Schmitt v. State of Kan.

864 F. Supp. 1051

Marshall E. SCHMITT, Terry L. Morgan, and Richard J. Marchewka, on behalf of themselves and other employees similarly situated, Plaintiffs, v. The STATE OF KANSAS, Defendant.

Jeffrey L. COLLIER, Robert S. McKinzie, Charles L. Kohler, and Stephen P. O'Rourke, on behalf of themselves and other employees similarly situated, Plaintiffs, v. The STATE OF KANSAS, Defendant.

Civ. A. Nos. 91-4213-DES, 91-4215-DES.

United States District Court, D. Kansas.

September 15, 1994.

Patricia E. Riley, Weathers & Riley, Brad E. Avery, Topeka, KS, for plaintiffs in Civ. A. No. 91-4213-DES.

Carl A. Gallagher, Office of Atty. Gen., Topeka, KS, C. Steven Rarrick, Linda J. Fund, State of Kan., Dept. of Administration-Legal Section, Topeka, KS, Rogers L. Brazier, Jr., Kansas Dept. of Wildlife & Parks, Topeka, KS, for defendant.

Patricia E. Riley, Weathers & Riley, Topeka, KS, for plaintiffs in Civ. A. No. 91-4215-DES.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

I. INTRODUCTION

This matter is before the court following trial without a jury. Plaintiffs seek compensation for unpaid nonovertime hours. They do not claim common law breach of contract. Instead, they contend that the State violated the Fair Labor Standards Act ("FLSA").

Although the State prevails in the instant case, the court does not believe the State has treated plaintiffs fairly. As law enforcement employees, plaintiffs perform a crucial and often thankless service. Their duties expose them to hazards unfamiliar to other classes of State employees. However, they earn lower effective annualized hourly rates than classes of monthly salaried non-exempt employees who share the same position on the State Pay Plan. The United States Congress has enacted laws under the Fair Labor Standards Act which allow public employers to establish deviated schedules for their law enforcement employees of which the State has taken full advantage. Though the court ultimately finds that the State is within the law, the court is concerned the State's practice sends an unwelcome, albeit unintended, message to a particularly valuable group of State employees.

After carefully considering the record, including the testimony and exhibits offered and admitted at trial, as well as the parties' proposed findings of fact and memoranda and conclusions of law, the court renders the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

II. FINDINGS OF FACT

1. Plaintiffs are past or present full-time classified state law enforcement personnel. During all or part of the period from August of 1988 to the date of trial, the State employed plaintiffs as either Kansas Highway Patrol ("KHP") troopers, sergeants, or pilots; Wildlife and Parks Department ("W & PD") conservation officers; or Kansas Bureau of Investigation ("KBI") special agents I, II, or III.

2. Plaintiffs work thirteen 28-day work periods per year. They work up to 171 nonovertime hours per period and are eligible for overtime pay or compensatory time credits for hours worked in excess of 171. Unlike their work period, plaintiffs' pay period runs from the 18th day of one month to the 17th day of the following month. They are paid 12 times per year.

3. Troopers, turnpike troopers, KBI agents, and conservation officers receive their monthly rate as long as they work, or otherwise are in pay status, 160 hours per work period. Plaintiffs' leave banks are docked eight hours for each day they are absent.¹ Additionally, their leave banks are subject to reduction for absences of less than a day. Plaintiffs receive the same monthly rate whether they work 160 or 171 hours per work period.

4. The KHP plaintiffs have a negotiated Memorandum of Agreement ("MOA") with the State.² Their MOA contains provisions regarding their work schedules and compensation. As to their work schedules, the MOA provides as follows:

WORK SCHEDULE

Within each 28 day work period the standard work day/shift schedule shall be a continuing cycle of six work days of nine consecutive hours each followed by three days off, with one additional scheduled work day during each 28 day work period.

The Patrol and Association recognize and agree certain troopers may be assigned to work day/shift schedules other than the standard and that the responsibilities of the organization and hours actually worked by an individual trooper may necessitate deviations from the standard work day/ shift schedule. Such deviations from the standard day/shift schedule may be made, both in days worked and hours in a day, for justifiable organizational needs, or by mutual agreement between the affected trooper and the appropriate supervisor, or due to extra hours worked during any given 28 day work period.

