Holding: The hazardous duty pay, which the plaintiffs receive monthly, may well constitute a “nominal fee.” Even so, plaintiffs are not volunteers under the Fair Labor Standards Act ... are paid on an hourly basis while they work as bomb unit technicians [and] they qualify as employees under the Act.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Joseph J. Dornbos, et al.,
Plaintiffs,
v.
James O’Grady,
Defendant
No. 88 C 4055
1990 U.S. Dist. Lexis 15050
1990 WL 179711
November 6, 1990
November 8, 1990, Docketed
James B. Zagel
United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant moves for summary judgment on six separate grounds: First, the plaintiffs cannot sue under the Fair Labor Standards Act, 29 U.S.C. §201, et seq, because they are not “employees” under the Act. Second, plaintiffs Dornbos, Marak, and Spight are exempt as bona fide administrative personnel and, therefore, cannot recover under the Act. Third, even if plaintiffs could recover under the Act, they have not established a prima facie case for recovering for their on-call time under the Act. Fourth, even if plaintiffs could recover under the Act, they are not entitled to “portal to portal” pay under the Act. Fifth, the pendent state claim for unjust enrichment should not be heard by this Court because the plaintiffs have failed to state a federal cause of action. Sixth and finally, even if this Court chose to exercise its pendent jurisdiction, the plaintiffs have failed to show a prima facie case for unjust enrichment according to the undisputed facts. Defendant’s motion is granted in part and denied in part.
I. Employee Status under the FLSA
Defendant argues the plaintiffs fall within the category of “volunteers” under the Fair Labor Standards Act, 29 U.S.C. § 203(e)(4)(A). The “volunteer” exclusion covers individuals who volunteer to perform additional services which are not the same type of services they have been employed to perform and for which they receive no compensation or a nominal fee. Id. Defendant argues that the services required of a bomb unit technician are not the same type as those required of a police officer. Plaintiffs counter that the bomb unit technicians must be police officers, engage in protecting the public from danger, and carry out typical law enforcement duties such as detective work. Whether or not the services plaintiffs perform as bomb unit members are of the same type as the services they perform as police officers, especially judged by the summary judgment standard which grants the plaintiffs all reasonable inferences of fact, cannot be resolved as a matter of law in favor of the defendant. Therefore, defendant could not prevail on this issue on a motion for summary judgment.
Furthermore, the second part of the test resolves the question of “volunteer” status in favor of the plaintiffs. The hazardous duty pay, which the plaintiffs receive monthly, may well constitute a “nominal fee.” Even so, plaintiffs are not volunteers under the Fair Labor Standards Act because they receive compensation, based on their regular rate of pay as police officers for hours worked, for the time they spend responding to a call for bomb technicians. Because they are paid on an hourly basis while they work as bomb unit technicians, they qualify as employees under the Act.
II. Bona Fide Administrative Employee Status
Defendant argues that plaintiffs Dornbos, Marak, and Spight are exempted from coverage under the FLSA because they are bona fide administrative personnel. Certain provisions of the Act do not apply to individuals employed in a bona fide administrative capacity. 29 U.S.C. §213(a)(1). The Department of Labor standards, as described at 29 C.F.R. §241.2, have been adopted by the federal courts and divided into two tests, the “short” test and the “long” test. O’Dell v. Alyeska Pipeline Service Co., 856 F.2d 1452 (9th Cir. 1988); Clark v. J.M. Benson Co., 789 F.2d 282 (4th Cir. 1986); Wilson v. City of Charlotte, N.C., 717 F. Supp. 408 (W.D. N.C. 1989).
Employees, like the plaintiffs, who earn $250.00 or more per week fall under the short test. 29 C.F.R. § 541.2(e)(2); Clark, 789 F.2d at 285; Wilson, 717 F. Supp. at 412. The first prong of the test requires that the employee’s primary duty consist of “office or nonmanual work ‘directly related to management policies or general business operations.’“ Clark, 789 F.2d at 286. “‘Primary duty’ means ‘the major part or over 50%’ of the employee’s time”, according to the regulations. Id. Whether or not plaintiffs Dornbos, Marak, and Spight spend the major part of their time on office work directly related to management policies or general business operations remains a genuine issue of fact. The second prong, that their duties include the exercise of discretion and independent judgment, is satisfied, according to the undisputed facts. Ultimately, the defendant bears the burden of proving an exemption from the Act. Id. at 286-87. In addition, in a motion for summary judgment, the moving party bears the burden of proving the absence of a material dispute. Defendant has failed to carry that burden in his motion for summary judgment. Whether or not plaintiffs Dornbos, Marak, and Spight are bona fide administrative employees under the FLSA, and therefore exempt employees, remains a question for the factfinder.
