On March 8, 2018, Tatyana Litvinova filed a putative collective-action complaint against the City and County of San Francisco alleging that the City violated the Fair Labor Standards Act by not paying staff nurses time-and-a-half for overtime work, including per diem shifts. Litvinova v. City and County of San Francisco, No. 3:18-cv-1494-RS (N.D. Cal.). She moved to certify a collective action under 29 U.S.C. § 216(b), and the district court granted the motion.

On October 22, 2020, Kristen Silloway, Christa Duran, and Brigitta van Ewijk filed a similar complaint on behalf of themselves and “similarly situated dual-status registered nurses.” Silloway v. City and County of San Francisco, No. 3:20-cv-7400-RS (N.D. Cal.). Given the factual similarity between the two cases, the district court issued an order treating them as related. Between the two separate collective actions, a total of about 353 plaintiffs opted in.

On cross-motions for summary judgment, the district court granted summary judgment in favor of the City, concluding that the staff nurses were paid on a “salary basis” and therefore exempt from the FLSA overtime requirements. Litvinova v. City and County of San Francisco, 615 F. Supp. 3d 1061, 1069 (N.D. Cal. 2022). The district court treated the published salary ordinance, which referred to staff nurses as salaried employees, as “dispositive evidence” that the nurses were compensated on a salary basis. The district court found the nurses’ hourly pay rates to be a mere “accounting fiction” used for administrative purposes, and it rejected plaintiffs’ allegations of improper pay deductions by finding that the City’s expert report provided adequate explanations for those discrepancies.

Silloway timely appealed the district court’s decision. Litvinova filed a Motion for Reconsideration under Federal Rules of Civil Procedure 59 and 60 and then, after it was denied, timely appealed as well.

The United States Court of Appeals for the 9th Circuit consolidated the two appeals for argument and decision. It reversed the grant of the summary judgment motion in favor of the City in the published case of Kristen Silloway, et.al. v City and County of San Francisco  22-16079 (September 2024).

The City of San Francisco employs staff nurses in its hospitals, jails, and clinics. Many work more than 40 hours in a week. The Fair Labor Standards Act provides that employees should generally receive time-and-a-half pay for working overtime, but one of the Act’s exemptions from that requirement applies to employees working in a bona fide professional capacity. The City claims that staff nurses fall into that exemption. The plaintiffs disagree.

The 9th Circuit concluded that the district court erred in granting summary judgment to the City. The salary ordinance, which the district court found to be dispositive evidence that the staff nurses were paid on a salary basis, is neither the starting point nor the ending point for that inquiry. Rather, the salary basis test asks whether an employee actually receives a predetermined amount of compensation on a weekly or less frequent basis as a matter of practice. In this case, the parties dispute several factual issues that are material to answering that question.

The most significant is whether staff nurses are guaranteed the opportunity to work the hours corresponding to their full-time equivalency every week. According to an expert report submitted by the City itself, the City recorded staff nurses as working or being credited for fewer hours than their full-time equivalencies in at least 72 employee pay periods out of more than 2,200 reviewed.

Because staff nurses are paid according to the number of hours they are recorded as working or otherwise credited, it is uncertain whether staff nurses received their predetermined amounts of compensation during these irregular pay periods.

Additionally, the FLSA’s “actual practice” and “window of correction” provisions offer the City no refuge, at least on summary judgment. Assuming that the 72 abnormal pay periods represent improper deductions – as must be done in reviewing a grant of summary judgment against the plaintiffs – the City made improper deductions much more frequently than in cases where courts have found that no “actual practice” existed.

Questions about the propriety of these 72 deductions leave material factual issues in dispute as to whether the City maintained an “actual practice” of making improper deductions. As for the “window of correction” defense, the City has not provided evidence showing that the staff nurses were reimbursed for any of these possibly improper deductions, so summary judgment cannot be granted or affirmed on that ground, either.

The panel reversed the district court’s summary judgment for the City and County of San Francisco, and remanded, in both cases.

9th Circuit Reverses Wage Dispute Judgment Against 353 S.F. City Nurses