24 Wage Replacement and Wage Protection 24 Wage Replacement and Wage Protection
Unemployment insurance gives workers, who have lost their jobs through no fault of their own, monetary payments for a given period of time or until they find a new job. This policy is designed to sustain consumer spending during periods of recession--and to prevent financial distress during periods of joblessness.
In the United States, unemployment insurance operates through a combination of federal and state statutes. The program was established by the federal Social Security Act in 1935. Each state operates its own unemployment insurance program, which must be approved by the Secretary of Labor, based on federal standards. A combination of federal and state law determine which employees are eligible for compensation, the amount they receive, and the period of time benefits are paid.
State and federal taxes support this system of compensation. States base employer contributions on the amount of wages the employer has paid, past contributions to the unemployment fund, and the amount that the discharged employees have already been compensated.
We will consider two of the main dimensions of unemployment insurance regimes: the requirement to make a good-faith search for work and the definition of "good cause" for quitting a job.
We will also consider the overtime protections available under the Fair Labor Standards Act. The law was originally intended to address exploitative practices like child labor—and to ensure that every covered employee minimum wage and overtime. See 29 U.S.C. §206(a)-(b), 207(a)(1) (2018). However, the FLSA’s overtime provisions do not limit the number of hours an employee may be required to work and thus the statute does not protect from discharge workers who refuse to work overtime.
The FLSA and implementing DOL regulations include a variety of exemptions to both the minimum wage requirements and the overtime provisions. Perhaps the best-known FLSA exemptions are the “white-collar” exemptions, which cover “any employee employed in a bona fide executive, administrative, or professional capacity.” See 29 U.S.C. §213(a)(1). Application of these exemptions can be incredibly fact-intensive and complex. We will focus less on these exemptions than on the application of the FLSA to employees who are "on call."
24.1 Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 200 (1974) 24.1 Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 200 (1974)
William J. Knox, Appellant,
v.
Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Appellee.
Commonwealth Court of Pennsylvania.
Submitted on briefs December 6, 1973 to Judges CRUMLISH, JR., KRAMER and BLATT, sitting as a panel of three.
Richard S. Hoffman, for appellant.
201*201 Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
OPINION BY JUDGE KRAMER, March 7, 1974:
This is an appeal by William J. Knox, Jr. (Knox) from an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits to Knox.
Knox had been employed by H.K. Porter Company (Porter) for 17 years when he was laid off due to the permanent closing of the plant in which he worked. Knox applied for and received unemployment compensation for approximately two and one-half months. His unemployment compensation was terminated after the following incident. Knox was given a job referral by the local office of the Bureau of Employment Security. The job referral was for a position similar to his former employment with Porter and paid approximately the same wage. Knox accepted the referral and reported to the personnel office of the prospective employer for an interview. During the interview, Knox mentioned that he might be recalled by the successor to Porter's plant and that he would return to work there if recalled. As a result, he was not hired.
Section 402(a) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(a), is the applicable controlling statutory provision. It reads: "An employe shall be ineligible for compensation for any week — (a) in which his unemployment is due to failure, without good cause, either to apply for suitable work at such time and in such manner as the department may prescribe, or to accept suitable work when offered to him by the employment office or by any employer, irrespective of whether or not such work is in `employment' as defined in this act: Provided, That such employer notifies the employment office of such 202*202 offer within three (3) days after the making thereof." (Emphasis added.) The words "good cause" found in Section 402(a) have been interpreted to be synonymous with "good faith." See Brilhart Unemployment Compensation Case, 159 Pa. Superior Ct. 567, 49 A.2d 260 (1946). In his brief, Knox concedes that conduct which discourages a prospective employer from employing a claimant evidences a lack of good faith and constitutes proper grounds for denying benefits under Section 402(a). He urges, however, that such conduct must indicate that the claimant would be irresponsible, lackadaisical or unreliable, whereas he merely was being honest. While we sympathize with Knox, we cannot agree.
In Paisley v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 427, 428, 315 A. 2d 908, 908-909 (1974), we stated: "The law on this matter is clear that a claimant cannot attach such conditions to his acceptance of work as to render himself unavailable for suitable work. `A claimant is required at all times to be ready, able, and willing to accept suitable employment, temporary or full time. . . . But one may render himself unavailable for work by conditions and limitations as to employment. Willingness to be employed conditionally does not necessarily meet the test of availability. The determination of availability is largely a question of fact for the Board.' Pinto Unemployment Compensation Case, 168 Pa. Superior Ct. 540, 542, 79 A.2d 802, 803 (1951). The statement by a claimant to a prospective employer that he expects to be recalled to his former job at an indefinite time in the future and that he intends to return when recalled limits the claimant's availability for work so as to render him ineligible for benefits. Maribello Unemployment Compensation Case, 200 Pa. Superior Ct. 330, 188 A.2d 861 (1963); Gavlick Unemployment Compensation 203*203 Case, 197 Pa. Superior Ct. 621, 179 A. 2d 926 (1962). . . ."
Knox's desire to protect his 17 years of seniority is understandable, but, nonetheless, he presented the prospective employer with an unacceptable condition of employment.
Our scope of review in unemployment cases is limited, absent fraud, to questions of law and whether or not the findings of the Board are supported by the evidence. The Board's findings in this case are supported by the evidence and we find no error of law. Therefore we
ORDER
AND NOW, this 7th day of March, 1974, the order of the Unemployment Compensation Board of Review denying benefits to William J. Knox, Jr., is hereby affirmed.
24.2 Jones v. Review Board, 399 N.E.2d 844 (1980) 24.2 Jones v. Review Board, 399 N.E.2d 844 (1980)
Tenner R. JONES, Appellant,
v.
REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, Appellee.
Court of Appeals of Indiana, Third District.
Joel A. Lauer, South Bend, for appellant.
845*845 Theo. L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.
GARRARD, Presiding Judge.
Appellant Tenner R. Jones appeals from a decision of the Review Board of the Indiana Employment Security Division (Board) which denied her unemployment compensation on the basis that she voluntarily left her employment without good cause in connection with her work.
Jones worked for Marian Hill as a cook from December 12, 1977 through March 24, 1978. When she was offered the position she informed her supervisor that she could only work the hours of 9:00 a.m. to 3:00 p.m. because she had family responsibilities. In March 1978, Jones was told that her hours would be changed to 9:00 a.m. to 6:00 p.m. When Jones protested the change she was told that if she did not work the new hours, someone would be hired that would. Jones then agreed to accept the change of hours. The next day, however, Jones informed her supervisor that she could not work the hours because she had four children at home to care for. Jones agreed to continue working until a replacement was found.
Jones contends on appeal that the Board's decision was contrary to law since the reason for termination, a change in her working conditions contrary to an existing employment contract, constituted good cause.
Generally, an employer has the prerogative of setting business hours, working schedules and working conditions in the absence of a specific agreement. However, an employee has the right to place conditions or limitations on his employment. If such conditions are made known to the employer and are agreed to by it, these conditions become contractual working conditions. If the working conditions are unilaterally changed by the employer and the employee chooses to terminate the employment rather than accept the change, the employee will be entitled to unemployment benefits since the reason for termination was a change in work agreed to be performed by the employee. Such reason constitutes good cause. Wade v. Hurley (1973), 33 Colo. App. 30, 515 P.2d 491; Gray v. Dobbs House, Inc. (1976), Ind. App., 357 N.E.2d 900 (concurring opinion). Likewise, if the employee is discharged for refusal to accept a unilateral change in the agreed upon working conditions, the employee would be entitled to benefits as the discharge would not be for just cause as it is defined in IC XX-X-XX-X.[1] However, if the employee chooses to remain in the employment under the changed conditions, the prior agreed upon condition will be deemed to have been abandoned and will no longer be considered part of the working conditions.
In the case at hand, the record supports a Board determination that Jones agreed to the change in the theretofore agreed upon working conditions. Therefore, she was not entitled to good cause status for terminating her employment because of the change. Additionally we note that leaving employment because of family responsibilities constitutes leaving without good cause. Gray v. Dobbs House, Inc. (1976), Ind. App., 357 N.E.2d 900.
Jones also contends that the Board's decision is contrary to law because the evidence before the Board shows conclusively that the termination was not voluntary. 846*846 Jones characterizes the employer's statements that she would be replaced if she did not work the hours as coercive threats rendering her termination involuntary. We do not agree. While it is apparent that Jones would have been discharged had she failed to work the additional three hours, she was not thereby forced into tendering her resignation. She was able to choose, of her own free will, to remain employed by working the additional three hours as she had agreed to do. Furthermore, the record reveals that the spectre of discharge was not the cause of her termination. Jones' motivation to leave her employment was induced by her parental responsibilities and her husband's demands that she not work the hours.
The decision of the Board denying benefits is affirmed.
STATON and HOFFMAN, JJ., concur.
[1] IC XX-X-XX-X provides in pertinent part,
"`Discharge for just cause' as used in this section is defined to include but not be limited to separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer; unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness; damaging the employer's property through wilful negligence; refusing to obey instructions; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer's premises during working hours; conduct endangering safety of self or coworkers; incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction or for any breach of duty in connection with work which is reasonably owed employer by an employee."
24.3 MacGregor v. Unemployment Insurance Appeals Board, 689 P.2d 453 (Cal. 1984) 24.3 MacGregor v. Unemployment Insurance Appeals Board, 689 P.2d 453 (Cal. 1984)
PATRICIA MacGREGOR, Plaintiff and Respondent,
v.
UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Appellant; EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Real Parties in Interest and Respondents.
Supreme Court of California.
George Deukmejian and John K. Van de Kamp, Attorneys General, Charlton G. Holland and Asher Rubin, Deputy Attorneys General, for Defendant and Appellant.
Robert J. Shull and Cynthia L. Rice for Plaintiff and Respondent.
No appearance for Real Parties in Interest and Respondents.
OPINION
REYNOSO, J.
When a worker leaves her employment to accompany her "nonmarital partner" to another state in order to maintain the familial relationship they have established with their child does she voluntarily leave work with good cause within the meaning of the statute governing eligibility for unemployment insurance benefits? We left open the possibility that a claimant might show good cause in such circumstances when we decided Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1 [192 Cal. Rptr. 134, 663 P.2d 904] less than two years ago. (1a) We now hold that Patricia MacGregor has established that her quitting was motivated by the need to preserve the family she had established with her nonmarital partner and their child, and that this need constituted good cause for her voluntary departure from work. We therefore affirm the judgment of the Santa Clara County Superior Court ordering the Unemployment Insurance Appeals Board to reconsider its decision and to award benefits to plaintiff if she meets other eligibility requirements.
208*208 Plaintiff Patricia MacGregor worked as a waitress at the Ramada Inn in Santa Clara, California from July 7, 1978, through December 31, 1979. On January 1, 1980, she began a six-month pregnancy leave of absence. According to the terms of her leave, she was to return to work in June of 1980.
MacGregor was engaged to and lived with Dick Bailey, the father of her expected child. Their daughter Leanna was born February 29, 1980. The three continued to live together as a family. Bailey acknowledged that he was Leanna's father.
In April, Bailey decided the family should move to New York to live with and care for his 76-year-old father. At the time, his father was under medical care for a variety of serious ailments and anticipated surgery later that summer. Because of his ill health he no longer wished to live alone. No relatives lived nearby and Bailey was the only child. Bailey's father asked if Bailey, MacGregor and their daughter would come to live with and care for him. In May MacGregor informed her employer that she would not be returning to work.
MacGregor, Bailey and their daughter moved into Bailey's father's home in June. When MacGregor was unable to find work, she applied for unemployment insurance benefits. Her claim was referred to the California Employment Development Department (Department), which determined that she had quit voluntarily without good cause and was thus ineligible for benefits. (Unemp. Ins. Code, § 1256.)[1]
MacGregor appealed this decision. A hearing was conducted before a referee in Massena, New York. The transcript was referred to the Department where it was considered by an administrative law judge. The judge determined MacGregor had left her most recent work voluntarily without good cause and was thus disqualified from receiving benefits. Although the judge found evidence in the record indicating that Bailey had to return to New York to care for his father who was ill, the judge concluded that "it [was] not apparent why it was essential for the claimant to follow." Since there was no marriage, no plans to marry at a certain future date, and no assurance the relationship would continue for any particular period of time, the judge found there was no family unit to be preserved.
