Rutherford Food Corporation v. McComb, 331 U.S. 722, 727, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). The Act imposes a minimum wage for covered employees, 29 U.S.C. § 206, requires that covered employers maintain records of their employees' services, 29 U.S.C. § 211(c), and prohibits employers from employing any worker for a workweek longer than forty hours unless the employee receives compensation for the excess hours at a rate not less than one and one half times the regular rate at which the worker is employed, 29 U.S.C. § 207(a)(1). A. EMPLOYEE OR INDEPENDENT CONTRACTOR [2] The first question is whether Mr. Santelices can be considered an “employee” of CWI and/or SFCC who is therefore entitled to protection under the FLSA. A determination of employment status under the FLSA is a question of law.

59.8 53 CASE NOS. 05-CV-1629 &06-CV-0538 DMS (RBB) DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW; MEMORANDUM OF PS & AS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 promotion in October 2005, because he has proven no uncompensated overtime for these activities in excess of the 29 U.S.C. § 207(k) partial exemption. Additionally, the City is entitled to judgment as a matter of law that the travel time Sarot is seeking compensation for -- at least two hours per week -- and the court preparation and travel time -- approximately twenty minutes per week -- is not compensable during any period. h. Plaintiff Michael Shiraishi: The City is entitled to judgment as a matter of law on Plaintiff Shiraishi’s claims for all period except from August 16, 2002 to February 28, 2003, because, during these periods, he has proven no uncompensated overtime in excess of the 29 U.S.C. § 207(k) partial exemption. In addition, because Shiraishi’s remaining claims all fall outside the two-year limitations period, if the Court agrees that Plaintiffs have failed to present sufficient evidence to prove that the City, if it violated the FLSA, did so willfully, the City is entitled to judgment as a matter of law as to all of Shiraishi’s claims.

290 Larmour 200 McCollough 170 Sarot 230 Shiraishi 240 22 Trial Tr. 3537:22–3538:14, 3539:6–3540:2, Feb. 9, 2009 (Mack). Case 3:05-cv-01629-DMS-RBB Document 770 Filed 02/11/09 Page 7 of 8 ATTORNEYS AT LAW SAN DIEGO SD\667860.4 7 CASE NOS. 05-CV-1629 &06-CV-0538 DMS (RBB) DEFENDANT’S MOT. FOR JUDG. AS A MATTER OF LAW AT CLOSE OF EVID.; MEMO. OF PS & AS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Assuming a two-year statute of limitations, the City’s liability (if any) should be reduced by the following number of hours, for the period of August 2, 2003 through July 25, 2008: Plaintiff Number of Hours Bane 150 Browder 230 Broxtermann 230 Friedman 260 Larmour 100 McCollough 120 Sarot 200 Shiraishi 230 Because no reasonable juror could find against the City with respect to these § 207(h) offsets, the Court should enter judgment as a matter of law in the City’s favor. IV. CONCLUSION For the foregoing reasons, the City respectfully requests that the Court enter judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) in favor of the City, for the reasons -- and in the manner -- detailed above. Dated: February 11, 2009 LATHAM & WATKINS LLP Office of the City Attorney George Schaefer, Deputy City Attorney By: /s/ Colleen C. Smith Colleen C. Smith colleen.smith@lw.

As I have explained, the service charge is properly construed as a commission and mustbe factored into the calculation. Accordingly, Ms. Nascembeniis within the commissioned work exemption as detailed in 29 U.S.C. § 207(1). As an exempted employee, the Hotel was not required to pay Ms. Nascembeni overtime wages.

Congress targeted that problem—employers owing "overtime on overtime" for particular workweeks—in two steps. Initially, Congress amended 29 U.S.C. § 207(e) to state that "extra compensation [at a defined] premium rate . . . may be credited toward any premium compensation due [an employee] under this section for overtime work." Pub.

The defendant sought credits for extra compensation under Section 207(e) subsections (5) and (6) for overtime payments made where plaintiffs worked more than eight hours in a day, or worked on holidays, or worked on scheduled days off, or on a sixth or seventh day or outside the employee's normal tour of duty. First, the Nolan Court determined that defendant may properly take credits pursuant to 29 U.S.C. § 207(e)(5) because plaintiffs received under their collective bargaining agreement time-and-one- half for all hours worked in excess of the normal work day (eight hours) and the normal work week (forty hours). Id.

Dambreville v. City of Boston, 945 F. Supp 384, 386 (D. Mass. 1996) (striking contradictory affidavit. CONCLUSION Based upon the foregoing, the Court should find that nothing argued by Defendants in opposition to Plaintiffs’ Motion For Summary Judgment filed on October 27, 2006 undermines the conclusion that Plaintiffs’ Motion should be granted, with the additional proviso that the computation methodology applied include offsets under 29 U.S.C. §207(h) in the week accrued, as discussed above. of all funding and this is also shown by Attachments E, F, and G herein, and that the Town allocates funds to each department and the Town Meeting approves the budget for each of the Town’s departments.

413(b), which states that Section 7(i) commissions “include all types of commissions customarily based on the goods and services which the establishment sells, and not exclusively those measured by ‘sales’ of the good and services.” Pep Boys compensation system constitutes a bona fide commission plan that falls squarely within the exemption from overtime requirements as provided by 29 U.S.C. § 207(i). See also 1998 DOLWH LEXIS 84 (October 29, 1998) (System that compensated mechanics on a “flag time” basis whereby the mechanic receives an assigned “flag rate” per hour multiplied by the “flag time” hours to determine compensation constituted a bona fide commission system for 16 FOH § 21h04(d) states in part that: “ Some auto service garages and car dealerships compensate mechanics and painters on the following bases: The painter or mechanic gets so much a ‘flat rate’ hour for the work he or she performs.

Defendants have also cited numerous decisions from this Circuit and through this country in which courts have concluded that businesses that not only are similar in nature to Wave Comm, but virtually identical to it in every respect, qualify under Section 207(i). The Court should, therefore, dismiss all claims being pursued by the members of Subclass I pursuant to 29 U.S.C. § 207(i). 4 Defendants intend to argue through a separate motion that if this case is to proceed for those weeks where, based on the class member's estimate of hours, he did not satisfy the minimum wage requirement, the individualized inquiry that will be required for each class member is inconsistent with the spirit and purpose of the class action form.

Case 1:07-cv-00901-JB-ACT Document 70 Filed 09/04/09 Page 18 of 24 19 CH1 11786418.2 First, the Nolan Court determined that defendant may properly take credits pursuant to 29 U.S.C. § 207(e)(5) because plaintiffs received, under their CBA, time-and-one-half for all hours worked in excess of the normal work day (eight hours) and the normal work week (forty hours). Id.