Opinion
Civ. No. 00-6293-HO.
October 29, 2004
ORDER
Plaintiffs assert overtime claims under state and federal law. Defendant moves for partial summary judgment on the issue of how time worked should be calculated under Oregon law and the facts of this case. Summary judgment is appropriate if there are no disputed issued of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©).
Plaintiff's state law overtime claims arise under Or.Rev.Stat. §§ 653.268 (formerly 279.340) and 652.020. The parties dispute whether Section 652.020 applies to defendant, but have not addressed the issue in their filings. The court expresses no opinion on the issue.
Undisputed Facts
For the purpose of resolving defendant's motion, the parties have stipulated to the facts stated at pages 3-10 in the order dated August 30, 2001. The following background facts are taken from the opinion of the court of appeals in this case, Brigham v. Eugene Water Electric Board, 357 F.3d 931 (9th Cir. 2004). Plaintiff Brigham's decedent and the three other plaintiffs worked and were required to live (along with their families) on-site at defendant's Carmen Smith electric power generating facility, approximately 71 miles east of Eugene, Oregon, in housing provided by defendant. The facility's emergency action plan required the on-site presence of two employees — one maintenance employee and one duty employee — at all times. Id. at 933.
These employees worked four-day weeks, which usually were comprised of three "maintenance" shifts and one "duty" shift. On maintenance shifts, the employees worked from 6:30 a.m. to 5:00 p.m. Accounting for breaks, the employees performed ten hours' work during the course of a maintenance shift and accordingly were paid ten hours' wages. Any work performed beyond ten hours was paid at a double-time rate.
In contrast, duty shifts lasted a full 24 hours. During that time, a designated employee was responsible for the operation and safety of the entire project. Between 6:30 a.m. and noon, he was charged with monitoring, inspecting, and logging the status of the two generating plants and performing any necessary maintenance. At noon, he usually returned to his house. In the evening, he was required to inspect and again to log the status of powerhouses, a task which took about an hour. Thereafter — and indeed, for the entirety of his shift — the on-duty employee was required to remain at Carmen Smith, available for emergency phone or radio contact with the central dispatcher in Eugene. Each house on the site was also equipped with a system that would alert the employee to any automated monitoring alarms, to which (along with any calls from the central dispatcher) the duty employee was required to respond "immediately." Subject to these restrictions — as well as the requirement that they be "fit" — on-duty employees were free to sleep, to eat, and to spend time with their families.
Although the employees performed only about 6 hours of scheduled work during the course of a duty shift, they were paid ten hours' wages. On-duty employees also were compensated at a double-time rate for any call-out time lasting beyond a call's first 15 minutes. And, in addition to these wages, EWEB provided the employees with free housing, electricity, water, garbage service, and satellite television, along with a bus driver and the cost of fuel and maintenance for a school bus to transport the employees' children to school.
Between their maintenance and duty shifts, the employees were often on some form of duty status either performing actual maintenance or on standby for as much as 60 hours per week.Id. at 933-34.
Discussion
Plaintiff's contend that all twenty-four hours of each duty shift constitute hours worked under Oregon law. Defendants seek a ruling that plaintiffs are not entitled to be compensated for all twenty-four hours of each duty shift, and that the parties reasonably agreed that plaintiffs were entitled to be paid for ten hours per duty shift, unless they actually were responding to alarms, which response time was in excess of fifteen minutes.
Plaintiffs contend that subsection (2) of OAR 839-020-0041, the "waiting time rule" controls under the facts of this case, and they were not "off duty" within the meaning of that rule at any time during their duty shifts. The rule provides,
Periods during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for the employee's own purposes are not hours worked. The employee is not completely relieved from duty and cannot use the time effectively for the employee's own purposes unless the employee is told in advance that the employee may leave the job and that the employee will not have to commence work until a specified hour has arrived. Whether the time is long enough to enable the employee to use the time effectively for the employee's own purposes depends upon all of the facts and circumstances of the case.
OAR 839-020-0041(2). Defendant contends the so-called "employer premises rule" applies to the facts of this case. That rule provides,
An employee who resides on the employer's premises on a permanent basis or for extended periods of time is not considered as working all the time the employee is on the premises. Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when the employee may leave the premises for the employee's own purposes. To determine the exact hours worked, any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.
OAR 839-020-0042(3). Plaintiffs argue that even if the employer premises rule applies and an agreement exists, Oregon law requires that a jury determine the terms of the agreement, whether it is reasonable, and the number of uncompensated hours in each duty shift to exclude from the overtime calculation.
For purposes of plaintiffs' federal overtime claims, the court of appeals was "quite certain" the parties had an "eminently reasonable" agreement regarding plaintiffs' duty shift compensation. 357 F.3d at 938-39, 942. There is no basis upon which a reasonable fact-finder could reach a different conclusion for purposes of plaintiffs' state law overtime claims, based on the undisputed facts that each plaintiff was aware of defendant's duty shift compensation policy when he began working duty shifts.See Order at 8; Brigham, 357 F.3d at 939; Yartzhoff v. Democrat-Harold Publishing Co., 576 P.2d 356, 359-60 (Or.App. 1978).
