*

Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by

designation. 

 1Appellees' motion to strike portions of appellant's reply brief, previously carried with the

case, is denied. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-4470.

DADE COUNTY, FLORIDA, A Political Subdivision, Petitioners-Appellants,

Florida Sheriff's Association, Amicus Curiae,

v.

Jose ALVAREZ, Andrew Benjamin, Ted Bradley, Peter Caroddo, Paul Chahal, et al.,

Respondents-Appellees.

Oct. 16, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 94-636-CivAtkins), C. Clyde Atkins, Judge.

Before EDMONDSON, Circuit Judge, and KRAVITCH and WOOD*

, Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

Several current and former members of the Metro-Dade Police Department's Special

Response Team ("SRT") brought this action against Dade County (the "County") under the Fair

Labor Standards Act, 29 U.S.C. §§ 201, et seq., ("FLSA" or the "Act"), to recover overtime pay for

off-duty hours spent performing physical fitness training. After a jury verdict in their favor, the

district court entered judgment for the SRT officers. Because we conclude that physical training

conducted off duty by SRT officers in order to maintain physical fitness standards mandated by their

employer is not compensable work within the meaning of the FLSA, we reverse the judgment of the

district court.1

I.

The SRT is a specialized unit of the Metro-Dade Police Department that assists police

department personnel and other government agencies during potentially life-threatening situations.

Its officers are highly trained in the use of special weapons, equipment, and techniques designed to
 2

Plaintiffs' Ex. 21: 2-16 ("Metro-Dade Special Response Team, Standard Operating

Procedures, September, 1990."). 

 3The test included: running 1.5 miles in 12 minutes or less; completing 4 pull-ups while

wearing 25 pounds of weight; completing 50 sit-ups in two minutes or less; bench pressing

body weight plus 25 pounds; completing a hand grip test of a minimum of 125 pounds; and

doing 50 push-ups. Officers who failed the test were given thirty days of remedial training to

regain the required level of physical conditioning. In the summer of 1995, the SRT eliminated

the semi-annual fitness exam, and SRT team leaders now evaluate SRT officers' physical fitness

as part of a general monthly evaluation. 

 4

In June 1994, the County changed the rotation so that SRT officers now alternate between

three weeks on primary status and one week on warrant status. 

2

minimize the risk of harm to officers and civilians in situations involving barricaded subjects,

snipers, hostages, riots or other similar civil disturbances, and high-risk search and arrest warrants.

Because SRT call-outs often require extreme physical exertion, involve serious risk to human life,

and can last as long as twenty-four hours, "[g]ood physical fitness is recognized as a vital and

necessary quality for individuals assigned to SRT."2

For this reason, the County requires SRT officers to be in excellent physical condition.

Prospective SRT personnel must pass a physical fitness examination before enrolling in the SRT

training school. At the training school, SRT trainees undergo rigorous cardiovascular and strength

training. Once members of the SRT, officers are frequently monitored to ensure that they are

physically capable of performing SRT functions. Until recently, SRT supervisors tested the

cardiovascular condition and strength of incumbent officers twice a year, and officers who failed this

fitness exam were subject to reassignment outside the SRT.3

At the time this lawsuit was filed in April 1994, SRT officers rotated between two weeks on

primary status, during which they trained in SRT tactics and responded to calls for SRT assistance,

and two weeks on warrant status, in which they served felony arrest warrants on high-risk

individuals.4 When on primary status, SRT officers were allotted two hours of on-duty physical

fitness training each day, which they used to conduct long-distance runs, weight training, and
 5

Due to emergency call-outs, SRT officers often were not able to use all of their on-duty

physical training time. 

 6On occasion, SRT officers are pulled from the warrant cycle to perform primary status

duties. In such cases, the officers may have the opportunity to conduct physical training on duty. 

 7

R:12-180. 

 8R:12-201. 