MacGregor again appealed. The California Unemployment Insurance Appeals Board (Board) adopted as its own the administrative law judge's decision and statement of facts and reasons. Plaintiff then sought a writ of 209*209 mandate from the Santa Clara Superior Court pursuant to Code of Civil Procedure section 1094.5.
After considering the record of the administrative proceeding, the superior court found plaintiff had good cause for leaving her employment. The court found as facts that MacGregor had lived with Bailey for three years, that she and Bailey had established a family unit with their child, that Bailey had decided to move to New York, and that plaintiff had chosen to leave her employment and relocate to New York in order to maintain and preserve their family unit. The court concluded that these underlying facts established good cause for plaintiff's quitting pursuant to section 1256 and that she was therefore entitled to receive benefits if otherwise qualified.
The court issued a peremptory writ of mandate directing the Board to set aside its decision and to reconsider its action in light of the court's findings of fact and conclusions of law. The Board appealed. While the Board's appeal was pending, this court decided Norman v. Unemployment Insurance Appeals Board, supra, 34 Cal.3d 1.
In Norman we discussed the meaning of "good cause" under section 1256. Section 1256 provides that "an individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work...."
(2) Whether or not there is "good cause" within the meaning of section 1256 is a question of law (Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d 1, 6) which must be answered in relation to the particular facts of each case. (Cal. Portland Cement Co. v. Cal. Unemp. Ins. Appeals Bd. (1960) 178 Cal. App.2d 263, 274 [3 Cal. Rptr. 37].) Good cause may exist for reasons which are personal and not connected to the employment situation (id. at p. 272), but those reasons must be imperative and compelling in nature. (Evenson v. Unemployment Ins. Appeals Bd. (1976) 62 Cal. App.3d 1005, 1016 [133 Cal. Rptr. 488].) (3) Several Courts of Appeal have defined "good cause" as used in section 1256 to mean "such a cause as justifies an employee's voluntarily leaving the ranks of the employed; ... such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed. (81 C.J.S., Social Security and Public Welfare, § 167, p. 253.)" (Evenson v. Unemployment Ins. Appeals Bd., supra, 62 Cal. App.3d at p. 1016; Zorrero v. Unemployment Ins. Appeals Bd. (1975) 47 Cal. App.3d 434 [120 Cal. Rptr. 855].)
210*210 (4a) Precedent decisions of the Board[2] have long recognized that the circumstances attendant upon a worker's decision to leave employment in order to accompany a spouse and family to a new home may be so compelling as to constitute good cause for quitting within section 1256. Thus, in In re Dipre (1976) Cal. Unemp. Ins. App. Bd. Precedent Benefit Dec. No. P-B-230, a husband had decided to return to a former home in Pennsylvania after his wife informed him that she planned to leave California with their three minor children and make her home in Pennsylvania regardless of his desires. The Board determined that the husband acted under compelling circumstances. His decision to leave employment in order to preserve his marriage and the family unit was a reasonable one, which constituted good cause under section 1256.
In 1982 the Legislature added the fourth paragraph to section 1256 which recognizes that the desire to preserve a marital relationship, or a relationship in which marriage is imminent, may constitute good cause within the meaning of the statute.[3] The Legislature explicitly stated that the amendment was intended to overturn the Court of Appeal decision in Norman v. Unemployment Ins. Appeals Bd. (which had found good cause based on a nonmarital relationship) and to "endorse the policy of the Employment Development Department, as expressed in its regulations, which distinguishes persons who are married or whose marriage is imminent from others in determining whether a person has left his or her most recent work without good cause...." (Stats. 1982, ch. 1073 § 13, pp. 3873-3874.)
The Court of Appeal's decision in Norman was vacated when this court granted a hearing. This court's opinion issued subsequent to the amendment of section 1256. While not specifically addressing or construing the newly enacted statutory presumption, the opinion did reach a result consistent with the statute. We found that a claimant who had left California to preserve her relationship with the man she planned to marry had not established good cause. The record contained no indication that the couple's marriage was imminent and lacked sufficient indications of the need to preserve a permanent and lasting familial relationship. Citing a line of appellate decisions declining to equate nonmarital relationships with marriage for all purposes, the Norman opinion concluded that "[t]he Legislature's decision to give weight to marital relationships in the determination of `good cause' supports 211*211 public policy encouraging marriage and is a reasonable method of alleviating otherwise difficult problems of proof." (34 Cal.3d at p. 8.) "The inevitable questions would include issues such as the factors deemed relevant, the length of the relationship, the parties' eventual plans as to marriage, and the sincerity of their beliefs as to whether they should ever marry." (Id. at p. 10.)
Nevertheless, this court explained there was nothing about Norman's lack of a legally recognized marriage which precluded her from receiving benefits if she could establish that compelling circumstances made her voluntary leaving "akin to involuntary departure." (Ibid.) Using a hypothetical which foresaw the claim now before us, the Norman court suggested that some significant factor in addition to the nonmarital relationship might provide the necessary compelling circumstance: "Thus, for example, where there are children of a nonformalized relationship, and an employee leaves his or her position to be with a nonmarital loved one and their children, good cause might be shown." (Ibid.)
It is apparent from the Norman decision's treatment of the subject that the presumption which attaches to a couple that is legally married is not the exclusive means of demonstrating good cause based on compelling family circumstances. Regulations of the Department itself recognize the "existing or prospective marital status of the claimant" as but one of three kinds of domestic obligations which might compel a person to leave work with good cause. (Cal. Admin. Code, tit. 22, § 1256-9 et seq.)[4]
The decisions of the administrative law judge and the Board in this case rested on the lack of a legally recognized marriage between MacGregor and Bailey, ignoring the existence of any family unit. (5) When reviewing a decision of the Board on a petition for writ of mandate, however, the superior court must exercise its independent judgment on the evidence in the 212*212 administrative record. (Code Civ. Proc., § 1094.5; Interstate Brands v. Unemp. Ins. App. Bd. (1980) 26 Cal.3d 770 [163 Cal. Rptr. 619, 608 P.2d 707].) The court may make its own findings and conclusions based on the evidence before it. (Thomas v. California Emp. Stab. Com. (1952) 39 Cal.2d 501, 504 [247 P.2d 561].) These conclusions will be upheld on appeal if they are supported by substantial evidence. (Rowe v. Hansen (1974) 41 Cal. App.3d 512, 518-519 [116 Cal. Rptr. 16].)
(1b) The evidence here amply supports the trial court's findings that MacGregor had "established a family unit consisting of herself, her fiance and their child" and that she "chose to relocate to New York with her fiance and their child in order to maintain and preserve their family unit." The record shows that MacGregor and Bailey had maintained a common household for over two years prior to the birth of their daughter. When the child was born the parents received her into that home and gave her Bailey's surname. It is clear that both MacGregor and Bailey intend to and do provide a stable and secure home for their daughter.
It is difficult to conceive of a more fundamental familial relationship than one which is created when two parents establish a home with their natural child. According to Black's Law Dictionary, "family" "most commonly refers to group of persons consisting of parents and children; ..." (5th ed. 1979.) In Moore Shipbuilding Corporation v. Industrial Accidents Commission (1921) 185 Cal. 200, 207 [196 P. 257, 13 A.L.R. 676], this court stated that "family" may "mean different things under different circumstances. The family, for instance, may be ... a particular group of people related by blood or marriage, or not related at all, who are living together in the intimate and mutual interdependence of a single home or household...." This court has recognized that "the family is the basic unit of our society, the center of the personal affections that ennoble and enrich human life. It channels biological drives that might otherwise become socially destructive; it ensures the care and education of children in a stable environment; it establishes continuity from one generation to another; it nurtures and develops the individual initiative that distinguishes a free people." (De Burgh v. De Burgh (1952) 39 Cal.2d 858, 863-864 [250 P.2d 598].)
The Legislature has explicitly recognized that the legal relationship between a child and his or her parents is not dependent upon the existence of a marriage between the parents. (See Civ. Code, § 7001 et seq.) Civil Code section 7002 provides: "The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." Once that relationship is shown to exist, the "rights, privileges, duties, and obligations" of parent and child are conferred. (Civ. Code, 213*213 § 7001.) Sections 7003 and 7004 establish the methods by which a legally recognized relationship of parent and child may be established. Among the conditions which raise a presumption that a man is the natural father of a child is that "he receives the child into his home and openly holds out the child as his natural child." (Civ. Code, § 7004, subd. (a)(4).)
Leanna was only two months old when Bailey decided his father's illness required him to move to New York. The need for MacGregor to follow — which the administrative law judge could not fathom — is in our view manifest. The intimate nature of the family bond among these three individuals would have been forever altered had MacGregor decided that she, or she and Leanna, should not accompany Bailey to New York.
The Board's arguments here, like the administrative decisions below, focus on the lack of a legal marriage relationship between plaintiff and Bailey. The Board urges that leaving work to join a spouse should be deemed good cause only where there is a marriage to be preserved. This rule, according to the Board, is consistent with the public policy favoring marriage and with laws which afford special benefits and protections to that institution. (E.g., Civ. Code, § 242 [duty to support spouse]; Code Civ. Proc., § 1730 et seq. [establishing conciliation procedures]; Cohen v. Cohen (1946) 73 Cal. App.2d 330, 335-336 [166 P.2d 622] [law will not recognize contract with the object of dissolving marriage].) The rule would also avoid the difficulties and dangers which would accompany a requirement that administrative agencies and the courts make individualized determination of the "true nature" of intimate personal relationships.
This court considered similar arguments in Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d 1. There, although we declined to find good cause based solely on a nonmarital relationship in which marriage was not imminent, we explicitly declined to hold that a legal marriage is a prerequisite for establishing good cause where other indices of compelling familial obligations exist. (34 Cal.3d at pp. 9-10.) Today we reaffirm the principle that the lack of a legally recognized marriage does not prevent a claimant from demonstrating that compelling familial obligations provided good cause for leaving employment.[5]
The state's policy in favor of maintaining secure and stable relationships between parents and children is equally as strong as its interest in preserving 214*214 the institution of marriage. The Legislature has declared that the rights and obligations of parents and children exist regardless of the marital status of the parents. (Civ. Code, § 7002.) The purposes of the conciliation statutes relied on by the Board include the protection of the rights of children as well as the protection of the institution of matrimony. (Code Civ. Proc., § 1730.) The courts have recognized the family as a basic unit of our society. (De Burgh v. De Burgh, supra, 39 Cal.2d 858, 863-864.)
The problems of proof which concerned this court in the Norman case are not substantial in this situation where the basis for the familial relationship is clear and objectively verifiable. Plaintiff and her fiance share a home with their natural child. Both have acknowledged the child as theirs and have assumed the responsibilities of providing for her care and support, as well as the benefits of her company and companionship.
The Board asserts that a claimant who leaves employment to accompany a spouse to a different locality must show that the spouse was forced to establish the new domicile by "compelling circumstances" which would constitute good cause. (4b) Prior decisions of the Board recognize, however, that even if one spouse's reason for relocating appears arbitrary, the importance of preserving the marital or familial relationship may provide good cause for the other spouse's decision to follow. (In re Dipre, supra, P-B-230.)
(1c) In this case the decisions of the administrative law judge and the Board conceded that Bailey had a good reason for relocating: the care of his elderly and ill father. This would constitute a compelling circumstance under the Department's own regulations. (22 Cal. Admin. Code., tit. 22, § 1256-11, subd. (c)(2).) The trial court found as matters of fact that Bailey made the decision to move and that plaintiff chose to go with him in order to preserve their family unit. The court's findings are supported by substantial, credible and competent evidence. (Rowe v. Hansen, supra, 41 Cal. App.3d 512.) The conclusion that MacGregor had "such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed" is entirely consistent with the laws and public policies of the State of California.
