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TED L. BANKS v. CITY OF NORTH LITTLE ROCK

August 2, 1988

TED L. BANKS et al., Plaintiffs,
v.
CITY OF NORTH LITTLE ROCK, Defendant



The opinion of the court was delivered by: EISELE

 GARNETT THOMAS EISELE, CHIEF JUDGE.

 Pending before the Court is plaintiffs' motion for partial summary judgment. Defendant has responded. For the reasons set forth below, plaintiffs' motion will be granted.

 Plaintiffs, employed as captains with the North Little Rock, Arkansas fire department seek to recover overtime wages on behalf of themselves and other consenting employees similiarly situated. Plaintiffs allege that since April 15, 1986, defendant has willfully and unlawfully denied plaintiffs overtime premiums due under the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1). Defendant contends that pursuant to 29 U.S.C. § 207(k) and 29 U.S.C. § 213, said employees are exempt from the overtime provision of the Act.

 Section 207(k) provides:

 
No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if -
 
(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or
 
(2) in the case of such an employee to whom a work period of at least 7 but not less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days,
 
compensation at a rate not less than one and one-half times the regular rate at which he is employed.

 Section 213(a)(1) provides:

 
(1) any employee employed in a bona fide executive, administrative, or professional capacity . . . ."

 29 U.S.C. § 213(a)(1) (Supp. 1988).

 Plaintiffs move for partial summary judgment on the issues of their coverage under the Act and whether a violation has occurred. Two principles govern the Court's consideration of this action. First, the defendant bears the burden of proving the applicablity of any exemption. Knecht v. City of Redwood City, 683 F. Supp. 1307, 28 Wage & Hour Cas. (BNA) 504, 506 (citing Walling v. General Industries Company, 330 U.S. 545, 548-9, 91 L. Ed. 1088, 67 S. Ct. 883 (1947). Second, exemptions from the Act's coverage are to be "narrowly construed and applied [only] to those situations plainly and unmistakenly within [the Act's] terms and spirit." Knecht at ...


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