                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 11-3380
                                     ___________

Roy Abshire, et al.,                      *
                                          *
      Plaintiffs - Appellants,            *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Arkansas.
Redland Energy Services, LLC,             *
                                          *
      Defendant - Appellee.               *
                                     ___________

                              Submitted: June 14, 2012
                                 Filed: October 10, 2012
                                  ___________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       The Fair Labor Standards Act (“FLSA”) provides that covered workers
employed “for a workweek longer than forty hours” must be compensated “at a rate
not less than one and one-half times the regular rate” for work in excess of forty hours.
29 U.S.C. § 207(a)(1). Five current and former employees of Redland Energy
Services, LLC (“Redland”), commenced this action alleging that Redland violated this
overtime provision by changing the designation of their workweek, but not their work
schedule, so that fewer hours qualified as “overtime.” Agreeing with a Department
of Labor investigator, the district court1 found no FLSA violation and granted
Redland’s motion for summary judgment. Abshire v. Redland Energy Servs., LLC,
822 F. Supp. 2d 874 (W.D. Ark. 2011). The employees appeal, arguing that the
district court misinterpreted § 207(a)(1) and an implementing regulation, 29 C.F.R.
§ 778.105, and that disputed issues of material fact made summary judgment
inappropriate. Reviewing the grant of summary judgment de novo, we affirm. Grey
v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005) (standard of review).

                                         I.

        Redland drills and services natural gas wells in Arkansas. Appellants worked
as operators of Redland’s two drilling rigs. Each crew of operators worked twelve-
hour shifts for seven consecutive days, followed by seven days off. Redland
scheduled its thirty-two drill rig employees to work from Tuesdays through Mondays,
so they would have one weekend off every two weeks. Prior to the change here at
issue, Redland used a Tuesday-to-Monday workweek to calculate overtime owed to
drill rig employees. It used a Sunday-to-Saturday workweek for its twenty other
employees, who worked a traditional Monday-to-Friday schedule in positions such as
truckers, office staff, and operators of other kinds of equipment.

       In May 2009, Redland reduced the size of drill rig crews from five operators to
four and changed the designation of their workweek from Tuesday-to-Monday to the
Sunday-to-Saturday workweek used for other employees. Redland announced the
change in a memo distributed to drill rig employees that advised, “There will be no
adjustment to your work week, which will remain from Tuesday-Monday [but] you
will begin to have a reduction in overtime hours as your work week will be split into
2 payroll periods.” Eighteen months later, the five employees filed this lawsuit on


      1
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.

                                         -2-
behalf of themselves and similarly situated employees who might join the action under
the FLSA’s “opt-in” procedure. See 29 U.S.C. § 216(b). Plaintiffs alleged that, after
this change, they were “only paid twenty (20) hours overtime within the same work
week, even though [they] actually worked eighty-four (84) or more hours in each
work week.”

       In support of its motion for summary judgment, Redland presented evidence
that putting all employees on the same workweek increased efficiency by reducing the
time it takes the office manager to prepare payroll from five to two days a month and
decreased payroll expense by reducing the number of hours that drill rig employees
must be paid at the FLSA-mandated overtime rate. The employees argued to the
district court, as they argue on appeal, that the FLSA prohibits an employer from
changing an existing workweek for the purpose of reducing employee overtime, that
Redland’s true purpose in changing their workweek was to reduce work at overtime
rates, and that Redland’s claim of administrative efficiencies was pretextual.

                                         II.

       In the FLSA’s “maximum hours” provision, 29 U.S.C. § 207(a)(1), “the unit of
time . . . within which to distinguish regular from overtime [work] is the week.”
Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 579 (1942). The statute does
not define the term workweek. The Department of Labor’s regulations have long
provided, logically, that it means

      a fixed and regularly recurring period of 168 hours -- seven consecutive
      24-hour periods. It need not coincide with the calendar week but may
      begin on any day and at any hour of the day. . . . Once the beginning
      time of an employee’s workweek is established, it remains fixed
      regardless of the schedule of hours worked by him.




                                         -3-
29 C.F.R. § 778.105 (emphasis added). Consistent with the plain language of this
regulation, numerous federal and state courts have concluded that an employer does
not violate the FLSA merely because, under a consistently-designated workweek, its
employees earn fewer hours of overtime than they would if the workweek was more
favorably aligned with their work schedules. As one federal court observed:

      [T]he FLSA, standing alone, does not require that the workweek begin
      on any given day of the week. The Act only requires that the starting day
      remain constant and that the employees not work more than 40 hours
      within the 168 hour week without receiving overtime compensation. To
      now recalculate the hours work[ed] by changing the starting day of the
      week from Thursday to Saturday would be arbitrary at best and is
      uncalled for by the Act.

Blasdell v. New York, No. 91-CV-1014, 1992 WL 469733, at *2 (N.D.N.Y. Sept. 8,
1992); accord Oliver v. CenterPoint Energy, Inc., No. H-10-0189, 2010 WL 2163915,
at *5 (S.D. Tex. May 27, 2010); Sloat v. Davidson Ore Min. Co., 71 F. Supp. 1010,
1012 (W.D. Mich. 1942); Pappas v. Kerite Co., No. 39378, 1949 WL 660, at *3
(Conn. Ct. Com. Pleas Apr. 27, 1949); Harned v. Atlas Powder Co., 192 S.W.2d 378,
380 (Ky. 1946); Barclay v. Magnolia Petroleum Co., 203 S.W.2d 626, 628 (Tex. Civ.
App. 1947). We agree with these decisions. We are aware of no contrary authority,
except dicta in Seymore v. Metson Marine, Inc., 128 Cal. Rptr. 3d 13, 18 (Ct. App.
2011), a decision applying an overtime provision of the California Labor Code “that
may provide employees greater protection than the FLSA.” The description in
Seymore of the above-cited FLSA authorities was wrong. See id. at 19-22. We
decline to afford that decision any weight in construing the FLSA.

        Having concluded that the FLSA does not prescribe how an employer must
initially establish its “workweek” for overtime purposes, we come to the issue raised
in this case -- whether the FLSA limits an employer’s freedom to change an existing
workweek designation. Again, § 778.105 of the Department of Labor’s regulations


                                         -4-
directly addresses the issue: “The beginning of the workweek may be changed if the
change is intended to be permanent and is not designed to evade the overtime
requirements of the Act.” This sentence makes one limitation clear -- a change must
be “intended to be permanent.” But that is not at issue here. Appellants have never
challenged Redland’s contention that the May 2009 change in the oil rig operators’
workweek was intended to be permanent. Rather, Appellants argue that Redland’s
change violated § 207(a)(1) because it was made for the purpose of reducing the
number of hours in their normal work schedules that must be paid at the overtime rate,
and therefore it was “designed to evade the overtime requirements of the Act.”

        The caution that a workweek change may not be designed to evade the
requirements of § 207(a)(1) has been part of the Department of Labor’s interpretive
pronouncements since the FLSA was first enacted. See Department of Labor,
Interpretative Bulletin No. 4, ¶ 3 (Nov. 1, 1938), cited in Harned, 192 S.W.2d at 380.
It was an understandable caution in advising how this initially controversial Act would
be construed and applied. Many early FLSA cases dealt with payroll plans devised
to evade the Act’s new payroll expense obligations. For example, in an early case
applying § 207(a), the Supreme Court invalidated a “split-day” compensation plan “so
designed as to deprive the employees of their statutory right to receive [overtime pay]
for all hours worked in excess of the first regular 40 hours.” Walling v. Helmerich &
Payne, Inc., 323 U.S. 37, 40 (1944). That decision is now codified in the regulations.
See 29 C.F.R. § 501(a). But the Department has never interpreted its general caution
that changes to the workweek may not be “designed to evade the overtime
requirements,” nor has it attempted to clarify what constitutes “evasion.”

       The precise issue before us was presented, and Appellants’ contention
persuasively rejected, in a case applying overtime requirements of the Illinois
Minimum Wage Law for which administrative regulations including 29 C.F.R.
§ 778.105 had been adopted. Kerbes v. Raceway Assocs., LLC, 961 N.E.2d 865, 870
(Ill. App. 2011). In Kerbes, the racetrack employer changed its designated workweek

                                         -5-
so as to split racing event weekends into two different workweeks, eliminating
overtime pay for its part-time hourly employees. Concluding that an employer’s right
to establish a workweek was “well-settled” by the above-cited cases, the court further
concluded the racetrack’s

      modification of its workweek did not violate the overtime requirements
      of the FLSA. . . .[T]he FLSA does not require a workweek schedule that
      maximizes an employee’s accumulation of overtime pay. Thus, a
      schedule whereby an employee’s actual work schedule is split between
      two workweeks does not violate the federal legislation. If such a
      schedule does not itself violate the FLSA, we fail to see how a change to
      such a schedule could be viewed as having been “designed to evade the
      overtime requirements of this Act.”

Id. at 872. We agree with this reasoning.

        Appellants argue that a workweek change intended to reduce hours of overtime
earned is contrary to the purposes of the FLSA’s overtime requirements and is
therefore “designed to evade” those requirements. We disagree. Appellants’
assumption that an original purpose of the FLSA was to maximize the payment of
overtime rates is contrary to more contemporary authority. See Missel, 316 U.S. at
578 (“In a period of widespread unemployment and small profits, the economy
inherent in avoiding extra pay was expected to have an appreciable effect in the
distribution of available work.”). Thus, an employer’s effort to reduce its payroll
expense is not contrary to the FLSA’s purpose. Moreover, Christensen v. Harris
Cnty., 529 U.S. 576, 585 (2000), clearly teaches that courts may not imply a
prohibition that cannot be found in the Act. Cases involving other FLSA requirements
illustrate this principle. For example, in Lamon v. City of Shawnee, 972 F.2d 1145,
1153 (10th Cir. 1992), the court concluded that a public employer’s new workweek
adopted to take advantage of an FLSA amendment did not violate the Act “[e]ven if
[the employer’s] sole purpose were to avoid the prospect of paying overtime rates.”


                                         -6-
And in Morehead v. City of Pearl, 763 F. Supp. 175, 176 (S.D. Miss. 1990), the court
noted that a scheduling change intended to reduce overtime hours was not “an
evasion” of the overtime requirements; it was “straight-up avoidance” of overtime that
the FLSA does not require be paid.

      We reject Appellants’ contention that an employer’s permanent change in the
designated workweek violates § 207(a)(1) unless it is justified by a “legitimate
business purpose.” So long as the change is intended to be permanent, and it is
implemented in accordance with the FLSA,2 the employer’s reasons for adopting the
change are irrelevant. Accordingly, whether Redland in fact adopted the change in
question to achieve administrative efficiencies in calculating and paying wages and
overtime, and if so, whether that was a “legitimate business purpose” justifying the
change, were not genuine disputes of material fact that precluded the grant of
summary judgment in favor of Redland. Fed. R. Civ. P. 56(a).

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




      2
      For example, the regulations specify how to compute overtime when a
permanent change results in “overlapping” hours that fall within both the old and the
new workweeks. See 29 C.F.R. §§ 778.301-.302.

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