Auer v. Robbins

LOCATION: New York Board of Education Headquarters

DOCKET NO.: 95-897
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 519 US 452 (1997)
ARGUED: Dec 10, 1996
DECIDED: Feb 19, 1997

Irving L. Gornstein - Department of Justice, on behalf of the United States, as amicus curiae
John B. Renick - Argued the cause for the respondents
Michael T. Liebig - Argued the cause for the petitioners
Michael T. Leibig - on behalf of the Petitioners

Facts of the case

Francis Bernard Auer, a St. Louis police sergeant, other St. Louis police sergeants, and a lieutenant sued the respondent police commissioners, including David A. Robbins, for overtime pay under the Fair Labor Standards Act of 1938 (FLSA). The commissioners argued that Auer and the other petitioners were "bona fide executive, administrative, or professional" employees exempted from overtime pay requirements by the FLSA. Under the Secretary of Labor's regulations, that exemption applies to employees paid a specified minimum amount on a "salary basis," which requires that the "compensation...not [be] subject to reduction because of variations in the quality or quantity of the work performed." Auer claimed that that they did not meet this test because, under the terms of the Police Department Manual, their compensation could theoretically be reduced for a variety of disciplinary infractions related to the "quality or quantity" of their work. The District Court and the Court of Appeals disagreed with Auer's claim. Both courts held that the salary basis test was satisfied.


Must sergeants and lieutenants in the St. Louis Police Department be paid for working overtime pursuant to the Fair Labor Standards Act of 1938?

Media for Auer v. Robbins

Audio Transcription for Oral Argument - December 10, 1996 in Auer v. Robbins

William H. Rehnquist:

We'll hear argument next in Number 95-897, Francis Bernard Auer v. David Robbins.

Mr. Leibig, you may proceed whenever you're ready.

Michael T. Leibig:

Mr. Chief Justice, and may it please the Court:

This case involves the application of a rule in the Fair Labor Standards Act dealing with the salary basis test.

The rule is contained in 29 C.F.R. 541.5d and 541.118.

The rule basically provides that for persons to be considered white collar exempt... that is, professional exempt adminis... professionals, administrators, exempt administrators or exempt executives, their salary must be fixed and not contingent.

The specifics of the rule provide that they must receive a predetermined amount not subject to deduction because of the variations in quality or quantity of work.

Sandra Day O'Connor:

I've noticed with interest that the Federal Government does not follow the salary basis test for employees that are under the jurisdiction of the Office of Personnel Management.

It chooses not to go along with that at all.

Michael T. Leibig:

Well, it attempted to choose not to go along with that at all.

In 1975, I believe, when the Federal Government first came under the act, Congress provided that the Fair Labor Standard Act would be enforced by the Office of Personnel Management, but that the rule... but the definitions would still be defined and delinated by the Department of Labor, and when the Office of Personnel Management initially issued regulations for the Federal sector, they defined exempt status for salaried persons based on salary classifications.

But that definition was challenged in court in a specific case involving the Uniform Division of the Secret Service, Police Sergeants and Lieutenants, and the court of claims in that case specifically found that the enforcement by the Office of Personnel Management has to be undertaken consistently, consistent with the Department of Labor regulations, because it's the Department of Labor that defines and limits exemptions--

Sandra Day O'Connor:

And now are all Federal employees applying this salary basis test?

Michael T. Leibig:

--Well, first of all the court of claims found that to be the case.

They found it... and they also found it in some other cases involving the AFG case, which is cited in the briefs, and currently the position in the Department of Labor... I'm sorry.

The position in the Federal Government is that the Office of Personnel Management often treats people as exempt even though they're not salaried, but the Court of Claims and the United States District... the United States Court of Appeals for the District of Columbia have held that they should apply the salary test.

And when that has been a challenge... and the one place it's been challenged specifically is in the Uniform Division of the Secret Service and for employees that are exactly... do the exact work of the employees in this case, that is, sergeants and lieutenants in the Uniform Division, and the court ruled that the Department of Labor pay classification things have to be applied consistent with the salary basis.

Antonin Scalia:

But Justice O'Connor was not asking about court decisions, she was asking about the position being taken by the executive branch--

Michael T. Leibig:

I believe the--

Antonin Scalia:

--and in fact... and OPM takes a different--

Michael T. Leibig:


Antonin Scalia:

--view from Labor, doesn't it?

Michael T. Leibig:

The Office of Personnel Management takes the position that Federal employees can be exempted based on pay classification alone.

I do not think that, and I think that the courts have found that to be the case, and I don't think it's consistent with the statute.

For example, when Congress passed the statute applying the Fair Labor Standards Act to themselves, they did make... apply the salary basis test to themselves, and under the Professional Accountability Act, the regulations under that act specifically say that the salary basis test does apply to congressional employees.

And it specifically includes the regulation including, there was some discussion in the comments on the regulation of whether 541.5d, which is a special rule limiting part of it... I'll talk about in a minute... how that should be dealt with by the Congressional Accountability Office, and after considering the comments they included the regulation and specifically made reference to the applicability of the salary basis test to congressional employees.

So... and in addition to that, in the record there's a history of the Department of Labor's current consideration of the regulations and as part of that history the Director of OMB has had a series of reports and considerations with the Department of Labor about this problem and what to deal... how to deal with it in the future.

So the answer is, the Office of Personnel Management, just like a lot of employers in a lot of places, claim that they can exempt people based on classifications alone, but when the Federal Government and when the Congress have looked at it they've said they have to--

Sandra Day O'Connor:

Well, they also have a regulation saying the Federal Government can dismiss or suspend employees for 14 days or less.

Michael T. Leibig: