United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2127

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Daniel Joseph Milner, et al., *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

City of Hazelwood, *

* [PUBLISHED]

Defendant - Appellee. *

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Submitted: December 18, 1998

Filed: February 2, 1999

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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

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PER CURIAM.

The Fair Labor Standards Act (FLSA) generally requires employers to pay

employees at overtime rates for work in excess of forty hours per workweek. See 29

U.S.C. § 207(a)(1). However, the Act contains an exemption for public employers

who employ police officers and firefighters for established work periods of up to

twenty-eight days. See 29 U.S.C. § 207(k). Under the Secretary of Labor’s

implementing regulations, a work period is defined as “any established and regularly

recurring period of work.” 29 C.F.R. § 553.224. Public employers who establish

twenty-eight-day work periods under § 207(k) need not pay overtime rates to

employees who work 171 hours or less in a particular work period. See 29 C.F.R.
The HONORABLE LAWRENCE O. DAVIS, United States Magistrate Judge 1

for the Eastern District of Missouri, to whom the case was assigned by consent of the

parties. See 28 U.S.C. § 636(c)(1).

The district court also dismissed FLSA minimum wage and state law claims

2

that are not at issue on this appeal.

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§§ 553.201(a), 553.230(c). In this case, police officers employed by the City of

Hazelwood, Missouri, sued to recover unpaid overtime compensation allegedly owed

for the fifteen minutes they spend each day attending mandatory roll calls at police

headquarters.

The City moved for summary judgment, submitting a September 15, 1985, InterOffice Memorandum from the City Manager to his staff announcing the establishment

of a twenty-eight-day work schedule for police officers, and affidavits from the Chief

of Police and the City Manager averring that the City had thereafter scheduled police

department personnel on a regularly recurring twenty-eight-day basis. The district

court granted summary judgment in favor of the City, concluding this evidence

1

satisfies the work period requirements of 29 C.F.R. § 553.224, plaintiffs failed to refute

this evidence, and therefore plaintiffs’ overtime claims fail because the City is entitled

to the 29 U.S.C. § 207(k) exemption as a matter of law.2

On appeal, plaintiffs argue there is a genuine fact dispute because the City pays

them overtime on a daily basis, and because the September 1985 memorandum was not

made public and is ambiguous. We agree with the district court that a city does not

forfeit its § 207(k) exemption by paying overtime more generously than the Secretary’s

regulations would require, that the exemption need not be established by public

declaration, and that the City’s September 1985 memorandum unambiguously

established the exemption by declaring, “In compliance with FLSA . . . [e]ffective

September 15 . . . [t]he police department will be on a 28 day work schedule.”
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Plaintiffs further argue the FLSA entitles them to compensation at their regular

rates whenever unpaid time attending mandatory roll calls increased their total hours

in a twenty-eight-day work period to more than 160 hours but less than the 171

maximum hours permitted in the § 207(k) regulations. As the district court noted, this

claim was not pleaded and was untimely raised in response to the City’s motion for

summary judgment. In any event, it is without merit. See Monahan v. County of

Chesterfield, 95 F.3d 1263 (4 Cir. 1996). th

The judgment of the district court is affirmed. We deny the City’s motions to

strike appellants’ brief and portions of the joint appendix and to dismiss the appeal.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.