The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN KENNEDY; ANDREW No. 23-15311
SNIDER; CHRISTOPHER WARD;
RONALD WILLIAMSON; D.C. No.
RANDALL WESTON, 2:17-cv-00880-
APG-VCF
Plaintiffs-Appellants,
v. OPINION
LAS VEGAS SANDS
CORPORATION; SANDS
AVIATION, LLC,
Defendants-Appellees,
and
LAS VEGAS SANDS, LLC;
INTERFACE OPERATIONS, LLC,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted March 6, 2024
Las Vegas, Nevada
2 KENNEDY V. LAS VEGAS SANDS CORPORATION
Filed August 1, 2024
Before: MILAN D. SMITH, JR., MARK J. BENNETT,
and DANIEL P. COLLINS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Daniel P. Collins
SUMMARY *
Labor Law
The panel affirmed the district court’s judgment, after a
bench trial, in favor of the defendants in an action brought
under the Fair Labor Standards Act by five corporate jet
pilots.
In Section I, the panel held that the pilots qualified as
highly compensated employees exempt from the Act’s
overtime requirements, 29 U.S.C. § 207, because they made
over $100,000 per year and performed primarily non-manual
labor. They also customarily and regularly made
discretionary decisions over matters of significance, a duty
performed by bona fide administrative, executive, or
professional employees.
In Section II, the panel held that the time the pilots spent
waiting for a request to fly did not constitute work mandating
overtime pay because they could and did freely engage in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KENNEDY V. LAS VEGAS SANDS CORPORATION 3
personal activities during this time, and therefore they did
not work more than 40 hours per week.
Concurring in part and concurring in the judgment,
Judge Collins wrote that, even assuming arguendo that the
majority was incorrect in concluding that the pilots qualified
as having been employed in a bona fide executive,
administrative, or professional capacity, their claims still
failed for the reasons stated in Section II of the court’s
opinion. Judge Collins therefore concurred in Section II and
in the judgment.
COUNSEL
Andre M. Lagomarsino (argued), Lagomarsino Law Offices,
Henderson, Nevada; Jamie S. Cogburn, J. Cogburn Law,
Henderson, Nevada; for Plaintiffs-Appellants.
Brian S. Kaplan (argued), DLA Piper LLP (US), New York,
New York; Mary C. Dollarhide and Khesraw Karmand,
DLA Piper LLP (US), San Diego, California; Molly M.
Rezac, Ogletree Deakins Nash Smoak & Stewart PC, Reno,
Nevada; for Defendants-Appellees.
4 KENNEDY V. LAS VEGAS SANDS CORPORATION
OPINION
M. SMITH, Circuit Judge:
Five corporate jet pilots appeal the district court’s
judgment holding that the pilots are exempt from the Fair
Labor Standards Act’s (the FLSA) overtime pay
requirements, 29 U.S.C. § 207, and, in the alternative, that
the pilots do not meet the 40-hour-per-week threshold to
qualify for overtime pay. This appeal presents two
questions: (1) whether corporate jet pilots are exempt from
the FLSA as highly compensated, non-manual laborers, and
(2) whether the time that corporate jet pilots spend waiting
for a request to fly constitutes work. Because we answer the
first question in the affirmative and the second in the
negative, we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Sean Kennedy, Andrew Snider, Christopher Ward,
Randall Weston, and Ronald Williamson (collectively, the
Pilots) worked as full-time corporate jet pilots for their joint
employer, Sands Aviation, LLC and Las Vegas Sands Corp.
(collectively, Sands). The Pilots flew Sands’ customers and
high-level executives and family members on Sands’ planes.
Sands paid the Pilots between $125,000 and $160,000
annually.
When each Pilot served as a Pilot-in-Command (PIC), he
had ultimate decision-making authority on that flight and
retained responsibility for the safety of that aircraft’s
passengers, crew, and property. The Pilots “regularly had to
interpret flight data, analyze weight and balance
requirements, assess the airworthiness of their planes, [and]
make final decisions regarding the operation of the aircraft.”
KENNEDY V. LAS VEGAS SANDS CORPORATION 5
The Pilots had “absolute authority and accountability to
operate, delay, divert, or cancel a flight as circumstances
dictated.” Sands also hired a separate Chief Pilot, not a
plaintiff in this lawsuit, who “managed the [P]ilots and
oversaw the safety and operational procedures the [P]ilots
were required to follow.” Although the Chief Pilot set
procedures and regulations for the company, the Pilots could
deviate from those procedures at their complete discretion
during emergency conditions.