As the record clearly supports the trial court's finding that plaintiff had good cause for leaving work, the judgment is affirmed.
215*215 Mosk, J., Kaus, J., Grodin, J., and Lucas, J., concurred.
Bird, C.J., and Broussard, J., concurred in the result.
[1] Statutory references are to the Unemployment Insurance Code unless otherwise noted.
[2] The Board reviews decisions of administrative referees for inconsistency with statute, established case law, or prior decisions of the Board. It may designate certain decisions as precedent decisions. (§§ 401, 409.)
[3] The fourth paragraph of section 1256 provides: "An individual may be deemed to have left his or her most recent work with good cause if he or she leaves employment to accompany his or her spouse to a place from which it is impractical to commute to the employment."
[4] The parties agree that the regulations, which became effective May 18, 1980, are not controlling in this case. They nevertheless provide guidance as to the kinds of familial obligations that the board generally considers compelling. In addition to obligations arising out of the existing or prospective marital status of the claimant, legal or moral obligations relating to the health, care, or welfare of the claimant's family, or to the exercise of parental control over a claimant who is an unemancipated minor may also give rise to a voluntary leaving with good cause. (Id., § 1256-9.) Family is broadly defined to include "the spouse of the claimant, or any parent, child, brother, sister, grandparent, grandchild, son-in-law, or daughter-in-law, of the claimant or of the claimant's spouse, including step, foster, and adoptive relationships, or any guardian or person with whom the claimant has assumed reciprocal rights, duties, and liabilities of a parent-child, or a grandparent-grandchild relationship, whether or not the same live in a common household." (Ibid.) Compelling circumstances may be found where a minor child of the claimant requires care and supervision and there is no reasonable alternative (§ 1256-10. subd. (c)(5)) and where there is a need to preserve family unity (§ 1256-10, subd. (c)(6)).
[5] In light of this decision we need not resolve plaintiff's contention that a nonmarital rule unconstitutionally infringes her right of privacy in the matters of marriage and reproduction.
24.4 Pabst v. Oklahoma Gas & Electric Co. 24.4 Pabst v. Oklahoma Gas & Electric Co.
Kathy PABST; James Gilley; and Steve Barton, Plaintiffs-Appellees and Cross-Appellants, v. OKLAHOMA GAS & ELECTRIC COMPANY, Defendant-Appellant and Cross-Appellee.
Nos. 99-6108, 99-6150.
United States Court of Appeals, Tenth Circuit.
Sept. 20, 2000.
*1130Deborah H. Bornstein, Gardner, Carton & Douglas, Chicago, Illinois (Hugh D. Rice, Roberta Browning Fields, Rainey, Ross, Rice & Binns, Oklahoma City, Oklahoma, and Katherine N. O’Connell, Gardner, Carton & Douglas, Chicago, Illinois, with her on the briefs), for the Defendant-Appellant and Cross-Appellee.
Andrew W. Lester (Susan B. Loving and Shannon F. Davies on the briefs), Lester, Loving & Davies, P.C., Edmond, Oklahoma, for the Plaintiffs-Appellees and Cross-Appellants.
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
We again explore the question of when “on-call” time becomes sufficiently onerous to render it compensable under the Fair Labor Standards Act (“FLSA”). Surveying our precedents and applying them to the facts of this case, we conclude that plaintiffs’ on-call duties requiring them to continually monitor automated alarms by pager and computer were compensable un*1131der the FLSA. In so holding, we reject the argument that on-call monitoring time is not compensable unless contemporaneously reported to the employer as overtime. Further, we uphold the district court’s determination that the employer’s FLSA violation was not willful, and affirm both the award of prejudgment interest and the denial of liquidated damages. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
Plaintiffs are Electronic Technicians in Oklahoma Gas & Electric’s (“OG&E”) Facility Operations Department. Plaintiffs Pabst and Gilley were Electronic Technician I’s (“Tech Is”) and plaintiff Barton was an Electronic Technician II (“Tech 2”). The three plaintiffs, along with two other employees, monitored automated heat, fire, and security systems in several OG&E buildings. Prior to an August 1994 reduction in force, these duties required twelve on-site employees working three eight-hour shifts.
Plaintiffs were on call to monitor OG&E building alarms weekdays from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends. During these hours, alarms went to computers at Pabst’s and Gilley’s homes, as well as to pagers for all plaintiffs. After October 1994, Barton began to receive alarms at home via lap-top computer. Plaintiffs were required to respond to the alarms initially within ten minutes, then, after October 1996, within fifteen minutes. Failure to respond within the time limit was grounds for discipline. Each plaintiff was assigned, and required always to carry, an alpha-numeric pager. These pagers were only 70% reliable. The short response time, coupled with unreliable pagers, forced plaintiffs to remain at or near their homes while on call.
The district court found that plaintiffs received an average of three to five alarms per night, not including pages for security issues. Although not all alarms required plaintiffs to report to the office — it appears many could be fixed by remote computer— the district court found it took an average of forty-five minutes to respond to each alarm. Neither party disputes those findings on appeal.
At trial, the parties did dispute whether a rotational on-call schedule was ever proposed or implemented. Acknowledging the dispute, the district court found that “[c]ontrary to OG&E’s contention, an examination of the overtime hours actually billed by plaintiffs does not demonstrate that a rotational schedule was ever in effect; rather, the records reveal significant overlap among the technicians, which indicates to the court that no rotational schedule was ever implemented prior to June 1997.” (I Appellant’s App. at 57.) The district court also found a rotational schedule would not have been feasible because of the frequency of alarms and plaintiffs’ differing areas of expertise.
According to plaintiffs, their supervisor instructed them to report only on-call time spent responding to an alarm. OG&E paid plaintiffs for at least one hour for each alarm to which they responded, and two hours if they had to return to OG&E facilities. Plaintiffs apparently reported some, but not all, of the alarms they answered, but did not claim as overtime the remainder of their time spent on call.