As to their compensation, the MOA provides as follows:

SALARIES

The Kansas Highway Patrol shall pay all troopers in the appropriate unit in accordance with the approved state pay plan.

5. Sergeants, road troopers, and pilots are scheduled to work nine hours per day on a rotating schedule of six days on, three days off; six days on, three days off; six days on, three days off; with one additional day on per 28-day period. Thus, sergeants, road troopers, and pilots average 171 hours per work period and 185 hours per pay period.

6. The Kansas Turnpike Authority contracted with the KHP to provide troopers for the turnpike. Turnpike troopers are scheduled to work a minimum of eight and one-half and a maximum of nine hours per day on a rotating schedule of six days on, three days off; six days on, three days off; six days on, three days off; with one additional day on per 28-day period. Thus, turnpike troopers average a minimum of 161.5 hours and a maximum of 171 hours per work period and a minimum of 175 hours and a maximum of 185 hours per pay period. Turnpike troopers receive the same salary as other troopers on the same range and step of the State Pay Plan.

7. Some troopers work as court liaison officers. They are scheduled to work 160 hours per period. They receive the same salary as other troopers on the same range and step of the State Pay Plan.

8. Pregnant troopers who are placed on light duty are scheduled to work 40 hours per week. These troopers are not partially exempt under 29 U.S.C. § 207(k).

9. The KBI plaintiffs' regular schedule consists of 40 hours per week and 160 hours per 28-day work period, but their schedules may vary by supervisor. Due to the nature of their work, they often work irregular schedules. When necessary, they work 171 hours per period. Some regularly work 171 hours per period.

10. The W & PD plaintiffs generally set their own schedules. Their schedules often vary from region to region and sometimes even within the same region. Nevertheless, their normal work period consists of 160 hours per 28-day period. The W & PD sets aside the 11 hours between 160 and 171 as "buffer time." These 11 hours are reserved so that conservation officers have nonovertime hours available to respond to emergencies and "call-outs."

11. Neither the KBI nor W & PD plaintiffs have a MOA with the State. The terms of their employment may be found in the applicable State statutes and administrative regulations. Like the KHP plaintiffs, they are paid according to their placement on the State Pay Plan.

12. The State Pay Plan is a series of matrices containing information regarding rates of pay. It is prepared by the Director of the Department of Personnel Services ("DPS") after consultation with the Director of the Budget and Secretary of Administration. Once prepared, the Director submits the Pay Plan to the Governor for approval. If approved, the Pay Plan becomes effective upon the Legislature's appropriation of funds.

13. State employees are assigned different positions on the Pay Plan. If an employee is a member of the classified service, his or her position on the matrix is determined by the DPS. All plaintiffs are members of the classified service. Before it places classified employees on the matrix, the DPS designates classes and categorizes jobs according to class. After examining a particular job, the DPS assigns it to a specific class composed of other jobs with similar duties and responsibilities. A job's duties and responsibilities determine its class placement. The DPS's goal is to assign like jobs to the same class.

14. Once classes have been designated and jobs assigned, each class has to be placed on the pay matrix. Exempt, partially exempt, and non-exempt employees all are placed on the matrix. As part of the placement process, the DPS conducts salary surveys for each class. The DPS uses the surveys to investigate the salaries of jobs with the same duties and responsibilities. The surveys identify the monthly salaries which employers pay for comparable jobs. It is not standard "industry" practice to inquire as to hours worked. In keeping with "industry" practice, the DPS's surveys do not inquire as to hours worked. Based in part on the data obtained in the surveys, the Director assigns each class to a monthly salary position on the matrix. The Director then recommends these assignments to the Governor. The assignments become effective upon the Governor's approval.

15. The standard workweek for non-exempt classified employees is 40 hours. The State's agencies sometimes designate deviations from the standard workweek for a particular class of employees. The State designated deviations for all plaintiffs.³ Under their deviated schedules, plaintiffs work up to 171 nonovertime hours per 28-day work period. When the DPS assigned plaintiffs to positions on the matrix, it was aware plaintiffs worked non-standard schedules.

16. Although required to prepare and publish only monthly and hourly rate schedules, the Director routinely prepares and publishes the following four schedules: (1) annual; (2) monthly; (3) hourly; (4) and overtime. The annual and hourly rates are derived from the monthly rate. For...