III. Compensable Time
Defendant argues that plaintiffs have failed to state a claim under the FLSA because their on-call hours are not compensable. This question is to be resolved according to the facts and circumstances of each case. Skidmore v. Swift, 323 U.S. 134 (1944); Norton v. Worthen Van Service, 839 F.2d 653, 654 (10th Cir. 1988). The relevant standard for determining whether on-call time constitutes compensable work is whether the conditions are “so circumscribed that they restrict the employee from effectively using the time for personal pursuits.” 29 C.F.R. § 553.221.
From the undisputed facts, a genuine issue remains as to whether the bomb unit employees are so tethered that their time cannot be said to be their own. They are on-call for twenty-four hour periods, they must respond to calls quickly (given the nature of their work and according to undisputed facts), and they must respond in a specially equipped vehicle. On the other hand, the undisputed facts show that all plaintiffs have on occasion used their on-call time for personal pursuits. Reasonable factfinders could disagree about the extent to which the employees can use the time effectively for their own purposes. Therefore, whether or not on-call, non-response time constitutes compensable hours worked under FLSA is a material fact and defendants cannot maintain that this key issue is not hotly disputed. Summary judgment is inappropriate and is denied on this issue.
IV. Portal-to-Portal Pay
Defendant argues that plaintiffs are not entitled to compensation under the Portal-to-Portal Act, 29 U.S.C. § 251-262. Plaintiffs cannot recover for travel time “to and from the actual place of performance of the principal activity . . . [or for] activities which are preliminary to or postliminary to said principal activity.” 29 U.S.C. § 254(a)(1) and (2). Plaintiffs argue that, since they must drive and respond to bomb unit calls in a specially equipped vehicle, they should be compensated for their travel time. Every case “involving compensation for travel time ‘must be decided upon its peculiar facts.’“ Crenshaw v. Quarles Drilling Corp. 798 F.2d 1345, 1350 (10th Cir. 1986).
Plaintiffs currently receive compensation for travel time while responding to a call, according to the uncontested facts. This situation involves travel time in a specially equipped vehicle used to transport necessary equipment to a bomb site, an activity “so closely related to the work which they . . . perform, that it must be considered an integral and indispensable part of” their work. Crenshaw, 798 F.2d at 1350. On the other hand, compensating the plaintiffs for travel time while they are not on-call but still drive the specially equipped car to work as police officers seems quite different. This activity is not an indispensable part of their jobs as police officers, the principal activity to which they are headed. In the unlikely event that they are required to respond to a bomb call, despite not being on-call, they will be compensated as always for their response time.
The third situation, travel during on-call, non-response time in the specially equipped car, remains a question for the trier of fact. Whether or not this travel time is “integral and indispensable”, in light of the need for quick response to bomb calls, presents a material dispute over which reasonable minds could differ. On the issue of portal-to-portal pay, the defendant’s motion is granted in part and denied in part.
V. Unjust Enrichment
Since the plaintiffs have presented a valid federal claim and since the state claim does arise from the same facts, this Court will exercise its pendent jurisdiction over the state claim. Unjust enrichment is an equitable claim that the defendant has unjustly retained a benefit to the detriment of the plaintiffs, against the fundamental principles of justice, equity, and good conscience. Knapp v. McCoy, 548 F. Supp. 1115, 1118 (N.D. Il. 1982); HPI Health Care v. Mt. Vernon Hospital, 131 Ill. 2d 145, 137 Ill. Dec. 19, 26 (Il. 1989)
A federal statutory benefit does not automatically support a state unjust enrichment remedy. The defendant has paid plaintiffs their regular hourly pay, including time and a half for overtime, for responding to bomb calls. In addition, defendant has paid plaintiffs a separate monthly sum for hazardous duty, without regard to whether they have responded to any bomb calls that month. The question of additional compensation under the Fair Labor Standards Act is close enough to require a factfinder’s decision, because reasonable factfinders could disagree after hearing all the facts. On such a close statutory interpretation, the defendant cannot be said to have unjustly retained a benefit against fundamental principles of justice, equity, and good conscience. The defendant’s motion for summary judgment on Count III is granted.
For the reasons stated above, defendant’s motion is granted in part and denied in part.