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KRAUSE v. CHERRY HILL FIRE DIST. 13

June 30, 1997

ROBERT KRAUSE, et al., Plaintiffs,
v.
CHERRY HILL FIRE DISTRICT 13, Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Plaintiffs, all members or former members of fire companies located in Cherry Hill, New Jersey, bring this suit against Cherry Hill Fire District 13 ("District 13"), presently the exclusive provider of fire protection and fire safety services in the Township of Cherry Hill, New Jersey. Plaintiffs allege violations of the federal Fair Labor Standards Act ("FLSA"), *fn1" violations of certain New Jersey statutes governing public employment, *fn2" and common law breach of contract. Jurisdiction over plaintiffs' claims under the FLSA is based upon 28 U.S.C. § 1331. Plaintiffs invoke this court's Supplemental Jurisdiction over their state law causes of action. See 28 U.S.C. § 1367(a).

 Plaintiffs move for summary judgment pursuant to Fed. R. Civ. P. 56(a) on their claims under the FLSA and the New Jersey public employment statutes. Defendant cross-moves for summary judgment pursuant to Fed. R. Civ. P. 56(b) on all of plaintiffs' claims. These motions and cross-motions require this court to decide an issue of apparent first impression in this district, namely, whether the plaintiffs are "employees" within the meaning of the Fair Labor Standards Act, or whether these firefighters fit within the exception to the Act for "volunteers." *fn3"

 I. Facts4

 On July 12, 1993, pursuant to Ordinance number 93-27, the Township of Cherry Hill, New Jersey, created Cherry Hill Fire District 13, the defendant in this action, thereby consolidating, and eliminating, what had been six independent fire districts within the Township. On January 1, 1994, after a period of transition, District 13 became the sole entity responsible for fire protection and fire safety in the Township.

 District 13, like its predecessors, relies on a staff composed both of career firefighters and non-career firefighters. The career firefighters receive remuneration and benefits in accordance with a collective bargaining agreement between the Township and the International Association of Firefighters. The plaintiffs in this action, all non-career firefighters, are not now, and never have been covered by that collective bargaining agreement.

 District 13 staffs some firehouses with career firefighters 24 hours per day. Other firehouses are staffed by a combination of career and non-career firefighters. Career firefighters may work as much as a ten-hour shift (7 a.m. to 5 p.m.) at some firehouses. As of January 1, 1994, non-career firefighters staffed some firehouses on "duty-crew" shifts (5 p.m. to 11 p.m. weekdays, and 7 a.m. to 3 p.m., or 3 p.m. to 11 p.m., on weekends). Non-career firefighters also staffed some firehouses from 11 p.m. to 7 a.m., the so-called "sleep-in" shift.

 Between January 1, 1994, and August 7, 1995, District 13 compensated non-career firefighters at a rate of $ 8.00 per hour, and non-career officers at a rate of $ 9.00 per hour, for all "duty crew" shifts. Non-career firefighter and officers received $ 5.05 per hour for "sleep-in" shifts.

 After August 7, 1995, District 13 eliminated the weekday "duty crew" shifts for non-career firefighters. District 13 decided to staff these former "duty crew" shifts with a combination of career firefighters and, after August 7, 1995, firefighters in the newly created position of "Minimum Staffer," a part-time position paying $ 8.00 per hour. The "Minimum Staffers" were selected from among non-career firefighters who applied for the newly created position. None of the plaintiffs is a "Minimum Staffer." At the same time, defendant began compensating the remaining non-career firefighters, including the plaintiffs, at a rate of $ 20.00 per eight hour shift for the remaining "sleep-in" shifts.

 District 13 requires all career and non-career firefighters to attend monthly drills, to demonstrate successful completion of a Firefighter I course, at a minimum, and to maintain the Firefighter I certificate. In addition, all firefighters must be certified in Crash Injury Management, Infectious Diseases, Cardio-Pulmonary Resuscitation, Self-Contained Breathing Apparatus, and Right to Know.