Considerable testimony was presented regarding the extent to which monitoring interfered with plaintiffs’ personal activities. Most significantly, an average of three to five alarms per night, each requiring on average forty-five minutes of work, severely disrupted plaintiffs’ sleep habits; indeed, they testified to rarely experiencing more than five hours of uninterrupted sleep per night. In addition, even during waking hours, plaintiffs were unable to pursue many personal activities while on call because of the need to come into their homes to check their computers every fifteen minutes.
The district court found plaintiffs’ on-call time compensable under the FLSA and awarded them compensation for fifteen hours per weekday and twenty-four hours per Saturday and Sunday, less any hours *1132already paid for responding to alarms. Because it found OG&E’s violation was not willful, however, the district court limited recovery to the two-year limitations period. It also refused to award liquidated damages, finding that the FLSA violation was reasonable and in good faith. OG&E appeals the district court’s rulings on liability, damages, and prejudgment interest, while plaintiffs cross-appeal the district court’s ruling denying liquidated damages and its finding of no willful violation.
II
“We review the district court’s findings of fact under the clearly erroneous standard; conclusions of law we review de novo.” Armitage v. City of Emporia, 982 F.2d 430, 481 (10th Cir.1992) (citations omitted).
With certain exceptions not relevant here, the FLSA requires an employer to pay a minimum wage for each hour it “employ[s]” an employee, as well as an overtime premium for hours in excess of forty per week. See 29 U.S.C. §§ 206, 207, 213. “Employ” is defined as including “to suffer or permit to work.” Id. § 203(g). The pertinent question, and one with which courts have struggled, is whether on-call time is “work” for purposes of the statute. The FLSA does not explicitly address the issue of on-call time.1 Courts, however, have developed a jurisprudence of on-call time, based on the Supreme Court cases of Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Those cases determine the relevant inquiry to be whether an employee is “engaged to wait” or “wait[ing] to be engaged,” Skidmore, 323 U.S. at 137, 65 S.Ct. 161, or, alternatively, whether on-call time is spent predominantly for the benefit of the employer or the employee, see Armour, 323 U.S. at 133, 65 S.Ct. 165. Necessarily, the inquiry is highly individualized and fact-based, see Skidmore, 323 U.S. at 136-37, 65 S.Ct. 161; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir.1988), and “requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances,” Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir.1989) (citing Skidmore, 323 U.S. at 137, 65 S.Ct. 161): We also focus on the degree to which the burden on the employee interferes with his or her personal pursuits. See Armitage, 982 F.2d at 432. Several facts are relevant in assessing that burden: number of calls, required response time, and ability to engage in personal pursuits while on call. See id.; Renfro v. City of Emporia, 948 F.2d 1529, 1537-38 (10th Cir.1991).
A
OG&E argues that it did not know plaintiffs were working the entire time they were on call and thus did not “suffer or permit” them to work. 29 U.S.C. § 203(g). Its theory goes as follows: Plaintiffs were responsible for reporting their own overtime;2 because they reported only time spent responding to calls (and *1133apparently not even all of that), rather than all of their on-call time, OG&E lacked knowledge that they were working and therefore did not suffer or permit them to work. This argument misinterprets the nature of the on-call time inquiry and borders on the disingenuous.
As a factual matter, OG&E’s purported lack of actual knowledge is dubious. Plaintiffs cite record testimony detailing a reprimand Pabst received for attempting to report the entire time spent monitoring systems as overtime. Although OG&E attempts to discount this testimony because the incident occurred after the cessation of the particular on-call monitoring system at issue here, the testimony nevertheless lends support to plaintiffs’ assumption that it would have been futile — or even harmful — for plaintiffs if they had attempted to report all of their on-call time as overtime. More significantly, OG&E’s policy informed plaintiffs they would be compensated only for on-call time spent responding to an alarm. The only logical inference was that they would not be compensated for time spent monitoring their computers and pagers, unless they took some specific action responding to an alarm. To claim, then, that OG&E did not know plaintiffs were working because they did not report every hour of their evenings and weekends as overtime is misleading. While OG&E arguably may have lacked knowledge of the legal proposition that the FLSA required compensating plaintiffs for their on-call time under the system at issue, OG&E certainly knew that plaintiffs were performing the duties they had been assigned.
OG&E relies heavily on Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986) for its knowledge theory. In Davis, 792 F.2d at 1275, the court found that “Food Lion has an established policy which prohibits employees from working unrecorded, so-called ‘off-the-clock’, hours.” Davis argued that Food Lion’s “Effective Scheduling” system required him to work such off-the-clock hours in order to perform his required duties and avoid reprimand. See id. at 1275-76. The Fourth Circuit held the FLSA “required Davis to prove Food Lion’s actual or constructive knowledge of his overtime work,” id. at 1276, and found no clear error in the district court’s “factual finding that Food -Lion has no actual or constructive knowledge of Davis’s off-the-clock work,” id. at 1277.
Davis is not applicable to the case before us. First, there is no evidence of anything like an explicit prohibition on plaintiffs’ performing after-hours monitoring duties; on the contrary, such was the very essence of their responsibilities. Moreover, Davis was not, as plaintiffs correctly note, an on-call time case. In the on-call context, an employer who creates an on-call system obviously has constructive, if not actual, knowledge of employees’ on-call duties. An employer must evaluate whether those duties are compensable under the FLSA, and if the employer concludes they are not, the employees do not bear the burden of submitting overtime requests for hours that fall outside the definition of what the employer classifies as compensable. Plaintiffs reported (apparently with some omissions) the hours to which they were entitled under OG&E’s policy. That they did not report the entirety of their remaining on-call hours does not preclude the obvious conclusion that OG&E had knowledge of their on-call status.
