settled Acrich in 2000, after which it began paying single-
function paramedics the standard overtime rate of time and a
half for hours worked over forty in a workweek.
In 1999, in Cleveland v. City of Los Angeles, dual-trained
paramedics (those trained as both paramedics and
firefighters) and Quality Improvement Analysts sued the City,
asserting that they too had been improperly classified under
§ 207(k). After a bench trial, the district court held that the
City had improperly classified these employees. The district
court also ruled that the City had not acted reasonably or in
good faith, and awarded liquidated damages equal to the
plaintiffs’ back pay. The City appealed as to the paramedics,
but not as to the Quality Improvement Analysts. This court
affirmed the district court’s ruling in August 2005. See
12 HARO V. CITY OF LOS ANGELES
Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir.
2005) (Pregerson, J.), cert. denied, 546 U.S. 1176 (2006).1
B. The Complaint
In their complaint, Plaintiffs alleged that the City violated
the FLSA by compensating them as “fire protection”
employees under § 207(k). Plaintiffs argued that they were
similarly situated to the paramedics in Cleveland, so the
decision in Cleveland should apply with equal force to
Plaintiffs. Plaintiffs also asserted that, under 29 U.S.C.
§ 255(a), the statute of limitations should be extended from
two years to three years based on the City’s willful violation
of the FLSA, and, under 29 U.S.C. § 216(b), mandatory
liquidated damages should be awarded because of the City’s
lack of good faith or reasonableness in complying with the
FLSA.
The parties then filed cross-motions for summary
judgment, based on stipulated facts.
C. District Court’s First Ruling
The district court granted Plaintiffs’ summary judgment
motions. Applying Cleveland, the district court determined
that dispatchers and aeromedical technicians are not “engaged
in fire protection” under § 207(k) and § 203(y) because they
are not “responsible for fire suppression” as that term would
1
While Cleveland was being litigated, Congress enacted § 203(y). On
appeal, the Cleveland court held that, under either the § 203(y) or the
Department of Labor definition, dual-trained paramedics were not
engaged in fire suppression. 420 F.3d at 991.
HARO V. CITY OF LOS ANGELES 13
ordinarily be understood. Like the plaintiffs in Cleveland,
Plaintiffs “do not actively and physically fight fire.”
The district court also held that a three-year statute of
limitations applies. Evidence that the City had disregarded
the FLSA by failing to inquire about uncertain FLSA
coverage issues, especially after its involvement in Cleveland,
showed willfulness.
The district court then ruled that Plaintiffs were entitled
to liquidated damages. The district court found that the City
had willfully violated the FLSA, which established the City’s
lack of good faith or reasonable grounds in complying with
the FLSA.
D. Calculating Damages
Following the district court’s order, the parties began
calculating damages. The parties reached an impasse over
how to offset those overtime payments the City had already
made to Plaintiffs using the twenty-seven-day work period
schedule.
Again, based on stipulated facts, the parties filed cross-
motions for summary judgment on the damages issue. The
City presented three methods of calculation. The first method
would allow the City to offset previously-paid overtime
cumulatively over the entire three-year period for which the
City was found liable. The second alternative applied the
offsets within the twenty-seven-day work period Defendants
had previously used to establish overtime. The third
alternative applied the offsets on a two-week basis. Plaintiffs
presented one method of calculation: offsets must be applied
on a workweek-by-workweek basis.
14 HARO V. CITY OF LOS ANGELES
E. District Court’s Second Ruling
The district court issued an order selecting Plaintiffs’
calculation method. The district court first noted that circuits
are split over whether a workweek-by-workweek method
must be used, and the Ninth Circuit has not yet addressed the
issue. While the Sixth and Seventh Circuits have ruled that
a week-by-week offset must be used, the Fifth and Eleventh
Circuits have held that offsets may be applied cumulatively
over longer periods of time. The district court was persuaded
by the reasoning of the Sixth and Seventh Circuits.
F. The Appeal
The City maintains that, because dispatchers and
aeromedical technicians contribute in a direct and vital
manner to the Fire Department’s suppression of fires, they
meet the requirements of § 203(y) and thus come within the
scope of § 207(k). The City also contends that, with the
absence of any indicia that Plaintiffs had been misclassified,
the City did not willfully violate the FLSA under § 255(a),
and so a two-year, rather than three-year, statute of
limitations applies. And for the same reasons the City
contends that it had not acted willfully, it also contends that
it acted in good faith, and so should not be liable for
liquidated damages under § 216(b). Finally, the City argues
that the district court improperly applied Plaintiffs’ week-by-
week offset calculation, giving Plaintiffs a windfall.
Plaintiffs maintain that the district court correctly applied and
interpreted all relevant portions of the FLSA.
HARO V. CITY OF LOS ANGELES 15
IV. STANDARD OF REVIEW
This court reviews both the granting of summary
judgment and rulings regarding exemptions to the FLSA de
novo. See Solis v. Washington, 656 F.3d 1079, 1083 (9th Cir.
2011).
V. DISCUSSION
A. FLSA Exemption
The FLSA is to be construed liberally in favor of
employees; exemptions are narrowly construed against
employers. See Cleveland, 420 F.3d at 988 (citing Arnold v.
Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). FLSA
exemptions will not be found “except [in contexts] plainly
and unmistakably within [the given exemption’s] terms and
spirit.” Id. (citing Arnold, 361 U.S. at 392) (internal
quotation marks omitted).
1. Definitions of Employee “Engaged in Fire
Protection” Under § 207(k) and § 203(y)
Section 207(k) exempts employees “engaged in fire
protection” from the standard overtime pay of time and a half
for all hours worked over forty per week.
Section 203(y) in turn defines “employee in fire
protection” as an employee who: (1) is trained in fire
suppression; (2) has the legal authority and responsibility to
engage in fire suppression; (3) is employed by a fire
department; and (4) is engaged in the prevention, control, and
extinguishment of fires or response to emergency situations
where life, property, or the environment is at risk. The City
16 HARO V. CITY OF LOS ANGELES
bears the burden of proving that Plaintiffs meet all these
requirements. See Cleveland, 420 F.3d at 988. At issue in
this case is the second requirement—legal authority and
responsibility to engage in fire suppression.
2. Definitions Under Cleveland
In Cleveland, we held that dual-function paramedics
(those trained as both firefighters and paramedics) were
entitled to standard overtime pay because they are not
“engaged in fire protection” under § 207(k) and § 203(y).
420 F.3d at 991. We implemented a plain-meaning,
common-sense reading of the term “responsibility” in
§ 203(y) to find that, for these paramedics to have a
“responsibility to engage in fire suppression,” they “must
have some real obligation or duty to do so. If a fire occurs, it
must be their job to deal with it.” Id. at 990.
We then applied the § 203(y) definition of “responsibility
to engage in fire suppression” to paramedics, observing that
“when they arrive at fire scenes, paramedics treat injured
people, standby for patient care, and take exhausted
firefighters to the hospital; they do not assist with any fire
suppression.” Id. at 984. We went on to list several key
factors to determine whether paramedics should be
considered “fire protection” employees: (1) dual-function
paramedics do not carry firefighting equipment or breathing
apparatuses, (2) the dispatcher would not know whether he or
she was sending a single- or dual-function paramedic to a
call, (3) paramedic ambulances are not regularly dispatched
to fire scenes, (4) dual-function paramedics are not expected
to wear fire-protective gear, (5) dual-function paramedics are
only expected to perform medical services, and (6) no
paramedic had ever been ordered to perform fire suppression.
HARO V. CITY OF LOS ANGELES 17
Id. at 990. Applying these factors, we concluded that the City
had not shown that dual-function paramedics were “engaged
in fire protection” under § 207(k). Id. Thus, the City was
required to pay dual-function paramedics the standard
overtime rate of time and a half for all hours worked over
forty in a week.2 Id. at 991.
3. Application to Dispatchers
Under the plain meaning of § 203(y), dispatchers do not
have the “responsibility to engage in fire suppression.” The
term most logically refers to those who are dispatched to the
fire scene and actively engage the fire. Plaintiff dispatchers,
working from the City Hall basement, do not suppress the
fire; they send firefighters to the scene to suppress the fire.
