In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1834

RONALD L. HOWARD, SCOTT R. KINCAID,

DONALD M. LOFTUS, et al.,

Plaintiffs-Appellants,

v.

CITY OF SPRINGFIELD, ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 98 C 3124--Jeanne E. Scott, Judge.

ARGUED SEPTEMBER 28, 2000--DECIDED December 12, 2001

 Before MANION, ROVNER, and DIANE P. WOOD,

Circuit Judges.

 ROVNER, Circuit Judge. The plaintiffs in

this case are police officers with the

canine unit of the City of Springfield.

The officers are responsible for taking

care of the dogs assigned to them, but

the dogs are owned by the City. Although

the City provides kennels for the dogs,

the officers were encouraged to care for

them at home in order to maintain the

relationship with the dog that makes them

more effective, and each officer elected

to do so.

 The collective bargaining agreement

("CBA") between the City and the Police

Benevolent and Protective Association

provides compensation for the "kennel

time"--time spent by the officers caring

for the dogs. Pursuant to that agreement,

the officers are guaranteed the last hour

of paid duty time worked each day for

kennel time, and receive compensation for

one hour of kennel time at 1 times their

regular rate of pay on each regular day

off. The officers are not compensated for

kennel time on vacation, personal or sick

days, or on days in which they use

compensatory time or have in-service

training or training with their dogs.

Moreover, the officers do not receive a

kennel time allotment on days in which
they are called into duty or have their

regular shift extended.

 No one contends in this case that the

City has failed to comply with the

provisions of the CBA. The sole issue is

whether the City has violated the Fair

Labor Standards Act ("FLSA") in failing

to compensate the officers for kennel

time on the days not covered in the CBA.

Although the CBA does not require

compensation on those days, that does not

end our inquiry because "congressionally

granted FLSA rights take precedence over

conflicting provisions in a collectively

bargained compensation arrangement."

Barrentine v. Arkansas-Best Freight

System, Inc., 450 U.S. 728, 740-41

(1981). 

 Although acknowledging that it must

compensate its officers for kennel time

under the FLSA, the City contends that

the CBA provisions are adequate to

compensate the officers for all kennel

time. The City has consistently

maintained that the kennel time takes

less than an hour on many days, and that

by compensating for a full hour on

regular days and regular days off, the

excess compensation on those days covered

the time spent on the unpaid days, thus

averaging out to the required

compensation. The district court held

that there was a genuine dispute of

material fact on whether the compensation

covered all of the kennel time, and

therefore, for purposes of the summary

judgment, it assumed that the payments

were insufficient to cover the noncompensated days. The court nevertheless

granted summary judgment for the City,

holding that certain premium payments

made by the City could be used to offset

its overtime liability for the unpaid

kennel time and that, as a matter of law,

those premiums exceeded the amount of

overtime liability owed. The officers

appeal that determination on a number of

grounds. 

I

 First, the officers contend that the

court erred in holding that the two-year

statute of limitations applied to this

action. Under 29 U.S.C. sec. 255(a), the

statute of limitations for FLSA

violations is two years unless the

violation was willful, in which case the
limitations period is three years. The

officers have failed to submit any

evidence that the violation was willful

in this case, and therefore the court

properly held that the two-year period

applied. On appeal, the officers point to

cases such as Nichols v. City of Chicago,

789 F. Supp. 1438, 1445 (N.D. Ill. 1992),

establishing that kennel time is

compensable, and to the CBA which

provided compensation for kennel time on

regular duty days and regular days off.

According to the officers, the prior

cases and the CBA itself establish the

City’s knowledge that it was required to

compensate the officers for all kennel

time, including time spent on personal

days, sick days, and days in which the

officers were conducting in-service

training, using compensatory time, or

training with their dogs. The officers

contend that the City’s failure to do so

constituted at least reckless disregard

of its obligations under the CBA. 

 The inference that the officers would

have us draw from the CBA provision,

however, is not a reasonable one. Because

the CBA was negotiated, it would require

the corresponding inference that the

union was aware that all of the kennel

time was compensable, and that the union

nevertheless agreed to a provision that

would not provide that compensation which

the law requires. Although the inclusion

of compensation for kennel time in the

CBA may evidence knowledge that the FLSA

requires compensation for that time, it

does not support an inference that the

compensation provided was inadequate to

cover all of the days in which kennel

duties were performed. The district court

properly determined that there was no

genuine issue of fact regarding

willfulness, and that the two-year

limitations period applied.

