UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHELBY M. ANDERSON; DEVON C.

BAIRD; FRANKIE LEE BOAN, JR.;

PATRICK G. BOONE; JERRY WOODROW

BROWN; MARVIN L. BROWN; ROBERT L.

BROWN; FERRIS EDWARD CATOE, III;

KIRK E. CORLEY; DANIEL S. DABNEY;

DAVID WILLIAM DAVIS; J. DOWEY, JR.;

CHERRIE M. GRIGGS; GLENN HOPPLE;

RANDALL CRAIG HUDSON; VIRGINIA H.

HUDSON; THOMAS JEFF JACKSON, JR.;

STEVEN KNAFELC; GLENN MARTIN;

FRANK G. MCLEOD, JR.; JERE T. MILES;

JAMES L. MILLER; TODD HOWELL

MOZINGO; MARSHALL M. MINICH;

ANDREW S. MORRIS; WARREN MOSELEY;

WILLIAM G. MOSELEY; JESSE LAMAR

POPE; VIRGIL L. REAMES; SYLVESTA

No. 97-2601

ROBINSON; DAVID THOMLEY; JAMES E.

THOMLEY; ERIC N. TISDALE; CHARLES

WHITE; HAMPTON WRIGHT; LYNDON

ALEXANDER; DONALD FARROW; KELLY

JOHNSON; JOHN C. TOLLISON; JAMES G.

ROBINSON; H. RAY RUTLEDGE,

Plaintiffs-Appellants,

STEPHEN D. VINCENT,

Plaintiff,

v.

COUNTY OF KERSHAW; JERRY L.

HORTON, former Sheriff of Kershaw

County; STEVE MCCASKILL, as current

Sheriff of Kershaw County,

Defendants-Appellees.
Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CA-95-4019-10-3)

Argued: October 29, 1998

Decided: February 8, 1999

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge,

and THORNBURG, United States District Judge for the

Western District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Kurt Kendree, LAW OFFICES OF WILLIAM

STUART DUNCAN, P.A., Georgetown, South Carolina, for Appellants. Stephen Terry Savitz, GIGNILLIAT, SAVITZ & BETTIS,

Columbia, South Carolina, for Appellees. ON BRIEF: William Stuart Duncan, Joe M. Crosby, LAW OFFICES OF WILLIAM STUART

DUNCAN, P.A., Georgetown, South Carolina, for Appellants. Linda

Pearce Edwards, GIGNILLIAT, SAVITZ & BETTIS, Columbia,

South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Forty-two current and former deputy sheriffs of Kershaw County,

South Carolina, brought suit challenging the legality of their half-time

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overtime premiums paid pursuant to a "fluctuating workweek" schedule, 29 C.F.R. § 778.114. Specifically, plaintiffs alleged that they

lacked the required "clear mutual understanding" that their salary was

compensation for all hours worked. Because we find that such an

understanding sprang from a decade of consistent practice, we affirm

the district court's grant of summary judgment for the defendants.

I.

The deputies were paid by the County pursuant to a compensation

plan implemented in 1986 to meet the demands of the Fair Labor

Standards Act (FLSA), 29 U.S.C. § 207, in the wake of the Supreme

Court's decision in Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985). The County's plan provided for a

"fluctuating workweek" salary plan whereby the deputies were paid

a fixed salary for all hours worked. The plan also provided for the

payment of half-time overtime when the officers worked more than

171 hours in a 28 day period. See 29 C.F.R.§ 553.230(b) (permitting

a 28 day work period for law enforcement officers). The deputies

received compensation at one-half their hourly rate for each hour

worked in excess of 171.*

The deputies were consistently paid under the terms of the fluctuating workweek pay plan since its adoption. They were told their salary

and received it in full whether they worked more or less than 171

hours. The deputies also knew they received compensation for over-

_________________________________________________________________

*Under the fluctuating workweek plan, the hourly rate will vary from

week to week depending upon the actual number of hours worked. For

example, assume that a deputy's salary is $1810 per 28 day period and

the deputy receives overtime premiums after 171 hours. If the employee

works 181 hours, he will receive half-time premiums for 10 hours of

overtime. To calculate the hourly rate, the salary is divided by the number of hours actually worked. Here, $1810 is divided by 181 hours, yielding an hourly rate of $10. The overtime premium is thus one-half of $10,

or $5 per hour of overtime. If, however, the deputy works 191 hours, the

premium is reduced. The hourly rate is now $1810 divided by 191, or

about $9.48. The half-time premium is thus $4.74. The overtime premium is inversely proportional to the number of overtime hours worked.