OG&E’s contention that the existence of a rotating on-call schedule prevented it from gaining actual or constructive knowledge of the full extent of plaintiffs’ on-call hours implicates a disputed issue of fact. We review the district court’s resolution of that dispute for clear error. See Armitage, 982 F.2d at 431. If plaintiffs were only on call one week out of three, there would certainly be a problem with each claiming on-call time for every week. However, as the district court noted, the alleged existence of a rotational schedule is contradicted by the significant overlap in the overtime hours reported by plaintiffs. Indeed, in its motion for reconsideration, OG&E conceded that even under its preferred *1134“rotational schedule” analysis—under which one plaintiff was on call for a week running from 7:30 a.m Friday to 7:30 a.m. Friday, rather than calendar weeks—there were weeks when both Pabst and Barton recorded time. Given that concession the district court’s resolution of the disputed factual question of the existence of a rotational schedule did not amount to clear error.
B
Whether a particular set of facts constitutes compensable “work” under the FLSA is a legal question we review de novo. See Berry v. County of Sonoma, 30 F.3d 1174, 1180 (9th Cir.1994). In Renfro, 948 F.2d at 1536-38, we granted FLSA compensation to firefighters for their on-call time. Renfro’s facts include the following:
the firefighter must be able to report to the stationhouse within twenty minutes of being paged or be subject to discipline; that the on-call periods are 24-hours in length; and primarily that the calls are frequent—a firefighter may receive as many as 13 calls during an on-call period, with a stated average frequency of 3-5 calls per on-call period.
Id. at 1535 (quoting Renfro v. City of Emporia, 729 F.Supp. 747, 751 (D.Kan.1990)).
OG&E emphasizes that all but one published Tenth Circuit case addressing on-call time have found it non-compensable. See, e.g., Andrews v. Town of Skiatook, 123 F.3d 1327, 1328-32 (10th Cir.1997); Gilligan v. City of Emporia, 986 F.2d 410, 413 (10th Cir.1993); Armitage, 982 F.2d at 432-33; Boehm, 868 F.2d at 1185; Norton, 839 F.2d at 654. But see Renfro, 948 F.2d at 1538. Counting published cases, however, is meaningless in resolving a fact-intensive question such as the compensability of on-call time. Rather, the proper question is which case is most analogous. Comparing Renfro with the cases cited by appellant reveals that a critical distinction in the highly fact-specific inquiry is the frequency of calls. See Gilligan, 986 F.2d at 412 (“[W]e noted in Renfro that the frequency of call backs was the factor which the Renfro district court cited as distinguishing that case from others which had previously held that on-call time was not compensable.”); cf. Armitage, 982 F.2d at 432 (holding on-call time non-compensable, unlike in Renfro, because the plaintiffs were “called in on average less than two times per week”). As in Renfro, 948 F.2d at 1537, plaintiffs experienced three to five calls per on-call period. Additionally, although plaintiffs did not always actually report to OG&E’s plant, they were required to take some action by computer within fifteen minutes, another burdensome element present in Renfro, id. In sum, this case is far more analogous to Renfro than to the more numerous precedents cited by OG&E.
Although OG&E complains bitterly against having to compensate plaintiffs for working twenty-four hours a day, seven days a week, the cost to an employer of an “always on call” arrangement does not mean that such a system is not cognizable under the FLSA, so long as the on-call time qualifies as work under the relevant FLSA precedents. While one circuit has held that always being on call, while extremely burdensome, does not in and of itself make the on-call time compensable for FLSA purposes, see Bright v. Houston Northwest Med. Ctr. Survivor, Inc., 934 F.2d 671, 678-79 (5th Cir.1991) (en banc), another circuit found that requiring employees to monitor and respond all day, every day is a factor weighing in favor of compensability, see Cross v. Arkansas Forestry Comm’n, 938 F.2d 912, 916-17 (8th Cir.1991) (holding that on-call time is com-pensable under the FLSA because employees were required to continuously monitor transmissions and respond within thirty minutes, and because they were subject to on-call status twenty-four hours per day for every day of a work period). We agree with both Bright and Cross: Although always being on call is not dispositive, such an added burden is relevant in assessing the extent to which all-the-time on-call *1135duty deprives employees of the ability to engage in personal activities.
The only significant difference between the burden on the plaintiffs in Renfro and the burden on Pabst, Gilley, and Barton is that plaintiffs here often did not have to report to the employer’s workplace in order to respond to calls. This lighter burden, however, is offset by the fact that plaintiffs, unlike the firefighters in Renfro, were not on call for “six shifts of twenty-four hours each in a 19-day cycle,” Renfro, 948 F.2d at 1531, but rather during all of their off-premises time. The frequency of calls here actually is greater than in Ren-fro because plaintiffs’ calls during weekdays occurred during a fifteen hour, rather than a twenty-four hour, period. Additionally, in Renfro, we found on-call time com-pensable despite the fact that the firefighters “had participated in sports activities, socialized with friends and relatives, attended business meetings, gone shopping, gone out to eat, babysitted, and performed maintenance or other activities around their home.” Id. at 1532 (citation and internal quotation omitted). Renfro controls the application of the FLSA to the facts before us, and leads us to hold that the district court was correct in finding plaintiffs’ on-call time compensable.
III
We next consider OG&E’s claims that the award of overtime compensation should be reduced by subtracting out several time periods.
We reject, as a matter of law, OG&E’s argument that time spent in personal pursuits should be subtracted. The relevant inquiry in on-call cases is not whether plaintiffs’ duties prevented them from engaging in any and all personal activities during on-call time; rather it is “whether ‘the time is spent predominantly for the employer’s benefit or the employee’s.’ ” Boehm, 868 F.2d at 1185 (quoting Armour, 323 U.S. at 133, 65 S.Ct. 165). This is a yes-no inquiry — whose benefit predominated? OG&E cites no authority for the proposition that a court must determine whose benefit predominated during each on-call hour. Cf. Renfro, 948 F.2d at 1532, 1538 (holding firefighters’ on-call time compensable even though they engaged in some personal pursuits during that time).
OG&E’s other arguments for reductions in the damages award, which pertain to individual plaintiffs, are factual issues subject to clear error review. See Armitage, 982 F.2d at 431.
