Thursday, October 22, 2009

Parth v. Pomona Valley Hosp. Med. Center (9th Cir. - Oct. 22, 2009)

Here's another case -- and there are assuredly many -- that in my mind clearly disproves our Chief Justice's assertion that appellate judges properly merely "call balls and strikes."

It's a FLSA wage-and-hour case. Some nurses wanted 12-hour, rather than 8-hour, shifts. But the FLSA says that if you work more than 8 hours, you get paid time-and-a-half. So while the employer was willing to make the change, it was willing to do so only if the nurses got paid the same. So what the employer did was to proportionally reduce the hourly pay of any nurse who chose a 12-hour shift -- in the plaintiff's case, from $22.83 an hour to $19.57 an hour -- so that the numbers worked out the same regardless of whether the nurse had a 12 or 8 hour shift.

To which plaintiff responded by filing a class action, alleging that this violates the FLSA and that she's entitled to time-and-a-half on her "normal" pay, not the reduced pay she got when she said she wanted 12 hour shifts.

On the one hand, there's authority that permitted employers (and states) to reduce hourly pay during the transition period before FLSA applied to 'em in order to keep their wages constant, so there's a loose analogy there. On the other hand, there's (1) something inherently fishy -- or at least suspect -- about reducing hourly pay to circumvent FLSA's time-and-a-half rule, and (2) lower court precedent that has occasionally found schemes precisely like this one to violate the FLSA.

Ultimately, all that Judge Randy Smith can say -- and, I think, all that anyone could properly say -- is that this seems fine because it just seems fine. In other words, that it passes the smell test, and that while we can't totally explain why that's the case, we can at least give you some hints, as well as simply tell you our judgment. For one thing, it was the nurses who wanted it. Now, we're not willing to create a doctrine that says that's necessarily dispositive, because that would lead to a whole lot of adverse consequences as well as be doctrinally inconsistent with the unwaivability of FLSA's time-and-a-half provisions. But when you put everything together, this whole scheme nonetheless just seems fine. Not only to Judge Smith, the author of the opinion, but to the diverse set of appellate judges who were randomly drawn for the particular panel, which in this case include Judges Canby and Rawlinson. Sometimes, that's about all you can say.

Admittedly, I do wonder where we draw the line in this area. For example, I have no doubt that I'd find it impermissible for an employer to say: "Next week, you can work either 8 hours or 12 hours -- your call. But if you choose the latter, you get paid $19.57 an hour rather than $22.83." Maybe other judges would disagree. But to me, that's simply too much like an employer saying "You can work an extra 3 hours on Friday if you want -- it's totally up to you -- but since that'd be 43 hours for the week, you'd have to agree to make $20.00 an hour (rather than your usual $30.00 an hour) since we have to time-and-a-half it."

Given that concession, what's the difference here? Essentially, Judge Smith is saying that you can't employ the particular scheme described above for a single week, but you can for a whole series of weeks; i.e., as your "normal" deal. Which, again, results in difficult line-drawing -- an exercise that's perhaps not optimal, but something that nonetheless the law requires. Line-drawing that's required by judges exercising very little more than common sense and with an eye towards statutory purposes, structures, and goals, with very little external constraints.

I'm less freaked out about that fact than some others. To me, that's the nature of the beast, at least sometimes. Not all the time, to be sure. And not in every area. But sometimes, that's what we not only do in the appellate courts, but what we should do. As well as what we should expect.

Beyond this larger point, I did want to make one other particularized critique of Judge Smith's view -- or, perhaps more accurately, of the FLSA (depending on whether or not you think that Judge Smith's done the right thing here, which I think most people would).

Judge Smith's holding is based upon the intuition that since the nurses prefer this regime, and since it was done for their benefit, the FLSA time-and-a-half provisions shouldn't preclude the hourly reductions. But isn't this predicate somewhat belied by the FLSA itself? When I think about it more deeply, it seems to me that the FLSA essentially says that, as a matter of law (or at least legal principles), when you work more than 8 hours in a day, it is more burdensome, and as a result the employer must pay you more. Moreover, by making this provision unwaiveable, we're essentially saying that we demand -- for public policy or other reasons -- that your private contracts reflect this social recognition.

But if that's the case, then it seems like the hourly reduction here should indeed be struck down. Since it pays the nurses on 12 hour shifts the same as the nurse on an 8 hour shift even though we've legislatively declared that public policy requires the former to be paid more. (Or perhaps because we want to deter the former by requiring employers to make enhanced payments so it transpires only when truly necessary and economically beneficial.) Part of me thus thinks that the reasoning behind Judge Smith's holding -- as well as his intuition (which, again, I share) -- is simply inconsistent with the FLSA itself. With the statutory declaration that, yes, 12 hour days should generally be avoided and/or deterred, even if employees agree to them.

This whole topic is perhaps especially timely to be because I read earlier this morning that Utah government employees -- who've been put on a 4-day (10-hour) workweek -- seem to like the new three-day-weekend structure, which also provides a fair piece of savings to the state (which was why Utah enacted it in the first place). Which got me thinking: Is that a superior regime in general? Three-day-weekends in exchange for slightly longer workdays. Should we -- or do we intuitively -- socially prefer such a system? And, if so, shouldn't the FLSA reflect (or at least not deter) such a preference?

What's true for four-day, 10-hour workweeks is probably similarly true for, as in this case, 12-hour "seven days on every two weeks" structures. And if nurses (and presumably other types of employees) really do -- as they seem to here -- prefer such a structure, doesn't that tell us a valuable piece of information about the FLSA generally? As well as either (1) what we should do about the statute, or (2) what we should do about holdings like this one from the Ninth.

Of course, maybe I'm especially interested in all of this merely 'cause it's a Thursday. Because a four-day workweek would mean that Thursdays are the new Fridays. With all the joy and love that entails.