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[W] Balgowan v. State of N.J.

May 16, 1996

RICHARD M. BALGOWAN; THOMAS M. BATZ; THOMAS BETTEN; KARL L. BLUM; RAYMOND A. BURROUGHS; DENNIS CARLSON; JOHN I. CORBO; MICHAEL D. CRONIN; STEFFAN FRANKLIN; HERMAN J. KRIEG; JOSEPH J. LAGULLO; CHESTER J. LYSZCZEK; ALBERT M. MALATESTA; ARAM MARDEKIAN; IKE MARDEKIAN; WILLIAM L. MUNCZINSKI; ALAN S. NASS; THOMAS M. NORRIS; MALCOLM J. PALMER; JOHN C. POWERS; FRANCIS F. REALINI; CARL G. REBBECK; STANLEY F. RIPISH; EMIL H. ROESSLER; WAYNE A. RUMSEY; RICHARD F. SPOERL; LAWRENCE A. SROKA; JOHN W. STULTS; ROBERT L. SWAIN; DENNIS R. SYMONS; JOHN B. TAYLOR, JR.; CHARLES A. TERRITO, JR.; PETER W. TOMORY; ALFRED T. WOODROW; DANIEL YACOVINO; CHARLES W. YOUNG; RICHARD ZOLNOWSKI,

APPELLANTS,

v.

STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION,



On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 93-cv-02209)

Before the salary test was amended, it deprived public entities of the professional exemption created by Congress, and conflicted with Congress' intent for public employers to claim the professional exemption. See Service Employees, 60 F.3d at 1353-54. We hold that the application of the 1954 salary test to the public sector is contrary to the FLSA and therefore is invalid. *fn3 Through September 6, 1991, public sector employees need only satisfy the duties test to qualify for the professional exemption under the FLSA.

COWEN, Circuit Judge.

OPINION WITHDRAWN

RICHARD M. BALGOWAN; THOMAS M. BATZ; THOMAS BETTEN; KARL L. BLUM; RAYMOND A. BURROUGHS; DENNIS CARLSON; JOHN I. CORBO; MICHAEL D. CRONIN; STEFFAN FRANKLIN; HERMAN J. KRIEG; JOSEPH J. LAGULLO; CHESTER J. LYSZCZEK; ALBERT M. MALATESTA; ARAM MARDEKIAN; IKE MARDEKIAN; WILLIAM L. MUNCZINSKI; ALAN S. NASS; THOMAS M. NORRIS; MALCOLM J. PALMER; JOHN C. POWERS; FRANCIS F. REALINI; CARL G. REBBECK; STANLEY F. RIPISH; EMIL H. ROESSLER; WAYNE A. RUMSEY; RICHARD F. SPOERL; LAWRENCE A. SROKA; JOHN W. STULTS; ROBERT L. SWAIN; DENNIS R. SYMONS; JOHN B. TAYLOR, JR.; CHARLES A. TERRITO, JR.; PETER W. TOMORY; ALFRED T. WOODROW; DANIEL YACOVINO; CHARLES W. YOUNG; RICHARD ZOLNOWSKI,

APPELLANTS,

v.

STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION,

On Appeal from the United States District Court for the District of New Jersey

(D.C. No. 93-cv-02209)

Before the salary test was amended, it deprived public entities of the professional exemption created by Congress, and conflicted with Congress' intent for public employers to claim the professional exemption. See Service Employees, 60 F.3d at 1353-54. We hold that the application of the 1954 salary test to the public sector is contrary to the FLSA and therefore is invalid. *fn3 Through September 6, 1991, public sector employees need only satisfy the duties test to qualify for the professional exemption under the FLSA.

Steven P. Weissman (argued) Weissman & Mintz One Executive Drive Suite 200 Somerset, New Jersey 08873 COUNSEL FOR APPELLANTS

Steven Sutkin (argued) Office of New Jersey Attorney General Division of Law/Transportation Richard J. Hughes Justice Complex Trenton, New Jersey 08608 COUNSEL FOR APPELLEE

COWEN, Circuit Judge.

Argued January 22, 1996

(Filed: May 16, l996)

OPINION

Plaintiff-appellants, thirty-six project engineers and one supervising engineer, filed this lawsuit against the New Jersey Department of Transportation ("DOT"), in the United States District Court for the District of New Jersey, seeking overtime compensation under the Fair Labor Standards Act of 1938, ("FLSA"), 29 U.S.C. Section(s) 201 et seq. They claim that, in light of the DOT's disciplinary policy, they fail to satisfy the "salary test" promulgated by the Department of Labor. The "salary test" determines, in part, whether an employee qualifies for the professional exemption under the FLSA. Granting the DOT's motion for summary judgment, the district court invalidated the "salary test" as applied to the public employees, holding that it was not rationally related to the objectives of the FLSA. As an alternative holding, the district court found that the engineers satisfied the "salary test" because the DOT had never actually deducted pay under its disciplinary policy. Because we find that the salary test is valid as amended and that the engineers fail to satisfy it, however, we will affirm in part, reverse in part, and remand the case with instructions to enter summary judgment in favor of the appellant engineers.

I.

The following facts pertaining to the terms of employment of the engineers are not disputed. The DOT does not pay its engineers time and a half overtime rates. Rather, DOT engineers are compensated for all work performed in excess of 40 hour weeks in accordance with state regulations codified in Title 4A, Chapter 3, Subchapter 5 of the New Jersey Administrative Code, N.J.A.C. 4A:3-5.1 et seq. Under these regulations, DOT engineers are paid either a "special project rate" used for projects approved by the Department of Personnel; compensatory time paid on an hourly basis; or emergency rates in emergency situations.

DOT engineers may be disciplined, similar to other DOT employees, according to the DOT's disciplinary policy entitled the "Supervisory Guidelines for Discipline." The disciplinary policy allows for suspension without pay for such infractions as tardiness, insubordination or neglect of duty. No engineer has ever suffered a reduction in pay under the disciplinary policy. DOT engineers may also be docked pay for taking time ...


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