The interpretive regulations are silent on how to distinguish
between a bargained-for agreement and a unilaterally imposed term
of an employment relationship. The caselaw, however, sheds
considerable light on the distinction. I begin by noting that,
whatever the personnel manual recited, there had to be some
contract of employment between plaintiffs and defendant, whether
express or implied. The only question is what its terms were, and
it is well-settled that implied agreements will satisfy the
interpretive regulations at issue here. See Ariens v. Olin
Mathieson Chem. Corp., 382 F.2d 192, 197 (6th Cir. 1967);
accord Braziel, 166 F.3d at 1063; Trocheck v. Pellin Emer.
Med. Serv., Inc., 61 F. Supp.2d 685, 693 (N.D.Ohio 1999);
Beaston, 693 F. Supp. at 240.
Thus, in Bouchard, the Eighth Circuit rejected plaintiffs'
argument that a sleep time provision in a written employment
agreement was unilaterally forced on employees when: (1) it
"codified the parties' prior employment relationship"; and (2)
there was no evidence that any refused to sign the agreement. 939
F.2d at 1330-31. Likewise, in Beaston, a written agreement that
restated past practice and was understood and accepted by
plaintiffs was held to have been bargained for and not
unilaterally imposed. 693 F. Supp. at 240. And in Braziel, the
court held that plaintiffs who "understood and acquiesced to [an
existing] policy when they were hired" were parties to an
implied agreement, noting that there was no unilaterally imposed
change in sleep time compensation after plaintiffs began their
employment. 166 F.3d at 1063-64 (citing Ariens, 382 F.2d at
197; Bouchard, 939 F.2d at 1330-31).*fn14 The same facts are
present here, as it is undisputed that defendant never changed
its sleep time policies after plaintiffs were hired. Dkt. no. 33,
exh. F at 137-38; exh. G at 17. Finally, in Trocheck, the court
found an implied agreement where the sleep time policy was
explained, the employee cashed his paychecks, did not complain
within a short time of beginning employment and did not refuse to
work his whole shift. 61 F. Supp.2d at 693-94; accord Baker v.
Stone County, 41 F. Supp.2d 965, 993 (W.D.Mo. 1999) ("[T]he
courts have overwhelmingly held that continuance of employment
can be evidence of an implied agreement as to the terms of that
employment." (collecting cases, citations and internal quotation
Here, there can be no question but that plaintiffs entered into
at least an implied agreement with defendant over sleep time.
Defendant explained its policies on that subject either before
plaintiffs were hired, or, at worst, very shortly thereafter.
Plaintiffs signed off on the personnel manual which contained the
policy, and two of the plaintiffs either agreed or strongly
agreed that the policies had been clearly explained. Finally,
there is no indication that any plaintiff lodged any formal
protest or refused to accept a paycheck prior to the filing of
this litigation. See dkt. no. 33, exh. G at 21-23; exh. H at 98
(Shannon merely "mentioned" the issue to management.),100
(Shannon acknowledged that no one made a written complaint.);
exh. I at 41 (Yingling); exh. J at 59, 80-81 (Reese complained
only orally to management).
That leaves the question whether the agreement on sleep time
compensation was "reasonable." Section 785.23 provides that the
parties may enter into "any reasonable agreement . . . which
takes into consideration all of the pertinent facts[,]"
recognizing that it is "difficult to determine the exact hours
worked" when an employee resides on his employer's premises for
an extended period of time. Memorandum 88.48, however, goes
further and attempts to more particularly define what is
According to the Memorandum, the following criteria must be met:
(1) the employer and the employee have reached
agreement in advance that sleep time is being
(2) adequate sleeping facilities with private
quarters . . . were furnished;
(3) if interruptions occurred, employees in fact got
at least five hours of sleep during the scheduled
(4) employees are in fact compensated for any
interruptions in sleep; and
(5) no more than eight hours of sleep time is [sic]
deducted for each full 24-hour on-duty period.
Id. at 4-5.
These requirements track those specifically enumerated in §
785.22, and it may well be questioned whether, in a letter
ruling, the agency may legitimately incorporate detailed
requirements of one interpretive rule into another which is
silent on those issues. Cf. Bouchard, 939 F.2d at 1329 n. 3
(criticizing Memorandum 88.48's requirement that employees "be
compensated `for at least eight hours in each of five consecutive
24-hour periods'" as "an unreasonable attempt to dictate the
precise nature of relationships that . . . the regulation
acknowledge[s] will vary"); note 12, supra. But, both the
codified rule and the Memorandum simply reflect the agency's view
of what the statute requires, and the latter is simply a
refinement, based on accumulated agency expertise, of what is
reasonable in the specific context of a group home. The
Memorandum in no way contradicts either the statute or previous
agency interpretation (at least, defendant has made no such
argument), and it is undisputed that defendant was aware of its
contents. I therefore decline to exclude its requirements from my
To the extent, of course, that defendant's proffered sleep time
policies are as they assert, they are in full compliance with
both § 785.23 and the Memorandum and therefore reasonable as a
matter of law. Plaintiff, however, has adduced evidence, albeit
slender and subject to credibility attack, that the policies as
implemented were not in compliance with the Memorandum. According
to plaintiff, defendant paid overtime only if an employee
received less than five hours sleep and told employees not to
turn in any other overtime for sleep interruptions. If the
factfinder credits this testimony, then the agreement in practice
cannot be found reasonable under § 785.23.*fn15 Thus, I must
deny the motion for summary judgment.*fn16
An appropriate order follows.
AND NOW, this twenty-seventh day of January 2000, upon
consideration of defendant's motion for summary judgment, dkt.
no. 32, and the responses thereto, it is hereby
ORDERED and DIRECTED that:
1. the foregoing motion is DENIED;
2. plaintiffs shall file their pretrial statement by February
3. defendant shall file its pretrial statement by February 24,
4. a pretrial conference shall be held at 319 Washington
Street, Johnstown, Pa. on Wednesday, March 22, 2000, at 4:30 P.M.
5. the above-captioned case shall be listed for trial before
the undersigned at the convenience of the court.