 The officers also assert that the court

erred in holding that they were was not

entitled to injunctive relief. Section

217 of the FLSA provides that courts have

jurisdiction to enter injunctive relief

for violations of the FLSA. In sec. 211,

the FLSA sets forth the authority of the

Secretary of Labor to conduct

investigations and inspections for

violations of the FLSA, and further

states that "[e]xcept as provided in

section 212 of this title, the

Administrator shall bring all actions
under section 217 of this title to

restrain violations of this chapter."/1

Courts facing the issue have uniformly

held that according to that plain

language, the right to seek injunctive

relief rests exclusively with the

Secretary of Labor. See, e.g., United

Food & Commercial Workers Union, Local

1564 of New Mexico v. Albertson’s, Inc.,

207 F.3d 1193, 1197-98 (10th Cir. 2000);

Powell v. Florida, 132 F.3d 677, 678

(11th Cir. 1998) (collecting cases).

Plaintiffs have provided no basis for

departing from that line of cases, and we

hold consistent with those courts that

private parties may not seek injunctive

relief under the FLSA. 

II

 Turning to the merits of the claim, the

officers also contend that the court

erred in determining which premium

payments could be used to offset the

overtime liability and in applying those

premium credits. First, the officers

assert that payments for court time and

for regular days off should not

constitute premiums which could offset

overtime liability. 

 Pursuant to the FLSA, an employer may

credit some payments against any overtime

it owes. Specifically, 29 U.S.C. sec.

207(h)(2) provides that "[e]xtra

compensation paid as described in

paragraphs (5), (6), and (7) of

subsection (e) of this section shall be

creditable towards overtime compensation

payable pursuant to this section." Those

subsections include:

(5) extra compensation provided by a

premium rate paid for certain hours

worked by the employee in any day or

workweek because such hours are hours

worked in excess of eight in a day or in

excess of the maximum workweek applicable

to such employee under subsection (a) of

this section or in excess of the

employee’s normal working hours or

regular working hours, as the case may

be;

(6) extra compensation provided by a

premium rate paid for work by the

employee on Saturdays, Sundays, holidays,

or regular days of rest, or on the sixth

or seventh day of the workweek, where

such premium rate is not less than one
and one-half times the rate established

in good faith for like work performed in

nonovertime hours on other days; or 

(7) extra compensation provided by a

premium rate paid to the employee, in

pursuance of an applicable employee

contract or collective-bargaining

agreement, for work outside of the hours

established in good faith by the contract

or agreement as the basic, normal, or

regular workday (not exceeding eight

hours) or workweek (not exceeding the

maximum workweek applicable to such

employee under subsection (a) of this

section), where such premium rate is not

less than one and one-half times the rate

established in good faith by the contract

or agreement for like work performed

during such workday or workweek. 

29 U.S.C. sec. 207(e)(5)-(7). The City

asserts that those subsections encompass

premium payments made to the officers for

holidays, for court time, and for regular

days off. The officers object to the

inclusion of court time and the payments

made on regular days off. 

 We turn first to court payments. The CBA

provides that an officer appearing in

court shall receive not less than two

hours at the overtime rate, and that time

spent in court in excess of one-half hour

shall be paid at the overtime rate in

addition to the guaranteed minimum. The

City argues that payments for court time

fall within sec. 207(e)(7), and may

therefore be used to offset any overtime

liability. Section 207(e)(7) encompasses

premium pay required by the CBA for work

outside of the hours established in good

faith by the CBA as the basic, normal, or

regular workday, where the premium rate

is at least one and one-half times the

rate provided for like work during the

workday. There are a number of problems

with holding as a matter of law that the

payments for court time fall within this

provision. First, no party has pointed to

any language in the CBA establishing

certain hours as the basic, normal or

regular workday, and the statutory

provision explicitly limits itself to in

stances in which that workday is

established by contract or agreement.

Second, the premium pay for court time

occurs regardless of whether that court

time falls within the hours established

as part of the regular day. In fact, a
common sense view would suggest that

court time generally falls within a

regular workday. Rather than focus on the

language of the statute, the parties get

bogged down in the language of 29 C.F.R.

sec. 778.204 interpreting this provision.