Cleveland supports this conclusion. In Cleveland, we
associated fire suppression with actions that occur at the
physical scene of the fire itself. We noted that “when
[paramedics] arrive at fire scenes. . . . they do not assist with
any fire suppression.” 420 F.3d at 984 (emphasis added). In
fact, dispatchers are even further removed from fire
suppression than the paramedics in Cleveland, since those
2
Other circuits have relied on Cleveland’s reasoning. In Huff v. Dekalb
County, the Eleventh Circuit concluded that dual-function paramedics
who, unlike the paramedics in Cleveland, could be ordered to extinguish
fires, were responsible for fire suppression and thus exempt under
§ 207(k). 516 F.3d 1273, 1279–80 (11th Cir. 2008). Likewise, the Eighth
Circuit in Lawrence v. City of Philadelphia held that dual-function
paramedics who, like the paramedics in Cleveland, had no duty or
expectation to put out any fires, were not exempt under § 207(k), even
though they occasionally held fire hoses. 527 F.3d 299, 313–16 (3d Cir.
2008).
18 HARO V. CITY OF LOS ANGELES
paramedics at least traveled to the fire scene itself to perform
medical services.
Furthermore, dispatchers need not be trained in fire
suppression. While Plaintiffs in this case all happen to have
been trained as firefighters, dispatchers trained only as
paramedics do the exact same job and are paid standard
overtime on a forty-hour-workweek basis.
In its defense, the City argues that “responsibility to
engage in fire suppression” should be expanded to all those
employees who make a direct causal contribution to
combating fire, whether or not they are physically present at
the fire itself. We decline such an invitation to expand the
FLSA’s definition. In drafting § 203(y), Congress omitted
parts of the Department of Labor regulation that included
activities causally related to combating fire, such as
“housekeeping,” “equipment maintenance,” and “inspecting
homes and schools for fire hazards.” Congress chose not to
include these important functions in its definition of “fire
suppression.” See 29 C.F.R. § 553.210.
The City selectively quotes from the legislative history of
§ 207(k) and § 203(y) to show Congress’s intent to create an
expansive definition of “employee engaged in fire
suppression activities.” As we noted in Cleveland, however,
courts “can only look to legislative intent when a statute is
ambiguous.” 420 F.3d at 990, n.11 (citing HUD v. Rucker,
535 U.S. 125, 132 (2002)). Here, because the statute is clear
on these facts, review of the legislative history is
unnecessary.’
HARO V. CITY OF LOS ANGELES 19
4. Application to Aeromedical Technicians
Like dispatchers, aeromedical technicians do not “engage
in fire suppression.” Helicopter support operations mainly
consist of medical duties, with the air ambulance substituting
for a road ambulance. Other duties include setting up
equipment, loading hoses and fittings onto helicopters, filling
the helicopters with water, establishing secure landing sites,
and evacuating people. These technicians do none of the
activities normally associated with suppressing a fire.
Similar to the paramedics in Cleveland, aeromedical
technicians are not required to wear full fire protective gear,
regardless of the particular air ambulance helicopter
assignment. Even when an air ambulance is called on to drop
water on a fire, aeromedical technicians never go with the
helicopter. And although aeromedical technicians perform
more duties than road ambulance paramedics, these duties are
limited to support activities, not fire suppression.
For these reasons, we affirm the district court’s holding
that Plaintiff dispatchers and aeromedical technicians do not
“engage in fire suppression” and thus should not be denied
standard overtime pay.
B. Statute of Limitations
Successful FLSA plaintiffs can recover for unlawfully
withheld overtime pay for two years back from the filing date
of a cause of action. 29 U.S.C. § 255(a). When a violation is
“willful,” however, the statute of limitations extends to three
years. Id. To show willfulness, a plaintiff must demonstrate
that the employer “either knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the
20 HARO V. CITY OF LOS ANGELES
statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133 (1988). An employer who knows of a risk that its
conduct is contrary to law, yet disregards that risk, acts
willfully. Alvarez v. IBP, Inc., 339 F.3d 894, 908–09 (9th
Cir. 2003). The employer must take “affirmative action to
assure compliance[.]” Id. at 909. Prior FLSA violations,
“even if they were different in kind from the instant one and
not found to be willful,” put the employer “on notice of other
potential FLSA requirements.” Chao v. A-One Medical
Servs., Inc., 346 F.3d 908, 919 (9th Cir. 2003).
