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BEASTON v. SCOTLAND SCH. FOR VETERANS' CHILDREN

August 25, 1988

SHERYL BEASTON, VINCENT L. BEASTON, et al., Plaintiffs,
v.
SCOTLAND SCHOOL FOR VETERANS' CHILDREN, PA. DEPT. OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA, Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE.

 Introduction

 This action came for trial before the court on July 12, 1988. The issues have been tried and a decision will now be rendered for the defendants. This memorandum constitutes the findings of fact and conclusions of law required by Fed. R. Civ. P. 52(a).

 Background

 The plaintiffs are former or present houseparents or houseparent supervisors *fn1" at the Scotland School for Veterans' Children located in Franklin County, Pennsylvania. Scotland School is a residential school operated by the Pennsylvania Department of Education. Originally founded to educate orphans and half-orphans (one parent still living) of civil war veterans, the school now accepts orphans and half-orphans of veterans of other wars as well as the non-orphan children of other veterans, who are often indigent. On average, 360 to 380 students in first through twelfth grades attend Scotland School and reside on campus. Most of the male senior high school students are housed in a single dormitory building. The remaining children generally are grouped by grade level and sex and are housed in 26 cottages, each holding up to 13 students. The plaintiffs and other houseparents care for the children while they are in the cottages. Each houseparent supervisor oversees the operation of six to nine cottages and serves as houseparent in his or her own cottage. Currently, and since November, 1985, houseparents work a seven-day shift normally starting at 3:00 p.m. on Friday and ending at 8:30 a.m. on the following Friday. They then normally do not return to work until 3:00 p.m. one week later. The normal working schedule is as follows: Work Paid Hours Breaks Friday: 3:00 p.m. - 11:00 p.m. 8.00 hrs. - work Two paid breaks not taken between .50 hrs. 3-11 p.m. 11:00 p.m. - 7:00 a.m. - sleep, not paid 7:00 a.m. - 8:30 a.m. 1.50 hrs. - work 9.50 hrs. .50 hrs. Saturday: 8:30 a.m. - 11:00 p.m. - work (14.5 hrs.) Less two 1/2 hr. duty free periods 13.50 hrs. One paid break not taken between lunch .25 hrs. and dinner One paid break not taken between .25 hrs. dinner and 11 p.m. 11.00 p.m. - 7:00 a.m. - sleep, not paid 7.00 a.m. - 8:30 a.m. 1.50 hrs. - work 15.00 hrs. .50 hrs. Sunday: 8:30 a.m. - 10.00 p.m. - work (13.5 hrs.) Less two 1/2 hr. duty free periods 12.50 hrs. One paid break not taken between lunch .25 hrs. and dinner One paid break not taken between .25 hrs. dinner and 10 p.m. 10:00 p.m. - 5:30 a.m. - sleep, not paid 5:30 a.m. - 8:30 a.m. 3.00 hrs. - work 15.50 hrs. .50 hrs. Total Hours: 40.00 1.50 Monday 3:00 p.m. - 10:00 p.m. 7.00 hrs. - work through Two paid breaks not taken between .50 hrs. 3-10:00 p.m. Thursday: 10:00 p.m. -5:30 a.m. - sleep, not paid 5:30 a.m. - 8:30 a.m. 3.00 hrs. - work 10.00 hrs. .50 hrs. Total Hours: 40.00 2.00

 On Monday through Thursday from 8:30 a.m. until 3:00 p.m. when the children are in classes, the houseparents have no work-related responsibilities and are free to either remain on campus or leave. They are not compensated for those hours, which are not in dispute in this lawsuit. Nor are the houseparents routinely paid for the hours designated for sleep, during which they are required to remain in their respective cottages. They normally retire to their private bedrooms to sleep, but are free to do whatever they wish so long as they remain in their cottages. During sleep time the houseparents' only responsibility is to investigate and deal with matters of which they become aware, such as illness, homesickness, runaways and disciplinary problems. However, there is no requirement that they maintain a vigilant watch for potential or actual problems. The school takes no action against a houseparent who does not become aware of problems or who does not hear noises in the night.

 Should the sleeping period be interrupted, and the houseparent be called to duty, the interruption may be counted as hours worked. Each houseparent is responsible for recording this duty time on his or her time card and is then paid for that period. *fn2" Sleep time work is generally compensated at one and one-half times the houseparent's usual rate of pay because it is normally overtime. The plaintiffs rarely recorded claims on their time cards for sleep time calls to duty, but when they did, the school has approved them.

 The plaintiffs filed this lawsuit claiming that they are entitled to overtime compensation for the entire sleep period, whether or not they were actually engaged in work. They claim that the defendants' failure to pay them violates the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.

 Discussion

 Section 6 of the FLSA, 29 U.S.C. § 206, requires that employees not specifically exempted be paid a minimum wage. Section 7, 29 U.S.C. § 207, provides that employees working more than forty hours per week must receive at least one and one-half times their regular hourly wage for overtime hours. At issue here is whether the sleep time hours constitute work time and are thus compensable under sections 6 and 7 of the FLSA.

 It is well settled that under appropriate circumstances sleep time constitutes work time. The work week ordinarily includes "all the time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-91, 66 S. Ct. 1187, 1194, 90 L. Ed. 1515, 1525 (1946). In this case it is clear that the plaintiffs are required to remain on campus during the period designated for sleep. However, other factors must be considered. The court agrees with the plaintiffs that the following factors, among others, are relevant: 1) the parties' agreement; 2) whether the employees are required to remain on the employer's premises; 3) the degree to which the employees are permitted to engage in their own activities; and 4) whether the employee's availability is predominantly for the employer's or the employee's benefit. See cases collected at Annotation, Call or Waiting Time as Working Time Within the Minimum Wage and Overtime Provisions of the Fair Labor Standards Act (29 U.S.C. §§ 206, 107), 3 A.L.R. Fed. 675 (1970).

 On the question of whether "waiting time" qualified as "working time," the Supreme Court has written:

 
No principle of law found either in the [FLSA] or in Court decisions precludes waiting time from also being working time. We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether in a concrete case such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial court. . . . This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. His compensation may cover both waiting and task, or only performance of the task itself. Living quarters ...

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