We note that sec. 778.204 is an

interpretive bulletin from the Department

of Labor, as are all sections in Part

778. See 29 C.F.R. sec. 778.1. As an

interpretive regulation, it does not have

the force of binding law. Shaw v.

Prentice Hall Computer Publishing, Inc.,

151 F.3d 640, 642 (7th Cir. 1998). It is

therefore not entitled to deference,

although courts may rely on it as

persuasive evidence both of Congress’s

legislative and the Secretary’s

regulatory intent. Id.

 That interpretive regulation, in

relevant part, explains the statutory

language as follows:

(b) Premiums for hours outside

established working hours. To qualify as

an overtime premium under section 7(e)(7)

the premium must be paid because the work

was performed during hours "outside of

the hours established * * * as the basic

* * * workday or workweek" and not for

some other reason. Thus, if the basic

workday is established in good faith as

the hours from 8 a.m. to 5 p.m. a premium

of time and one-half paid for hours

between 5 p.m. and 8 a.m. would qualify

as an overtime premium. However, where

the contract does not provide for the

payment of a premium except for work

between midnight and 6 a.m. the premium

would not qualify under this section

since it is not a premium paid for work

outside the established workday but only

for certain special hours outside the

established workday, in most instances

because they are undesirable hours.

Similarly, where payments of premium

rates for work are made after 5 p.m. only

if the employee has not had a meal period

or rest period, they are not regarded as

overtime premiums; they are premiums paid

because of undesirable working

conditions.

29 C.F.R. sec. 778.204(b). The parties

devote much time to arguing whether court

time can be considered "undesirable." The

district court also took that approach,

declaring that "[b]y its very language,

sec. 778.204(b) addresses premiums paid
’only for certain special hours outside

the established workday, in most

instances because they are undesirable

hours . . . .’" [emphasis in dist. ct.

order] Order at 21. The court concluded

that "[c]ourt time payments are not tied

to ’certain special hours outside the

established workday,’" and "[t]hus, the

City may use court time premiums to

offset the Plaintiffs’ FLSA claims

pursuant to sec. 207(e)(7)." Id. That

approach, however, elevates the examples

of cases that fall outside the statute

into the rule for determining what cases

fall within it. The appropriate test here

is not whether the payments for court

time are made because the hours were

undesirable or because they were certain

special hours. The test is set forth in

the statute, and is whether the payments

are made because the hours are outside

the regular workday. The examples in the

interpretive regulation merely clarify

what type of payments made for hours

outside the regular workday may still not

qualify. The statute is clear that the

reason for the payment must be that the

hours fall outside the regular

established workday. Payments made for

another reason will not fall within sec.

207(e)(7). Therefore, payments made for

only the most undesirable hours such as

midnight to six, or for periods of time

in which a person must work without a

meal break, are payments that do not fall

within that provision. In those examples,

a factor other than the regular work

hours motivated the payment. That does

not mean, however, that those examples

are exhaustive. A payment can fall

outside sec. 207(e)(7) even if made for a

reason other than the undesirability of

the work; the test is whether the

payments were made because the work fell

outside the regular hours. Here, the

payments were made for time spent in

court. Whatever the motivation was for

that payment, there is no evidence here

that the payments were made because it

fell outside the regular workday

established by contract. As such, it does

not fall within sec. 207(e)(7) of the

statute. The City does not assert that

the court time payments fall within any

other provision, and therefore the

district court erred in holding that the

City could use the court time payments to

offset any overtime liability it might

incur.
 The officers also argue that payments

made for work performed on their regular

days off do not constitute creditable

premiums. Section 207(e)(6) provides that

premium payments made on regular days off

may be used as offsets "where such

premium rate is not less than one and

one-half times the rate established in

good faith for like work performed in

non-overtime hours on other days."

[emphasis added] The officers received 1 

times their regular pay on those days,

but inexplicably contend that such

compensation does not become a premium

rate until it exceeds 1 times the

employee’s regular rate. That is simply

irreconcilable with the plain language of

the statute, which excludes only payments

less than, not equal to, 1 times the

regular rate. Because this payment is

equal to 1 times the regular rate, it

falls within the statutory provision, and

may be used to offset the overtime

liability. See Reich v. Interstate Brands

Corp., 57 F.3d 574, 578 (7th Cir. 1995);

Nolan v. City of Chicago, 125 F. Supp. 2d

324, 331 (N.D. Ill. 2000).

