Argued: June 27, 2012
Appeal from a grant of summary judgment in the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge)
holding a pharmacist exempt from the FLSA time-and-a-half overtime pay
SETH R. LESSER (Fran Rudich, on the brief), Klafter, Olsen & Lesser LLP, Rye Brook, New York, for Plaintiff-Appellant.
JAMES J. SWARTZ, JR. (Felice B. Ekelman, Jackson Lewis LLP, New York, New York, on the brief), Ashe Rafuse & Hill LLP, Atlanta, Georgia, for Defendant-Appellee.
Before: WINTER, STRAUB, and CHIN, Circuit Judges.
WINTER, Circuit Judge:
Salah Anani appeals from Judge Spatt's grant of summary judgment dismissing Anani's complaint against CVS RX Services, Inc. ("CVS"). The district court held that appellant was exempt from the Federal Fair Labor Standards Act's ("FLSA") time-and-a-half overtime requirement because of an exemption for highly-paid employees. We affirm.
Appellant was employed by CVS as a pharmacist from 2003 until his resignation in July, 2009. Appellant has stipulated to a two-year statute of limitations, limiting his claim to the period from December 18, 2007 to July 20, 2009. See Anani v. CVS RX Servs., Inc., 788 F.Supp.2d 55, 58 (E.D.N.Y. 2011). During the relevant period, appellant's base salary was based on a forty-four hour work week (paid bi-weekly). That base weekly salary exceeded $1250 at all pertinent times. As explained infra, his base salary was guaranteed, and CVS classified him as a salaried employee exempt from the time-and-a-half overtime requirement of the FLSA. See 29 U.S.C. § 207(a)(1).
Appellant also received additional compensation because he invariably, or almost so, worked hours in addition to the base forty-four hours each week. Appellant's additional hours worked usually ranged from 16 to 36 hours per week, increasing his total compensation in each relevant year to over $100, 000. Appellant worked these extra shifts voluntarily. Compensation for the extra work -- in excess of forty-four hours -- was paid according to an hourly "Compensation Rate" determined by dividing appellant's weekly guaranteed salary by forty-four, multiplying the number of hours worked over forty-four by the resultant amount and then adding "Premium Pay" of six dollars per hour.
There are no material facts in dispute, and our review of a grant of summary judgement is, of course, de novo. Lawrence v. Cohn, 325 F.3d 141, 147 (2d Cir. 2003).
FLSA Section 207(a)(1) provides that employees who work more than forty hours in a given week must receive time-and-a-half compensation for excess hours except as "otherwise provided." 29 U.S.C. § 207(a)(1). FLSA Section 213(a)(1) provides an exemption from this requirement for "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). To qualify for this exemption an employee's work must satisfy both a duties requirement and a salary requirement. 29 C.F.R. §§ 541.2, 541.300. Appellant concedes that the duties requirement, quoted above and amplified by regulations found in Subparts B-F of 29 C.F.R. Part 541, is met.
The disposition of this appeal, therefore, turns on the salary requirement as defined in Subpart G of Title 29, Subtitle B, of C.F.R. §§ 541.600 through 541.606. C.F.R. § 541.600 provides that to qualify for the exemption, an employee "must be compensated on a salary basis at a rate of not less than $455 per week." 29 C.F.R. § 541.600(a). The term ...