OG&E contends Gilley was not responsible for after-hours alarms from October 1996 through May 1997. The record reflects that from October 1996 to June 1997, Pabst and Barton were responsible for answering alarms, but would call Gilley if they were unable to resolve the problem. Although plaintiffs’ supervisor, Randy Valdez, testified that Gilley “wasn’t on call or he was taken out of the rotation, so after working hours I didn’t expect him to do anything,” (V Appellant’s App., Tab 30, at 554), Gilley testified that he “was never removed out of the system,” (id. at 328), and that he continued to be confined to his home after hours and to regularly respond to calls to assist Barton or Pabst. We find no clear error in the district court’s decision to credit Gilley’s rather than Valdez’s account of his duties during the period he was on backup on-call duty.
OG&E argues that Barton should not have been awarded overtime compensation from October 1994 through October 1, 1996 because during that time he was monitoring alarms only by pager and not by computer. OG&E primarily focuses on the comparatively small amount of remote overtime Barton charged during that period, as compared to Gilley and Pabst. However, we are persuaded the district court did not clearly err in determining that Barton, like Gilley and Pabst, received between three and five pages per night during this period, despite the comparatively smaller amount of overtime Barton recorded. We note that Barton testified that he did not report overtime for every *1136alarm he received, but only those in response to which he either went to an OG&E location or “dialed into” OG&E and attempted a repair. (Id. at 472.) The district court’s finding is supported by Barton’s differing responsibilities as a Tech 2, which involved “assist[ing] each of the tech Is.” (Id. at 436.) Even though Barton initially did not have a computer at home, he testified that he was required to keep his pager on at all times and that calls prevented him from getting more than five hours of uninterrupted sleep and engaging in personal activities. While the record does not make especially clear the precise contours oLBarton’s duties during the relevant period, OG&E does not point to anything in the record that renders clearly erroneous the district court’s finding that he received a similar number of calls to the other plaintiffs and experienced similar interference with sleep and other personal activities.
Finally, as discussed above, we find no clear error in the district court’s factual finding that OG&E’s alleged rotational schedule was never put into effect. We therefore decline to overturn the district court’s award of overtime compensation.
IV
Prejudgment interest is ordinarily awarded in federal cases, although it is not available as a matter of right. See Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 763 (10th Cir.1997). “[T]he standard of review on appeal is whether the trial court abused its discretion in awarding ... prejudgment interest.” Id. (quoting U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1255 n. 43 (10th Cir.1988)). OG&E first argues that the award was an abuse of discretion because it did not know of the alleged overtime, an equitable factor weighing against the award of interest. As discussed above, this ignorance argument is without merit because OG&E created the on-call policy and the terms under which plaintiffs could submit overtime.
OG&E advances a second argument—prejudgment interest should be awarded only from the time the complaint was filed, rather than for the entire period of recovery. The general rule, however, is that interest runs “from the time of the loss to the payment of judgment.” Zuchel v. City and County of Denver, 997 F.2d 730, 746 (10th Cir.1993) (quoting U.S. Indus., Inc., 854 F.2d at 1256). We thus discern no abuse of discretion in the district court’s award of prejudgment interest.
V
Plaintiffs cross-appeal the district court’s denial of liquidated damages. We review this issue for abuse of discretion: “[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages.... ” Department of Labor v. City of Sapulpa, 30 F.3d 1285, 1289 (10th Cir.1994) (quoting 29 U.S.C. § 260) (emphasis added). The district court found that OG&E’s actions were reasonable and in good faith for several reasons: OG&E paid double time, rather than just time-and-a-half, for each hour of overtime plaintiffs reported; it permitted plaintiffs to report an hour every time they responded to an alarm, even if they actually spent as little as five minutes; and it was not fully aware of the extent of the burden on plaintiffs until some time in 1997, at which point it took corrective action.
Perhaps we might reach a different conclusion as fact-finders of the first instance, but we find it difficult to call the district court’s conclusion an abuse of discretion. Admittedly, the record here is devoid of the sort of evidence—reliance on attorneys or other experts in personnel matters— that courts have found particularly persuasive in holding FLSA violations reasonable. See, e.g., Cross, 938 F.2d at 917-18 (holding it “was objectively reasonable ... *1137to rely on the decisions of the state’s personnel experts”). Nevertheless, because the law of on-call time under the FLSA is fact-sensitive, and because the facts relied upon by the district court lend at least some support to the conclusion that OG & E acted in good faith under a reasonable, albeit mistaken, belief that its particular on-call scheme was non-compensable under the statute, we find no abuse of discretion. See United States v. Robinson, 89 F.3d 1115, 1116 (10th Cir.1994) (when reviewing a decision for abuse of discretion, “[w]e will not challenge [the district court’s] evaluation unless it finds no support in the record, deviates from the appropriate legal standard, or follows from a plainly implausible, irrational, or erroneous reading of the record”).
Additionally, although we uphold the district court’s finding that no rotational schedule was ever actually put into effect, the record could support a conclusion that OG&E supervisors at some times may have operated under a mistaken but good faith belief that such a schedule was in place. Detailed examination of plaintiffs’ overtime records might have remedied this mistaken belief; however, given the lack of clarity in the record regarding when and how plaintiffs complained of their onerous on-call duties, we do not view the district court’s finding of OG&E’s reasonableness and good faith as an abuse of discretion.
VI
Similarly, we reject plaintiffs’ contention that the district court erred in holding OG&E’s violation of the FLSA was not willful and consequently limiting the damages award to the statute’s two year limitations period. See 29 U.S.C. § 255(a). “The standard for willful violations is whether the employer ‘knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].’ ” Reich v. Monfort, Inc., 144 F.3d 1329, 1334 (10th Cir.1998) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988)) (further citations omitted). “Whether an FLSA violation is willful is a mixed question of law and fact, but we believe the factual issues predominate and therefore consider the issue under a clearly erroneous standard of review.” Id. (citing Reich v. Newspapers of New England, Inc., 44 F.3d 1060, 1079 (1st Cir.1995)). We find no such error: The same facts that support the district court’s conclusion that OG&E’s failure to compensate plaintiffs for all of their on-call time was reasonable and in good faith support the district court’s conclusion that OG&E’s violation of the FLSA was not willful.
VII
The judgment of the district court is AFFIRMED.