 The officers fare better with their

argument that premium pay credits should

only offset overtime liabilities that

accrued in the same time period. As set

forth above, the statute provides in

relevant part that premium payments

described in sec.sec. 207(e)(5),(6), &

(7) "shall be creditable towards overtime

compensation payable pursuant to this

section." The City maintains that it can

use all premium payments made during the

years in issue to offset all overtime

liability, regardless of when the

payments were made and when the overtime

was owed. The officers seek a more narrow

construction of the statute that would

allow such overpayments made during a

given work period to be credited against

amounts due during that same work period.

The courts that have addressed this issue

have taken divergent views, with no

consensus at this point. Compare, e.g.,

Abbey v. City of Jackson, 883 F. Supp.

181 (E.D. Mich. 1995) with Roland

Electrical Co. v. Black, 163 F.2d 417

(4th Cir. 1947) and Nolan, 125 F. Supp.

2d at 331-33. The district court here

adopted the City’s position, holding that

all such premium payments could be used

to offset the total liability. Because

that amount exceeded the overtime owed,

the court granted summary judgment for
the City.

 The court’s decision was based in part

on its conclusion that if the City was

restricted to using premium pay offsets

only in the pay period in which they were

earned, the officers would receive an

undeserved windfall. We disagree. In

fact, if the City were able to use

premium payments in the manner

contemplated by the district court, the

City would be the recipient of the

windfall, and in fact would be placed in

a substantially better position than if

it had complied with the overtime

requirements of the FLSA all along. An

example may help illustrate this point.

If the City complied with the FLSA all

along, it would have paid the overtime

each pay period as it accrued. Subsequent

premiums payments could not be used to

reduce those overtime payments, because

they would have already have been

calculated and paid. For instance, a

premium payment made for the Thanksgiving

holiday would not be used by a conforming

employer to offset overtime paid back in

March. But that is precisely what the

City seeks to do here. It is contrary to

the language and the purpose of the

statute. 

 The credit provision must be read in the

context of the statute as a whole, which

is designed to protect workers from the

twin evils of excessive work hours and

substandard wages. Barrentine, 450 U.S.

at 739; Monahan v. County of

Chesterfield, Virg., 95 F.3d 1263, 1267

(4th Cir. 1996). Toward that end, the

statute requires the payment of time and

a half for overtime work. Courts have

long interpreted the FLSA as requiring

that those payments be timely made.

Brooklyn Savings Bank v. O’Neil, 324 U.S.

697, 703-07 (1945); Calderon v. Witvoet,

999 F.2d 1101, 1107 (7th Cir. 1993);

Rogers v. City of Troy, New York, 148

F.3d 52, 55 (2d Cir. 1998). Thus, the

statute is violated even if the employer

eventually pays the overtime amount that

was due. See id. In fact, that

requirement may not be waived, and "even

the workers’ enthusiastic assent to

deferred payment--a form of employer-held

savings account--is ineffectual."

Calderon, 999 F.2d at 1107. That

principle is also found at 29 C.F.R. sec.

778.106, which provides in relevant part:
The general rule is that overtime

compensation earned in a particular

workweek must be paid on the regular pay

day for the period in which such workweek

ends. When the correct amount of the

overtime compensation cannot be

determined until some time after the

regular pay period, however, the

requirements of the FLSA will be

satisfied if the employer pays the excess

overtime compensation as soon after the

regular pay period as is practicable.

Payment may not be delayed for a period

longer than is reasonably necessary for

the employer to compute and arrange for

payment of the amount due and in no event

may payment be delayed beyond the next

payday after such computation can be

made. 

Although that regulation is not entitled

to deference, Shaw, 151 F.3d at 642, it

is nonetheless persuasive as it is

consistent with the interpretation of the

FLSA that the courts have reached.

Therefore, under the statute, overtime

generally must be calculated and paid on

a pay period by pay period basis. The

City, however, advocates a method of pay

ment that would allow it to pay its

overtime obligations at a time far

removed from when that overtime amount

was due. That is inconsistent with the

statutory requirement that overtime

payments must be timely made. 

 The City’s argument would eviscerate the

protection intended by the overtime

payment requirement. Consider an extreme

example of the potential effects of this

interpretation. An employer could require

an employee to work long overtime hours

without the FLSA-mandated overtime

payments in one year in which the economy

was depressed, thus depriving the

employee of both the quality of life

sought by the FLSA and the ability to

supplement her income with a second job.

Then, in the next year in which economic

conditions are improved, the employer

could pay premiums to the employee, and

then use those premiums to offset the

overtime liability. Or an employer

engaged in the filing of tax returns

could require substantial overtime in the

tax season without incurring the costs of

that overtime at that time, and could

"pay" for that overtime with the double

or triple time holiday pay in its

contract for the rest of the year. In
essence, the employer could manipulate

the payments to suit its economic

concerns. That interpretation is

completely divorced from the purpose of

the FLSA. Accord Nolan, 125 F. Supp. 2d

at 331-33. The language of the statute

provides that those premium payments are

creditable "towards overtime compensation

payable pursuant to this section."

Because the statute contemplates that

overtime will be paid and calculated on a

pay period basis, it is consistent with

that language to calculate and apply

credits in the same manner. See also 29

C.F.R. sec. 778.202(c) (credits may be

given for daily compensation "against the

overtime compensation which is due under

the statute for hours in excess of 40 in

that workweek" [emphasis added]). 

 Other regulations similarly point to

that conclusion. For instance, 29 C.F.R.

sec. 778.104 provides that an employer

may not average the number of hours

worked over two weeks in order to avoid

paying overtime. Therefore, if an

employee works 20 hours one week and 60

the next, theemployer owes overtime in

the second week even though the two weeks

average to 40 hours each. Just as that

averaging would constitute an end-run

around the overtime requirement, the

City’s attempt to apply credits whenever

paid to all overtime liability attempts

to accomplish the same result.

Accordingly, the district court erred in

allowing the blanket application of all

premium payments to all overtime

liabilities, and in permitting the City

to credit court time payments against

overtime liability. We therefore remand

the case in order for the court to

recalculate the damages consistent with

this opinion. The parties will bear their

own costs of this appeal.

AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED

FOOTNOTE

/1 Section 212 is inapplicable here because it

applies to child labor provisions, and directs

the Administrator to bring all actions for injunctive relief "subject to the direction and

control of the Attorney General."
 MANION, Circuit Judge, concurring in part and

dissenting in part. Although I agree with most

of the court’s analysis and conclusions of law in

this case, I write separately to express my

disagreement with the court’s determination that

the City may use premium pay credits to offset

liabilities only when they occur during the same

pay period. On this issue, I respectfully dissent. 

 Neither the provisions of sec. 207(h)(2) of the

FLSA, nor its accompanying regulations, require

such a limitation. The reasoning articulated in

Abbey v. City of Jackson, 883 F. Supp. 181, 186-

87 (E.D. Mich. 1995),/1 makes more sense. There,

the district court, presented with this very

issue, held that:

Forcing an employer, who has given a premium rate

of pay for overtime, to forego the receipt of

credit and to pay additional overtime punishes

the employer without regard to whether it was

attempting to avoid its obligation to adequately

compensate employees for extra hours worked.

Plaintiffs have not pointed to any regulations,

statutes or current cases, which state that there

is a congressional will to penalize an employer

that inadvertently fails to follow FLSA by, in

effect, assessing civil money damages beyond

those enunciated in 29 U.S.C. sec. 216(b). Conversely, there is a clear congressional intent to

allow an employer to offset premium rates of pay

against overtime owed. 29 U.S.C. sec. 207(h). If

I were to follow plaintiffs’ reasoning, plaintiffs would receive a windfall and the purposes

and goals of the statute would not be served.

Therefore, defendant may offset the . . . premium

payments against overtime owed.

 This reasoning is especially persuasive in this

case where, as the majority acknowledges, the

officers have failed to submit any evidence that

the City willfully violated the FLSA. I would,

therefore, affirm the district court’s decision

allowing the City to use the premium payments

(i.e., those recognized by this court) to offset

any overtime compensation owed to the officers

under the FLSA, and remand the case back to the

court for a determination as to whether summary

judgment was still appropriate in light of this

decision.

FOOTNOTE

/1 See also Alexander v. United States, 32 F.3d

1571, 1577 (Fed. Cir. 1994) (premium pay is

creditable toward any overtime compensation due

under the FLSA); Kohlheim v. Glynn County, Georgia, 915 F.2d 1473, 1481 (11th Cir. 1990) (employer should be allowed to set off "all" previ-
ously paid overtime premiums against overtime

found to be due and owing under the FLSA).