The City’s conduct in this case was willful, thus entitling
Plaintiffs to a three-year statute of limitations. The City has
extensively litigated the meaning of § 207(k). In 2002, the
district court in Cleveland ruled that the City was in violation
of § 207(k) as to dual-trained paramedics and those who held
desk job positions as Quality Improvement Analysts. The
City did not appeal as to the Quality Improvement Analysts,
and lost on appeal as to the paramedics. Yet at no time
thereafter did the City take any steps to obtain an opinion
letter from the Department of Labor regarding Plaintiffs’
positions, although it had done so as to other employees.
Ignoring these red flags and failing to make an effort to
examine the positions at issue in this case show willfulness.
Also, the City itself appears not to have viewed
dispatchers as “engaged in fire protection” until this case was
underway. When this lawsuit began, the City had assigned
dispatchers to the Bureau of Support Services, which
included the Supply and Maintenance Division, Fire Facilities
Division, and Operations Control Division. The Fire
Department’s Manual of Operations states that the primary
objectives of the Bureau of Support Services include “the
dispatching of resources and equipment to the scene of
HARO V. CITY OF LOS ANGELES 21
emergencies; operation of the Department’s . . . Dispatch
Center . . . and the development, maintenance and repair of
Fire Department Facilities.” Three months before the parties
entered into their mutual stipulation of facts, however, the
City reassigned the dispatchers to the Bureau of Emergency
Services, which, according to the Manual of Operations,
includes “[a]ll personnel normally engaged in fire fighting
. . .” The timing of this reassignment provides further
evidence that the City’s behavior was willful.
Thus, we affirm the district court’s finding that the City’s
conduct was willful and justifies a third year of withheld
overtime pay.
C. Liquidated Damages
In addition to overtime compensation, successful FLSA
plaintiffs are entitled to liquidated damages in the amount of
the unpaid overtime compensation (i.e. double damages).
29 U.S.C. § 216(b); Chao, 346 F.3d at 919–20. Double
damages are the norm; single damages are the exception.
Chao, 346 F.3d at 920. Liquidated damages are “mandatory”
unless the employer can overcome the “difficult” burden of
proving both subjective “good faith” and objectively
“reasonable grounds” for believing that it was not violating
the FLSA. Alvarez, 339 F.3d at 909, 910.
The facts outlined in Part B showing willfulness under
§ 255(a) also show a lack of good faith or reasonable grounds
under § 216(b). The City clearly knew of the law because it
had been a party in Cleveland, where it also paid liquidated
damages.
22 HARO V. CITY OF LOS ANGELES
We thus affirm the district court’s grant of liquidated
damages.
D. Offsets for Previously-Paid Overtime
Under the FLSA, 29 U.S.C. § 207(h)(2), an employer may
credit overtime payments already made to employees against
overtime payments owed to them under the FLSA. The
statute, however, does not specify the method to be used to
calculate these overtime payments. The statute simply states
that “[e]xtra compensation . . . shall be creditable toward
overtime compensation payable pursuant to this section.”
29 U.S.C. § 207(h)(2).
In their cross-motions for summary judgment, the parties
presented four different calculation methods. Plaintiffs
advanced one method: credits and offsets must be applied on
a workweek-by-workweek basis. The City argued that credits
and offsets should be viewed as a whole and applied
cumulatively over the entire period for which Plaintiffs
claimed the City was liable. Alternatively, the City
contended that credits and offsets should be applied within
the twenty-seven-day period the City had been using to
calculate overtime. As a final option, the City proposed that
offsets be paid on a two-week-pay-period basis. The district
court agreed with Plaintiffs that credits and offsets must be
applied on a workweek-by-workweek basis.
