United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
2d 739
61 USLW 2779, 125 Lab.Cas. P 35,817,
1 Wage & Hour Cas.2d (BNA) 649
Robert Reich, Secretary of Labor, brought this suit under the Fair Labor
Standards Act (FLSA), 29 U.S.C. 207 and 215(a)(2) (1988), against the
State of Wyoming Game and Fish Commission alleging that the state game
wardens were not properly paid overtime for hours worked in excess of forty
hours per week. The district court found that the Wyoming game wardens are
exempt from the Fair Labor Standards Act under the professional exemption.
Martin v. Wyoming, 770 F.Supp. 612, 619-20 (D.Wyo.1991).1 The Secretary
appeals, and we affirm.
I.
2
The Secretary sued to recover overtime pay for state game wardens.2 The
district court applied the "short test" for the professional exemption
promulgated by the Secretary of Labor, see 29 C.F.R. 541.3, and concluded
that the game wardens were exempt from the overtime provisions of the FLSA.
Martin, 770 F.Supp. at 619. The court found that the wardens' primary duty
consists of work in a field of science that requires knowledge and learning of an
advanced type and the consistent exercise of independent judgment and
discretion, and that this duty is predominantly intellectual and varied. Id. The
court determined further that the wardens do not spend more than twenty
percent of their time on "tasks which are not an essential part of and necessarily
incident to the professional tasks." Id.
The Secretary asserts that the state failed to carry its burden of establishing the
game wardens as professionals within the exemption because the state did not
meet the three prerequisites set forth in the Secretary's regulation. The
Secretary thus contends that the position of game warden does not have a
recognized status as a "profession", that the state required degree in wildlife
management is not necessary to perform the duties of a game warden, and that
the wardens do not consistently exercise the requisite discretion and
independent judgment in matters of consequence necessary to qualify for the
exemption.
II.
4
Exemptions to the FLSA are to be narrowly construed; the employer must show
the employees fit "plainly and unmistakenly within [the exemption's] terms."
Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d
393 (1960); Abshire v. County of Kern, 908 F.2d 483, 485 (9th Cir.1990). "The
question of how the [game wardens] spen[d] their time ... is a question of fact
[which we review under the clearly erroneous standard]. The question whether
their particular activities excluded them from the overtime benefits of the
FLSA is a question of law" which we review de novo. Icicle Seafoods, Inc. v.
Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986).
See also Drollinger v. Arizona, 962 F.2d 956, 958 (9th Cir.1992); Bratt v.
County of Los Angeles, 912 F.2d 1066, 1068 (9th Cir.1990). Upon a careful
review of the record, we conclude that the district court's findings of fact are
not clearly erroneous and that the Wyoming game wardens meet the
requirements of the FLSA professional exemption.
The record reveals the following undisputed facts. The state of Wyoming is
Both parties agree that the applicable test to determine whether the game
wardens satisfy the professional exemption is the so-called "short test". The
employee must first meet a minimum salary requirement of two hundred and
fifty dollars per week. 29 C.F.R. 541.3(e) (1992). The test then provides:
8
[An]
employee employed in a bona fide * * * professional capacity ... shall mean
any employee ...
9(a) Whose primary duty consists of the performance of:
10 Work requiring knowledge of an advanced type in a field of science or learning
(1)
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes or ...
11 which includes work requiring the consistent exercise of discretion and judgment
(e)
... shall be deemed to meet all of the requirements of this section.
12
13
The "primary duty" of an employee is work that constitutes the major part, or
more than fifty percent, of his or her time. Id. 541.103. Time alone however
is not the only test; the relative importance of the duties, the frequency with
which the employee exercises discretion, and the relative freedom from
supervision are all relevant considerations. Id. The employee's primary duty is
that which is of principal importance to the employer, rather than collateral
tasks which may take up more than fifty percent of his or her time. Dalheim v.
KDFW-TV, 918 F.2d 1220, 1227 (5th Cir.1990).
15
The Secretary argues that the state of Wyoming has failed to establish the
position of game warden as one with a recognized professional status. He relies
on the fact that there is a lack of uniformity among states as to the requirement
and duties of game wardens to distinguish them as professionals.3 However,
Wyoming may rightfully require more duties of its game wardens than other
states. The complex wildlife and geography of the state makes it logical that
they would so do. Moreover, the Secretary's argument puts the cart before the
horse. If the particular position satisfies the elements of the short test for the
professional exemption, we assume that the position has achieved a
professional status. If, on the other hand, it were necessary to have a recognized
professional status before the elements of the test could be met, the areas which
qualify for the exemption could not be expanding. See 29 C.F.R. 541.302(e)
(3).
16
18
19
Finally, the Secretary argues that the wardens do not consistently exercise the
requisite discretion and independent judgment to a degree required of
professionals. However, the record establishes that the wardens manage their
districts with little supervision other than yearly work schedules and goals.
They operate their own offices and serve as the sole representative of the state's
game and fish department within the area. The wardens are required to account
for their time on a monthly basis in DAR reports but can manage their time each
day without supervision. They are responsible for collecting and analyzing data
to create yearly population goals; they do so according to their own schedules,
accomplishing their tasks throughout the year. Drawing upon their knowledge
of wildlife and botany, they make their own estimations as to wildlife damage,
population and needs for relocation. We therefore conclude the district court
correctly determined that the game wardens exercise professional judgment.
20
The Honorable Wesley E. Brown, Senior Judge, United States District Court
for the District of Kansas, sitting by designation
Lynn Martin was Secretary of Labor at the time this action was brought. Robert
Reich has been substituted as Secretary pursuant to Fed.R.App.P. 43(c)
In the original suit, the Secretary also sought overtime pay for state biologists
and compensation to the spouses of game wardens for their services in
answering telephone calls and accepting visits to their homes which serve as
warden offices. The Department excluded the biologists based on a
determination that they satisfied the professional exemption. The claim on
behalf on the spouses was dropped on appeal
The Secretary relies on testimony that game wardens in Nebraska are "pretty
much law enforcement people ... their sole responsibility is enforcement of
Game and Fish regulations," while in Montana their duties are "strictly law
enforcement." Aplt.'s app., vol. II, at 269. Yet further testimony revealed that
both Idaho and Colorado game wardens are called District Wildlife Managers.
As in Wyoming, Idaho and Colorado game wardens have "very similar ... duties
to the biologists with the exception that they also do law enforcement." Id. at
270
The population goals are set by considering a number of factors including the
carrying capacity of the habitat for particular species, the health of the current
population, population dynamics (i.e. male to female, adult to young ratios, and
probable reproduction rates), desires of the sporting public, and tolerance of
landowners. The warden makes all the above assessments and recommends the
population goals