 II. Standard for Summary Judgment

 On a motion for summary judgment, this court is required to view the underlying facts and all reasonable inferences drawn from those facts in the light most favorable to the party opposing the motion. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted); see also Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, 116 S. Ct. 64, 133 L. Ed. 2d 26 (1995); Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 200 (3d Cir. 1995); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

 Summary judgment should be granted only if a court concludes that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the movant has carried its initial burden, the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)) (emphasis added in Matsushita). The non-movant must present concrete evidence supporting each essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The question for this court, then, is whether the parties, in opposing the motion and cross-motion, have presented sufficient evidence to create a dispute regarding a genuine issue of material fact. Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir. 1995); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1381 (3d Cir. 1991). "Facts that could alter the outcome are 'material', and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted).

 III. Discussion

 A. Fair Labor Standards Act

 Plaintiffs contend that District 13 violated the minimum wage provisions of the FLSA when it adopted a $ 20.00 reimbursement for an eight-hour "sleep-in" shift. The FLSA provides that:

 
Every employer shall pay to each of his employees who in any workweek is . . . employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:
 
except as otherwise provided in this section, not less than $ 4.25 an hour during the period ending September 30, 1996, not less than $ 4.75 an hour during the year beginning on October 1, 1996, and not less than $ 5.15 an hour beginning September 1, 1997.

 29 U.S.C. § 206(a). In order for an enterprise to be "engaged in commerce," within the meaning of the FLSA, it is sufficient that the enterprise utilizes equipment or supplies which have traveled in interstate commerce. 29 U.S.C. § 203(s). The parties do not dispute that the Cherry Hill firefighters, unless otherwise excluded, are covered by the FLSA.

 However, the FLSA further provides, in the definition of "employee":

 
The term "employee" does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if--
 
(i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and
 
(ii) such services are not the same type of services which the individual is employed to perform for such public agency.

 29 U.S.C. § 203(e)(4)(A). Thus, the Cherry Hill firefighters would be exempt from the minimum wage provisions of the FLSA if they were "volunteers," rather than "employees," within the meaning of the Act. In addressing this distinction, this court must bear in mind that cases interpreting the FLSA have established the twin principles that the Act is a remedial statute which "must not be interpreted or applied in a narrow, grudging manner," Tennessee Coal, Iron & R.R. Co. v. Muscoda Local, 321 U.S. 590, 597, 88 L. Ed. 949, 64 S. Ct. 698 (1944), and that exemptions from FLSA coverage "are to be narrowly construed against the employers seeking to assert them," Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 4 L. Ed. 2d 393, 80 S. Ct. 453 (1960). See also Reich v. New York, 3 F.3d 581, 586 (2d Cir. 1994); Nichols v. Hurley, 921 F.2d 1101, 1103 (10th Cir. 1990).

 1. The "Economic Realities" Test

 To aid this court's analysis, the parties have extensively briefed the "economic realities" test, which they agree provides the traditional framework for determining when a worker is an employee within the meaning of the FLSA.

 The FLSA contains an expansive definition of the verb "to employ," providing that it "includes to suffer or permit to work." 29 U.S.C.A. § 203(g). See also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992). It is well-settled that this definition extends "the meaning of 'employee' to cover some individuals who would not qualify as such under a strict application of traditional agency law principles." Id.; see also Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947). Accordingly, courts interpreting the FLSA avoid common law classifications, choosing instead to apply a test of the "economic realities" of the relationship in question. Under this test, "the determination of the employment relationship does not depend on isolated factors but rather upon the 'circumstances of the whole activity.'" Martin v. Selker Bros., Inc., 949 F.2d 1286, 1293 (3d Cir. 1991) (quoting Rutherford Food, 331 U.S. at 730). *fn5"

 In order to determine whether an FLSA employment relationship exists using the "economic realities" test, courts in this Circuit consider the following six factors:

 
1) the degree of the alleged employer's right to control the manner in which the work is to be performed; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the ...

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