The district court correctly applied a week-by-week
approach. Section 207(a) sets forth the basic overtime
standard, set at forty hours in a seven-day workweek and time
and one-half for overtime. To determine the overtime owed
for each workweek, the total hours worked over forty is
multiplied by one and one-half the regular rate. Then, under
HARO V. CITY OF LOS ANGELES 23
§ 207(h), the overtime already paid by the employer is
determined and credited against the overtime owed. While
§ 207(h) does not state whether credits must be determined on
a workweek basis, it must still be read within the context of
the overtime due under § 207(a), which is calculated on a
workweek basis. Under this reading, compensation already
paid for work done within one workweek should not be
transferrable and offset against overtime due in another
workweek. This makes sense because Plaintiffs are owed
what they should have been paid had the City obeyed the law.
There is still, however, a split of authority over how to
calculate offsets, and the Ninth Circuit has not yet decided the
matter. The reasoning from circuits supporting a week-by-
week offset is persuasive. In Howard v. City of Springfield,
274 F.3d 1141 (7th Cir. 2001), the Seventh Circuit disagreed
with the defendant that offsetting on a workweek basis would
create an undeserved windfall. Id. at 1148. The court noted
that
if the City were able to use premium
payments [in a cumulative fashion], the City
would be the recipient of the windfall, and in
fact would be placed in a substantially better
position than if it had complied with the
overtime requirements of the FLSA all
along. . . . It is contrary to the language and
the purpose of the statute.
Id.
Likewise, in Herman v. Fabri-Centers of America, Inc.,
308 F.3d 580 (6th Cir. 2002), the Sixth Circuit extensively
reviewed the FLSA’s plain language, caselaw, and § 207(h)’s
24 HARO V. CITY OF LOS ANGELES
legislative history to find in favor of a workweek restriction.
Id. at 586–90.
Both the Seventh Circuit in Howard and the Sixth Circuit
in Herman note that the Department of Labor’s regulations
implementing the FLSA support prompt payment of
overtime, suggesting that overtime payments should be
credited within the same workweek in which they were paid:
The general rule is that overtime
compensation earned in a particular
workweek must be paid on the regular pay
day for the period in which such workweek
ends. When the correct amount of overtime
compensation cannot be determined until
some time after the regular pay period,
however, the requirements of the Act will be
satisfied if the employer pays the excess
overtime compensation as soon after the
regular pay period as is practicable. Payment
may not be delayed for a period longer than is
reasonably necessary for the employer to
compute and arrange for payment of the
amount due and in no event may payment be
delayed beyond the next payday after such
computation can be made.
Howard, 274 F.3d at 1148 (citing 29 C.F.R. § 778.106);
Herman, 306 F.3d at 589.
The City cites alternative, yet unpersuasive, caselaw
supporting a cumulative approach. In Kolheim v. Glynn
County, 915 F.2d 1473 (11th Cir. 1990), the Eleventh Circuit
held that previously-paid overtime can be cumulatively offset
HARO V. CITY OF LOS ANGELES 25
against the damages calculated. Yet the court summarily
decided the issue, citing no supporting authority. Id. at 1481.
Likewise, in Singer v. City of Waco, 324 F.3d 813 (5th
Cir. 2003), the Fifth Circuit affirmed the district court’s
cumulative offset calculation. Yet that case is inapposite, as
the court explicitly stated that Ҥ 207(h) does not apply in this
case,” and that “§ 207(h), and the cases interpreting it, are
inapplicable.” Id. at 827.
We thus affirm the district court’s decision that
previously-paid overtime should be offset using a week-by-
week calculation.
VI. CONCLUSION
Because Plaintiffs do not qualify as “employees engaged
in fire protection” as defined by § 203(y), we AFFIRM the
district court’s finding that § 207(k)’s exemption does not
apply to dispatchers and aeromedical technicians. Because
the City acted in willful violation of the law, we AFFIRM
the district court’s findings that a three-year statute of
limitations applies and liquidated damages are proper. And
because the statutory language of § 207(h), as well as
persuasive authorities, supports a workweek-by-workweek
offset, we AFFIRM the district court’s holding that this
method of calculation must be used.