3

calisthenics.5 Prior to 1990, SRT members also were permitted to train on duty twice a week for two

hours during the warrant cycle. Since 1990, however, the SRT has not allotted any on-duty physical

training time for officers on warrant status.6

Notwithstanding the restriction on on-duty training during the warrant cycle, SRT officers

were expected to maintain their physical conditioning at all times. SRT supervisors instructed

officers that they had to stay in shape regardless of whether they had adequate on-duty training time.

For example, one SRT officer testified: "I have been told by my supervisors that it would be

necessary and beneficial for me to work out in an off-duty status to maintain my physical fitness to

get the job done."7 An SRT Team Leader testified that he told his officers that "they had to continue

to do their physical training whether they had the time on duty, and if they didn't ... that they would

have to do it on their own time."8

 Other officers testified that off-duty training during the warrant

cycle was necessary to maintain the level of fitness required for the job. In addition, expert

witnesses testified that off-duty training was necessary during the warrant cycle because, without

it, officers would suffer detraining and lose the endurance and performance abilities necessary for

the SRT assignment.

Although SRT supervisors instructed officers to do whatever was necessary to maintain

adequate cardiovascular and strength levels for the SRT assignment, they never directed officers to

engage in any specific off-duty routine or training. The County required only that the officers

remained in adequate shape to perform SRT functions and pass the physical fitness exam. The

method, location, and amount of off-duty training were left to the officers' complete discretion. As
 9

R:12-45. 

 10R:12-181. 

 11Appellees also alleged, and the district court determined, that the County violated their

Collective Bargaining Agreement ("CBA") by failing to pay them for off-duty training and

violated the FLSA and the CBA by not compensating them for overtime hours worked in SRT

training schools and courses. 

 12The parties agreed to bifurcate the issues of liability and damages, and the district court

stayed the resolution of damages pending the outcome of this appeal. 

4

one officer testified: "We are not told that we have to do weight training or we have to do running

off duty."9 Another stated: "Off duty I train when I like, where I like, as long as I like, with in the

back of my mind the importance of getting my job done."10

II.

Appellees brought this action alleging, inter alia, that the County violated the FLSA by

refusing to compensate them for the hours they spent exercising off duty.11 At the conclusion of

trial, the district court submitted a special verdict to the jury, which made the following factual

determinations:

1. Plaintiffs' off-duty physical training or exercise is required or controlled by the County;

2. Plaintiffs' off-duty physical training or exercise is performed predominantly for the benefit of the

County;

3. Plaintiffs' off-duty physical training is an integral and indispensable part of their principal

activities as SRT officers; and

4. Dade County either knew, or showed reckless disregard, that its conduct violated the FLSA.

The district court then entered judgment for appellees, concluding that the SRT officers' off-duty

physical training is compensable work under the FLSA and that the County willfully violated the

Act. After denying the County's renewed motion for judgment as a matter of law made pursuant to

Fed.R.Civ.P. 50(b), the district court certified for immediate appeal the question of whether

appellees' off-duty exercise constitutes compensable work under the FLSA.12 We granted the

County's petition for leave to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
5

 We review the district court's denial of the County's renewed motion for judgment as a

matter of law de novo, applying the same legal standard as the district court. Shukla v. BP

Exploration & Oil, Inc., 115 F.3d 849, 851 (11th Cir.1997). The question of whether a particular

set of facts and circumstances constitutes work under the FLSA is a question of law. Birdwell v.

City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir.1992) As we stated in Birdwell, "[i]t is for the

court to determine if a set of facts gives rise to liability; it is for the jury to determine if those facts

exist." Id. at 808. The County is thus entitled to judgment as a matter of law if the facts, as

interpreted in the light most favorable to the SRT officers, afford no basis for finding that their

off-duty exercise constitutes work for the purposes of the FLSA.

III.

