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TOWNSEND v. MERCY HOSP. OF PITTSBURGH

February 10, 1988

Irene Townsend, on behalf of herself and all other present and former employees of Mercy Hospital of Pittsburgh, similarly situated; Deborah Beck, Plaintiffs
v.
The Mercy Hospital of Pittsburgh, Defendant


Ila Jeanne Sensenich, Chief United States Magistrate. Alan N. Bloch, United States District Judge.


The opinion of the court was delivered by: SENSENICH; BLOCH

{F. Supp. 504contd}

[EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 [EDITOR'S NOTE: the page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published document.]

 MAGISTRATE'S REPORT AND RECOMMENDATION

 ILA JEANNE SENSENICH, CHIEF UNITED STATES MAGISTRATE

 I. RECOMMENDATION

 It is recommended that plaintiffs' motion for partial summary judgment be denied and that defendant's motion for summary judgment be granted.

 II. REPORT

 The plaintiffs, operating room technicians and nurses, now or formerly employed by defendant, The Mercy Hospital of Pittsburgh, bring this action to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Plaintiffs claim that defendant is violating the Act by failing to pay them, during their nighttime shift (referred to as "on-premises-on-call"), 1 1/2 times the hourly wage they make during their daytime shifts. Instead, during their "on-premises-on-call" shifts they are paid 1 1/2 times the minimum wage unless they are actually called to perform duties, in which case they are paid 1 1/2 times their daytime hourly wage during the time they are actually working. During their "on-premises-on-call" shift, during the time they are receiving 1 1/2 the minimum wage, they have no assigned duties. Their official status is that they are to be available to be called to duty if the need arises. No surgery is scheduled during these shifts and the employees are free to read, sleep or pursue whatever other reasonable, non-job related activity they desire. The hospital provides rooms on the premises near the operating rooms for their use. The rooms contain beds, televisions, chairs, and toilet facilities.

 Plaintiffs argue that by paying them 1 1/2 times the minimum wage rather than 1 1/2 times the rate they receive for working during the daylight shifts, the defendant violates 29 U.S.C. Section 207(a)(1) which provides:

 
(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

 Defendant, however, replies that the two different rates are authorized by 29 U.S.C. Section 207(g)(2) which provides as follows:

 
(g) Employment at piece rates
 
No employer shall be deemed to have violated subsection (a) of this section by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under such subsection if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by him in such workweek in excess of the maximum workweek applicable to such employee under such subsection --
 
. . . .
 
(2) in the case of an employee performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half times such bona fide rates applicable to the same work when performed during nonovertime hours;

 Plaintiffs argue that in order to base the rate of pay for non-productive "on-premises-on-call" shifts upon the minimum wage, the defendant would have to pay them the minimum wage for periods during their daylight shifts when they are resting between duties. The defendant replies that the insignificant occasions when plaintiffs rest between duties during their daylight hours are not equivalent to their "on-premises-on-call" shifts and cites in support of its position Opinion Letter No. 1125 (September 15, 1970) of the Wage-Hour Administrator, a copy of which is attached as Exhibit "A" to defendant's brief in support of its motion for summary judgment. In that Opinion Letter the administrator advised that hospital laboratory technicians could be compensated for standby or on-call time at any rate which was not less than the applicable minimum wage, although the actual productive laboratory work had to be paid for at the same rate applicable to the normal day shift. Plaintiffs note that the Opinion Letter is not binding in this court, citing Skidmore v. Swift & Co., 323 U.S. 134, 137, 139-40, 65 S. Ct. 161, 163-64, 89 L. Ed. 124 (1944). However, in that case the Court specifically stated:

 
We consider that the rulings, interpretations and opinions of the administrator under this act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

 Therefore, although the Opinion Letter is not binding, this court can consider it for guidance.

 The cases cited by plaintiffs are not helpful since they merely held that employees are required to be compensated for time "on-call." They did not address the issue as to the rate the employees had to be paid. Skidmore v. Swift & Co., supra; Brock v. DeWitt, 633 F. Supp. 892 (W.D. Mo. 1986); Armour and Co. v. Wantock, 323 U.S. 126, 89 L. Ed. 118, 65 S. Ct. 165 (1944); Campbell v. Jones & Laughlin Steel Corp., 96 F. Supp. 189 (W.D. Pa. 1951). In this case plaintiffs are paid 1 1/2 times the minimum wage during their non-productive "on-premises-on-call" shifts and they are paid 1 1/2 times their daylight wage when they are actually assigned duties. For instance, when they are assigned duties during their "on-premises-on-call" shifts, the duties are the same as those performed during their other shifts. The defendant cites cases in support of its position that it can pay a lower rate for work which is different from an employee's regular duties. McCrary v. Weyerhaeuser Co., 457 F.2d 862 (9th Cir. 1972); Hodgson v. Penn Packing Co., 335 F. Supp. 1015 (E.D. Pa. 1971). The critical question appears to be whether plaintiffs' non-productive "on-premises-on-call" shifts involved the same work as their daylight shifts. Plaintiffs argue that it does because when they are actually called to work they perform the same duties they perform during their daylight shifts. However, during the time they are performing those duties they are paid 1 1/2 times the rate they receive during their daylight shift. It is only when they are engaged in no duties and are merely "available" that they receive 1 1/2 times the minimum wage. It appears to the magistrate that the duties they perform during their non-productive "on-premises-on-call" shifts is substantially different from their duties during their daylight shifts. They are simply being paid for being available which would justify a lower rate than when they are actually performing duties for which they have specialized training.

 Plaintiffs argue that there are times during their daylight shifts when they are not actively working but are merely waiting to be assigned duties and therefore, are in the same status as their non-productive "on-premises-on-call" shifts and that since they receive their regular compensation for these times, rather than the minimum wage, they are entitled to 1 1/2 times that wage during their "on-premises-on-call" shifts. However, review of the exhibits they refer to does not support their claim that their duties during non-productive times in their daylight shifts are similar to their duties during their non-productive times during their "on-premises-on-call" shifts. Plaintiffs refer to the deposition of Janet Routh, pages 41 and 43-44. She testified as follows:

 
Q. There are times, I presume, when there is more manpower than procedures needing that manpower?
 
A. Yes, sir, sometimes.

 (Tr. 41).

 
A. We always maintain one operating room for emergencies, yes, sir.
 
Q. And you maintain a technician and a nurse to cover that operating room?
 
A. Yes, sir.
 
Q. What is that technician and nurse doing?
 
A. When?
 
Q. Waiting?
 
A. Waiting, relieving for coffee breaks, picking up surgical instruments, relieving for lunch.
 
Q. Maybe sitting reading a magazine?
 
A. Not usually, they are usually busy, they take their break, they usually ...

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