If Sands did not schedule a Pilot to fly in advance, it
required him to be available to fly in the event of a pop-up
flight, typically scheduled around 24 hours prior to
departure. In the “rare event” of an immediate pop-up flight
notification, Pilots were required to arrive at the hangar one
hour prior to takeoff time. Sands notified the Pilots of these
pop-up flights via email or text on their company cell phones
and required them to respond to the flight notification and
confirm their availability within 30 minutes.
The Pilots had days off each month, could call in sick,
and could take vacation time. If the Pilots were “on call”
(i.e., did not have the day off), they could still “reject flights
for various reasons, usually due to illness.” When no full-
time Pilot could fly, Sands engaged contract pilots who filled
in on a day-to-day basis.
While on call, the Pilots engaged in various personal
activities during non-flight time, including eating at
restaurants, watching movies, attending fitness classes,
maintaining their homes and vehicles, and shopping. Sands
routinely accepted time-off requests to engage in personal
activities that would restrict the Pilots’ ability to respond to
emails within a reasonable time, including yoga classes,
doctor appointments, and dental visits. Some Pilots also
6 KENNEDY V. LAS VEGAS SANDS CORPORATION
maintained secondary employment, including flying for
other companies or driving for ride-share services.
The Pilots and Sands had no written or oral agreement
that Sands would provide specific compensation to the Pilots
for time spent on call. At the time of hiring, Sands advised
the Pilots of this compensation and schedule structure. The
Pilots voluntarily accepted their employment and continued
to work for Sands for several years under this arrangement.
The Pilots brought suit against Sands under the FLSA,
seeking overtime pay for the time they spent on call between
flight assignments, claiming that Sands misclassified them
as exempt employees. The Pilots sought between
$1,000,000 and $1,500,000 in overtime pay over a three-year
period, nearly 10 times their annual salaries, plus liquidated
damages.
After an eight-day bench trial, the district court ordered
judgment in favor of Sands. It found the facts outlined above
and held first that the Pilots qualified as highly compensated,
exempt employees under the FLSA because they made over
$100,000 per year, performed primarily non-manual labor,
and customarily and regularly made discretionary decisions
with respect to matters of significance. Second, the district
court held that, even if they were not exempt, the Pilots’
waiting time between flight assignments did not constitute
“work” mandating overtime pay under the FLSA because the
Pilots could and did freely engage in personal activities.
This timely appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction to hear this case
pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant
to 28 U.S.C. § 1291. We “review the district court’s findings
KENNEDY V. LAS VEGAS SANDS CORPORATION 7
of fact for clear error and its interpretation of the FLSA de
novo.” Berry v. Cnty. of Sonoma, 30 F.3d 1174, 1180 (9th
Cir. 1994).
ANALYSIS
I. The FLSA exempts the Pilots from its overtime
pay requirements.
The FLSA guarantees that covered employees receive
overtime pay when they work more than 40 hours per week.
29 U.S.C. § 207(a); Helix Energy Sols. Grp., Inc. v. Hewitt,
598 U.S. 39, 43 (2023). An employee is not covered under
the FLSA overtime rules if he or she earns “total annual
compensation of at least $100,000” 1 and “customarily and
regularly performs” any one of the many “exempt duties or
responsibilities of an executive, administrative or
professional employee.” 29 C.F.R. § 541.601(a)(1); Helix,
598 U.S. at 45. A “high level of compensation is a strong
indicator of an employee’s exempt status” and “eliminate[s]
the need for a detailed analysis of the employee’s job
duties.” 29 C.F.R. § 541.601(c). The exemption also applies
“only to employees whose primary duty includes performing
office or non-manual work.” Id. § 541.601(d).
Here, the parties agree that the Pilots earned between
$125,000 and $160,000 annually and thus easily clear the
$100,000 compensation threshold. However, the Pilots
argue that the district court erred in concluding that they
(1) performed primarily non-manual labor and
(2) customarily and regularly made discretionary decisions
of significance. We address each argument in turn.
1
This amount increased since the period relevant to this case, as correctly
noted by the district court.
8 KENNEDY V. LAS VEGAS SANDS CORPORATION
A. The Pilots primarily performed non-manual
labor.