The remaining legal issue is whether all twenty-four hours of each duty shift is hours worked, notwithstanding the parties' reasonable agreement. Where, as here, the Oregon Supreme Court has not determined which administrative rules should apply to the facts of this case, the court predicts how that court would decide the question. Capital Development Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir. 1997). Decisions of the Oregon Court of Appeals are relevant to the prediction. Id.
In the order dated August 30, 2001, the court stated it would apply the same analysis to plaintiff's state and federal overtime claims, based on similarities between the state and federal statutes and the state administrative rules and federal regulations, and the absence of an indication that Oregon's courts would interpret "working time" different under Oregon law than under federal law. Order at 10-11. Since that time, the Oregon Court of Appeals held in Perri v. Certified Languages Int'l, LLC, 66 P.3d 531 (Or.App. 2003) that summary judgment was improper in that case based on disputed issues of fact as to whether the plaintiff was off-duty within the meaning of the waiting time rule during shifts in which she alleged she was required to answer her employer's phone line, which had been installed in her home. 66 P.3d at 536. Plaintiffs contend Perri is an indication the Oregon Supreme Court would apply the waiting time rule in the case at bar to determine the number of hours actually worked by plaintiffs.
Perri is not on point. Ms. Perri worked at the defendant's business during the day, and worked at home answering the phone one or two nights per week, and during one 24-hour shift on the weekend. Perri, 66 P.3d at 533. Neither party argued that the employer premises rule applied to Ms. Perri's call shifts. See Guest Decl., Ex. 1. Unlike Ms. Perri, plaintiffs in the case at bar were required to reside on their employer's premises, and the undisputed facts demonstrate that the parties reasonably agreed that otherwise formally uncompensated duty shift call time is equivalent to approximately four hours' actual work. Brigham, 357 F.3d at 942.
Plaintiffs are more similarly situated to the plaintiff in Baxter v. M.J.B. Investors, 876 P.2d 331 (Or.App. 1994). In that case, the resident manager of an adult foster care home alleged she was entitled to overtime compensation. She was required to work "five days on and two days off," and was required to remain on the premises of the foster home round the clock on work days. Id. at 340. The court approved the trial court's use of a jury instruction based upon the employer premises rule, noting that the rule (which it referred to as subsection (3) of the "hours worked rule") provides a method for calculating the number of hours that are deemed "work" for a very specific employment setting. Id. at 334-35. Baxter supports the proposition that the employer premises rule should be used to determine the number of hours deemed work for employees who are required to reside on the employer's premises. Believing the Oregon Supreme Court would so hold, this court holds that the employer premises rule, OAR 839-020-0042(3), should be used in the case at bar to determine the number of hours worked on duty shifts for purposes of plaintiffs' state law overtime claims. Thus, the court accepts the parties' reasonable agreement that duty shift scheduled time and otherwise formally uncompensated call time combined is deemed equivalent to ten hours' actual work. See Brigham, 357 F.3d at 942.
Plaintiffs seem to argue that even if the employer premises rule applies, a fact-finder must nevertheless determine how many duty shift hours were reserved for "eating, sleeping, entertaining, and other periods of complete freedom from all duties when [plaintiffs could] leave the premises for purposes of [their] own." See OAR 839-020-0042(3) (2nd sentence) ("Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when the employee may leave the premises for the employee's own purposes."); Pls' Memo. at 7. The court does not read this sentence to require a fact-finder to determine whether plaintiffs experienced periods of "complete freedom" on duty shifts. This portion of the employer premises rule simply describes conditions characteristic of the kinds of situations to which the rule applies, including the factual circumstances of this case. It is undisputed that on maintenance shifts, plaintiffs could leave Carmen Smith briefly for their own purposes, although they were required to sleep in the employer-provided housing when not on vacation, and each plaintiff worked seven or eight duty shifts per month, on average. Order at 4, 9.
It is unnecessary and arguably inappropriate for the court to rule that plaintiffs are not entitled to be compensated for twenty-four hours of each duty shift, as defendant requests. Viewed from a certain perspective, the parties' agreement compensates plaintiffs for all hours of the twenty-four hour duty shift.
The court holds as a matter of Oregon law, OAR 839-020-0042(3) applies under the undisputed facts of this case to determine the number of hours worked on duty shifts (exclusive of call-out time in excess of fifteen minutes for which plaintiffs were paid double-time), and the parties reasonably agreed that duty shift scheduled time and otherwise formally uncompensated call time combined should be deemed equivalent to ten hours' actual work.
Conclusion
Based on the foregoing, defendant's motion for partial summary judgment [#100] is granted in part and denied in part, as provided herein.
IT IS SO ORDERED.