See generally 29 C.F.R. § 778.114.

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time. No written explanation of the method of calculating overtime

payments, however, was provided to the deputy sheriffs until December 8, 1995. Nonetheless, the deputies were aware of the premiums,

and some frequently complained about the amount of the premiums,

especially the fact that the premium decreased as overtime increased.

The deputies filed suit on December 22, 1995, against the County,

the former Sheriff, Jerry L. Horton, and the current Sheriff, Steve

McCaskill. The deputies challenged the legality of the plan under the

FLSA. Specifically, they asserted that they did not have the requisite

"clear mutual understanding" that they were to receive a fixed weekly

salary regardless of the number of hours worked. 29 C.F.R.

§ 778.114(a). Without such an understanding, the County was

required to pay overtime premiums of one and one-half their hourly

rate for all overtime hours worked. See FLSA, 29 U.S.C. § 207. The

deputies sought monetary and injunctive relief. After discovery, the

parties filed cross-motions for summary judgment. The district court

found no factual basis in the record for the deputies' allegations.

Forty-one of the deputy sheriffs appeal.

II.

Under the FLSA, an employer may use a fluctuating workweek pay

plan so that it can "place workers on a variable schedule tailored to

the nature of their work without incurring prohibitive overtime costs

for weeks in which the hours are the longest." Griffin v. Wake County,

142 F.3d 712, 714 (4th Cir. 1998). The prerequisites to using this

compensation method are set forth in 29 C.F.R. § 778.114. Among

them, the employer and employee must have "a clear mutual understanding . . . that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their

number, rather than for working 40 hours or some other fixed weekly

work period." 29 C.F.R. § 778.114(a). In other words, "the employer

and the employee must have a clear, mutual understanding that the

employer will pay the employee the fixed weekly salary regardless of

the hours worked." Flood v. New Hanover County, 125 F.3d 249, 252

(4th Cir. 1997).

The deputies assert that they believed that their fixed salary compensated them for all regularly scheduled hours and not, as the regula-

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tion requires, for all hours worked. They note that they never received

a written explanation of their pay plan. They also argue that Kershaw

County's evidence -- that the deputy sheriffs consistently received

paychecks using the half-time method of overtime compensation --

is insufficient. Thus, the deputies argue that section 778.114(a)'s

"clear mutual understanding" requirement was not met and the

County was not entitled to compensate its employees under the fluctuating workweek plan.

We disagree. In Griffin v. Wake County, this court held that an

employer could meet the burden of establishing a clear mutual understanding in several ways. Although in that case the employer distributed a written memorandum explaining the pay plan, we noted that

the county's consistent administration of the plan provided an additional way to demonstrate the existence of such an understanding.

[W]e [cannot] overlook the fact that[the] County implemented the fluctuating workweek plan nearly eight years

ago. In these eight years the [plaintiffs] have not identified

a single instance of the County paying [a plaintiff] less than

his full salary for a week in which he performed any regular

work. Thus, since 1990, the [plaintiffs] have received a regular lesson -- in the form of their paychecks-- about how

the fluctuating workweek plan operates. This circuit noted

in Monahan v. County of Chesterfield that"an employer can

also demonstrate the existence of this clear mutual understanding from employment policies, practices, and procedures." 95 F.3d 1263, 1275 n.12 (4th Cir. 1996). The

[plaintiffs] lived with the fluctuating workweek plan for

nearly six years before filing this lawsuit in 1996. Thus, "it

is clear from [the plaintiffs'] actions that[they] understood

the payment plan in spite of after-the-fact verbal contentions

otherwise." Id. at 1281 n.21.

Griffin, 142 F.3d at 716-17.

The circumstances relied upon by the court in Griffin are present

here in stronger form. The deputy sheriffs knew their annual salary.

For an entire decade before filing suit, the County consistently paid

them their full salary for each work period, whether their actual hours

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worked fell above or below 171 hours. Additionally, the deputies

accepted a check every two weeks for the same non-fluctuating base

amount. They also received half-time overtime for all hours worked

over 171. Thus, like the employees in Griffin , they "have received a

regular lesson -- in the form of their paychecks-- about how the

fluctuating workweek plan operates." Id.

This lesson appears to have been learned. In their depositions, the

deputies frequently admitted knowing the details of their compensation package, including their annual salary and that their overtime

premiums decreased with the number of hours worked. Because a

decade of invariable practice gave rise to a clear mutual understanding that the deputies would receive their full salary without regard to

the hours actually worked, the judgment of the district court is hereby

AFFIRMED.

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