Calvao, et al v. Framingham, Town of

Filing 920100315

Opinion

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var WPFootnote1 = '                   Section 207(k) reads in its entirety:\
\
              (k) Employment by public agency engaged in fire\
protection or law enforcement activities.\
 \
              No public agency shall be deemed to have violated\
subsection (a) of this section with respect to the\
employment of any employee in fire protection activities\
or any employee in law enforcement activities (including\
security personnel in correctional institutions) if--\
 \
                   (1) in a work period of 28 consecutive days the\
employee receives for tours of duty which in the\
aggregate exceed the lesser of (A) 216 hours, or\
(B) the average number of hours (as determined by\
the Secretary pursuant to section 6(c)(3) of the\
Fair Labor Standards Amendments of 1974) in tours\
of duty of employees engaged in such activities in\
work periods of 28 consecutive days in calendar\
year 1975; or \
 \
                   (2) in the case of such an employee to whom a work\
period of at least 7 but less than 28 days applies,\
in his work period the employee receives for tours\
of duty which in the aggregate exceed a number of\
hours which bears the same ratio to the number of\
consecutive days in his work period as 216 hours\
(or if lower, the number of hours referred to in\
clause (B) of paragraph (1)) bears to 28 days, \
 \
              compensation at a rate not less than one and one-half\
times the regular rate at which he is employed.\
 \
The work period at issue here falls under clause two.\
'

var WPFootnote2 = '                   We will assume arguendo, to the officers\' benefit, that\
the Town\'s dissemination of the April 11, 1986, memorandum to the\
various department heads, and subsequent maintenance of the\
document as a public record, available for inspection under\
Massachusetts law, see Mass. Gen. Laws ch. 4, § 7; id. ch. 66,\
§ 10, did not constitute notice to its employees.\
'

var WPFootnote3 = '                   When it enacted the 1985 amendments to the FLSA Congress\
delegated authority to the Secretary to promulgate "such\
regulations as may be required to implement" them. Fair Labor\
Standards Amendments § 6, 99 Stat. at 790. Since these amendments\
concerned, inter alia, alternative compensation for public\
employees to whom "overtime compensation is required" by the FLSA,\
29 U.S.C. § 207(o)(1), the implementing regulations necessarily\
addressed both the 1985 amendments and prior FLSA provisions\
concerning public employees, including § 207(k). See 29 C.F.R.\
§ 553.2(a). The Secretary\'s interpretation of a § 207(k) "work\
period" explicitly cited the 1985 delegation as a source of its\
authority. 29 C.F.R. § 553.224.\
'

var WPFootnote4 = '                   Plaintiffs\' argument relies heavily on dicta in an Agawam\
footnote, in which we, too, paraphrased this requirement, observing\
that an employer must "announce and take bona fide steps to\
implement a qualifying work period." Agawam,350 F.3d at 291 n.21. \
Plaintiffs assert this language implicitly mandated a notice\
requirement. Their reading is inconsistent with the text and\
history of § 207(k) and its implementing regulations, and does not\
reflect the standard we applied in Agawam.\
'

var WPFootnote5 = '                   In Martin, we affirmed a district court\'s ruling that the\
fifty-three-hour workweek provided for firefighters by § 207(k)\
should be used to calculate damages for firefighters who had not\
been paid sufficient overtime. See 981 F.2d at 1359-62. There was\
no indication that the defendant municipal employer in Martin had\
not used a § 207(k)-compliant work period, nor did the Martin\
plaintiff so argue. See id. at 1359-60.\
'

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