Opinion
NOT FOR PUBLICATION
Submitted September 15, 2006 Portland, Oregon
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding, D.C. No. CV-00-06293-HO
Before: SILVERMAN and GOULD, Circuit Judges, and RHOADES, District Judge.This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Plaintiffs appeal from that portion of an order granting summary judgment in defendant§s favor on plaintiffs§ state law overtime claims.
The district court did not abuse its discretion in refusing to remand the state law claims, where at the time the motion to remand was filed this case had been in federal court approximately five years and had already been on appeal.
On the merits, in its August 4, 2005 Order the district court stated that it was applying the §same analysis to plaintiffs§ federal and state overtime claims.§ Because the panel in Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931 (9th Cir. 2004) (§ Brigham I §) explained that 29 C.F.R. § 785.23, not 29 C.F.R. § 785.22, is the relevant provision for determining the number of compensable hours plaintiffs worked during their duty shifts for purposes of federal overtime law, it logically follows that the district court concluded that O.A.R. 8390042(3), not O.A.R. 8390042(2), is the relevant provision for determining the number of compensable hours plaintiffs worked during their duty shifts under Oregon law. The district court did not err in reaching this conclusion.
In determining that 29 C.F.R. § 785.23 was the relevant provision with respect to plaintiffs§ federal overtime claims, the Brigham I panel concluded that the §defining characteristic of the present dispute§ is that plaintiffs are required to permanently reside on defendant§s premises. Brigham I, 357 F.3d at 940 n. 17. This conclusion applies equally to plaintiffs§ state law overtime claims. Following the reasoning of Brigham I, we find that O.A.R. 8390042(3), the more specific Oregon rule applicable to employees residing on their employer§s premises, is the applicable rule here.
O.A.R. 8390042(3) provides that §[t]o determine the exact hours worked, any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.§ Brigham I concluded that the parties had an agreement to treat §the otherwise formally uncompensated duty shift call time as equivalent to four hours§ actual work§ and that this agreement was reasonable. Brigham I, 357 F.3d at 942. In light of this agreement, there is no basis for finding that the district court erred in concluding that plaintiffs did not work more than 40 hours a week without being properly compensated.
Seeking to sidestep Brigham I, plaintiffs contend that neither O.R.S. 653.268 nor O.R.S. 652.020 allows an agreement as to how many on-duty hours are to be counted as hours actually worked. Although these statutes do not address such agreements, their failure to do so does not mean that such agreements are not allowed under Oregon law. In fact, O.A.R. 8390042(3), which has the force and effect of statutory law, see Bronson v. Moonen, 528 P.2d 82, 85 (Or. 1974), on its face recognizes and permits such agreements. See Baxter v. M.J.B. Investors, 876 P.2d 331, 344 (Or. App. 1994).
Nor is the district court§s ruling precluded under Oregon statutory law. Plaintiffs§ reliance on Perri v. Certified Languages Int§l, LLC, 66 P.3d 531 (Or. App. 2003) is unavailing because the plaintiff in that case did not reside on her employer§s premises, and the court did not consider the applicability of O.A.R. 8390042(3) to Perri§s claims. Moreover, Baxter does not preclude application of O.A.R. 8390042(3) to plaintiffs§ claims. Baxter and the regulation upon which it relies simply provide that when state and federal law establish different overtime standards, an employer must comply with the standard that is most advantageous to the employee. See Baxter, 876 P.2d at 347; O.A.R. 8390115(3). Baxter does not supply a standard for interpreting and applying the various provisions of O.A.R. 8390042 that are at issue here.
Finally, O.R.S. 653.261 does not require a different result. Unlike O.R.S. 653.268 and 652.020, O.A.R. 8390042(3) does not prescribe a rule pertaining to the maximum number of hours that can be worked absent payment of overtime. Instead, O.A.R. 8390042(3) simply provides a method for calculating an employee§s hours under specific circumstances. We do not read O.R.S. 653.261 as requiring courts to disregard rules such as O.A.R. 8390042(3), which supplement rather than supplant statutory overtime provisions when the employee is employed by a political subdivision of the state. AFFIRMED.