 Congress enacted the FLSA in 1938 to "guarantee either regular or overtime compensation

for all actual work or employment." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321

U.S. 590, 597, 64 S.Ct. 698, 703, 88 L.Ed. 949 (1944). The FLSA generally requires employers to

pay overtime for "employment in excess of [forty hours] at a rate not less than one and one-half

times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1). By not

providing a definition of "work" or "employment" in the FLSA, Congress left it to the courts to

determine which employment-related activities are compensable under the Act.

 Generally, courts have construed work to mean all activities "controlled or required by the

employer and pursued necessarily and primarily for the benefit of his employer and his business."

Muscoda, 321 U.S. at 598, 64 S.Ct. at 703 (holding that underground travel to iron ore mines was

compensable work). Whether an off-duty activity is conducted predominately for the benefit of the

employer depends on the degree to which an employee's freedom is undermined by the work-related

activity. "[I]t is clear that an employee's free time must be severely restricted for off-time to be

construed as work time for purposes of the FLSA." Birdwell, 970 F.2d at 810 (holding that on-call

waiting time was not compensable because "detectives' off-time was not so restricted that it was not

used predominately for their benefit"); see also Avery v. City of Talladega, Ala., 24 F.3d 1337, 1347
6

(11th Cir.1994) (holding that meal time was not compensable because officers "are free to spend

their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and

do not leave the jurisdiction").

 The Portal-to-Portal Act, 29 U.S.C. §§ 251, et seq., further provides that no employer shall

be liable under the FLSA for activities which are "preliminary to or postliminary to" the principal

activity or activities which the employee is employed to perform. 29 U.S.C. § 254(a)(2). Activities

performed before or after the regular work shift are thus compensable under the FLSA only if they

"are an integral and indispensable part of the principal activities for which covered workmen are

employed." Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 335, 100 L.Ed. 267 (1956)

(holding that showering and clothes-changing by workers using caustic and toxic materials were

compensable activities).

The Department of Labor has issued regulations to apply these general principles in the

specific context of employment-related training activities. Under these regulations, training

programs need not be counted as working time if: (1) attendance is outside the employee's regular

working hours; (2) the employee does not perform productive work during the program; (3)

attendance is voluntary; and (4) the program is not directly related to the employee's job. See 29

C.F.R. § 785.27; see also Price v. Tampa Elec. Co., 806 F.2d 1551 (11th Cir.) (per curiam )

(applying § 785.27), cert. denied, 483 U.S. 1006, 107 S.Ct. 3230, 97 L.Ed.2d 736 (1987).

Applying these regulations in another case involving physical fitness training performed by

a police department's SRT, the Department of Labor Wage and Hour Administrator (the

"Administrator") concluded that off-duty training does not qualify as a compensable training

activity. See Opinion Letter of the Wage and Hour Administrator, Maria Echaveste (June 1, 1994).

In that case, the SRT officers, like appellees, were tested semi-annually to ensure that they could

continue to meet the physical fitness standards required by their job. They also contended that a

certain amount of off-duty training was required to maintain these standards. Nonetheless, the

Administrator concluded that the off-duty training was not shown to be "required or directly related
7

to the SRT job. Such physical training is of a general nature that is beneficial to any individual,

whether or not he or she is an SRT officer." Id. at 2. The Administrator therefore ruled that the

off-duty physical training did not constitute working time within the meaning of § 785.27, and thus

was not compensable under the FLSA. Accord Opinion Letter of the Wage and Hour Administrator,

No. 1589 (September 12, 1985) ("Time voluntarily spent by police and fire fighters to maintain their

physical fitness is not considered working time, even though fitness is a job requirement.").

 The Administrator's application of the training regulations to the question of off-duty

exercise provides us with valuable guidance for judging the facts before us. "[T]he rulings,

interpretations and opinions of the Administrator under this Act, while not controlling upon courts

by reason of their authority, do constitute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140,

65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); see also Townsend v. Mercy Hosp. of Pittsburgh, 862 F.2d

1009, 1012 (3d Cir.1988) ("Although we are not bound by opinions of the Wage-Hour

Administrator, the Administrator's expertise acquired through day-to-day application of the statute

makes us hesitant to contravene such opinions unless the statute plainly requires otherwise.") (citing

Skidmore, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124).

 After carefully analyzing the factual record in this case in accordance with the regulations

issued by the Department of Labor, we conclude that the off-duty time spent by the SRT officers

maintaining physical fitness standards mandated by their job is not compensable work within the

meaning of the FLSA. First, there is no dispute here that the officers' off-duty fitness training was

conducted outside of their regular working hours. Second, it is clear that the officers did not perform

any productive work while conducting off-duty physical training. SRT officers are employed to

respond to potentially life-threatening situations, and no such work was undertaken while they were

exercising.

Third, the officers' off-duty training satisfies the voluntariness requirement of § 785.27. The

SRT supervisors required only that the officers pass the semi-annual fitness test. Appellees
8

presented no evidence that they were required to spend a specific amount of time training or to

perform certain exercise routines during their off-duty hours. Moreover, appellees did not suggest

that their employment would be adversely affected if they did not participate in any particular

off-duty activities, as long as they could pass the fitness tests. In conducting off-duty exercise, SRT

officers were free to train at any location, at any time, and for any duration. Given the freedom the

officers enjoyed in selecting their off-duty activities, we conclude that the actual off-duty physical

training performed by individual officers was voluntary within the meaning of the regulations.

Finally, we conclude that the officers' off-duty physical training was not directly related to

their SRT employment. In this case, the officers' physical fitness training was necessary to maintain

a level of physical conditioning that each SRT officer already had attained. The County, by

administering the semi-annual fitness exam, required only that the officers sustain the level of

physical fitness established during the SRT training school and further developed during the primary

cycle's on-duty cardiovascular and strength training activities. The County did not require the

officers to acquire or develop a skill unique to their employment as SRT officers. Although physical

fitness training allows SRT officers to perform their core employment function of responding to

emergency situations, such training also provides the individual officers with benefits that extend

beyond their employment position. The mere fact that fitness training must be undertaken off duty

in order to perform SRT functions is insufficient to establish that such activity is directly related to

the employee's job. Because the SRT officers' off-duty fitness training satisfies all of the four

criteria listed in the regulations, we conclude that the officers' off-duty training need not be counted

as working time.

The conclusion we reach by applying the Department of Labor's regulations is identical to

the result suggested to us by the more general principles that courts have used to define work under

the FLSA. In this case, SRT officers had complete freedom to define an off-duty physical training

regimen. The sole limitation placed upon the officers by the County was that they maintain the level

of physical conditioning required by the job of SRT officer. This single requirement did not
9

severely restrict the freedom of SRT officers, all of whom were active and physically fit when they

applied for a position with the team. Moreover, maintaining proper physical fitness benefits

individual officers in various ways that are separate from their SRT employment. Given the

flexibility afforded SRT officers in conducting off-duty fitness training and the personal value of

such exercise, we conclude that the off-duty exercise performed by individual officers—whether at

home, at a private gym, or at a county facility—cannot be considered to have been performed

predominately for the benefit of the County.

Similarly, the off-duty training of the SRT officers cannot be said to be an integral and

indispensable part of the principal activity for which these officers are employed. SRT officers are

not employed to conduct physical training or even to attain certain physical fitness standards.

Rather, SRT officers are employed to provide rescue services during potentially life-threatening

situations. The mere fact that a high level of physical conditioning is necessary to perform these

services does not transform off-duty exercise into work for purposes of the FLSA. We therefore

conclude, as a matter of law, that off-duty physical training mandated by the SRT's job requirements

does not constitute compensable work under the Act.

IV.

Accordingly, the judgment in favor of appellees is REVERSED, and this case is

REMANDED to the district court for entry of judgment in favor of appellant.

REVERSED and REMANDED.