Department of Labor regulations define employees who
primarily perform manual work as including:
non-management production-line workers
and non-management employees in
maintenance, construction and similar
occupations such as carpenters, electricians,
mechanics, plumbers, iron workers,
craftsmen, operating engineers,
longshoremen, construction workers,
laborers and other employees who perform
work involving repetitive operations with
their hands, physical skill and energy . . . no
matter how highly paid they might be.
Id. The regulations also define the term “primary duty” to
mean “the principal, main, major or most important duty that
the employee performs.” 29 C.F.R. § 541.700(a). The
regulations refer to non-exhaustive factors to consider in
determining whether non-manual labor constitutes an
employee’s primary duty, including: “the relative
importance of the exempt duties as compared with other
types of duties; the amount of time spent performing exempt
work; the employee’s relative freedom from direct
supervision; and the relationship between the employee’s
salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee.” Id.
The Pilots argue that they primarily performed manual
labor because they performed “physically[] demanding tasks
in connection with their jobs,” repetitively used their hands
to operate the airplanes, and received training via
KENNEDY V. LAS VEGAS SANDS CORPORATION 9
apprenticeship and on-the-job training instead of via formal
education.
The district court held that the Pilots’ primary duty was
the “safe transport of their passengers,” and that “[a]lthough
[the Pilots] used their hands and feet to fly the plane, their
judgment, aviation acumen, and decision-making skills were
far more important to the job of safely piloting a plane.” We
agree.
At trial, the Pilots testified that “[s]afe flight operations
are always the priority,” and that safety is their “most
important” job and “primary function.” The district court
found that the decisions and actions that the Pilots used to
safely fly the airplane included:
overseeing selection of the route to take . . . ;
inspecting the logbook and plane and
determining whether the plane was
airworthy; confirming the plane’s center of
gravity and that the weight was balanced;
operating the plane’s controls throughout the
trip . . . ; analyzing and responding to
problems and emergencies that arose, such as
engine failure, wind shear, bird strikes, pre-
flight and inflight de-icing, lightning strikes,
contaminated runways, aircraft fires, in-flight
illness and injury, and many other scenarios;
reacting to changing weather conditions
during the flight; identifying and deciding
whether to land at an alternate airport; and
10 KENNEDY V. LAS VEGAS SANDS CORPORATION
inspecting the plane post-flight and reporting
any incidents or problems.
While some of these tasks require physical movement, many
of them do not. Instead, most of the tasks involve
complicated decision-making processes, which include
applying highly specialized knowledge and directing both
the second-in-command pilot, the flight attendants, and any
passengers on board.
Because of the complex mental decision-making
required to safely operate an airplane, the Pilots are distinct
from the manual laborers enumerated in the regulations, like
construction workers, plumbers, or electricians. See 29
C.F.R. § 541.601(d). It is true that these manual laborers
also prioritize safety in performing their jobs. But
prioritizing safety in those contexts may only require
following simple steps, such as wearing a hard hat, turning
off a machine before repairing it, or cleaning up spills. The
Pilots, on the other hand, could face a litany of potentially
life-threatening scenarios each time they take off, many of
which require specialized training to address. They can face
catastrophic consequences if they do not respond to a
challenging situation by diagnosing and actively resolving a
problem. This distinction is underscored by the fact that the
Pilots, unlike construction workers, can turn the planes on
autopilot, engaging with their hands only if necessary to
address a safety issue.
The Pilots contend that the distinction between manual
and non-manual laborers should focus on apprenticeship and
on-the-job training, rather than on the complexity of the
employee’s work. We note at the outset that Sands required
the Pilots to engage in a high level of training, acquire air
transport pilot certifications, and maintain type ratings for
KENNEDY V. LAS VEGAS SANDS CORPORATION 11
the jets they fly. In addition, Sands required training that
educated the pilots on responding to situations which do not
involve primarily physical responses, such as aircraft fires,
ground evacuations, ditching an aircraft, crewmember
incapacitation, hijacking, fatigue and stress management,
thunderstorm avoidance, and more. A manual laborer likely
need not engage in the same level of training, particularly
related to topics unrelated to physical labor.
Although the level of training required to perform a job
is an important factor to consider, we disagree that the
regulations draw a sharp line between formal education and
on-the-job training. For example, the language of 29 C.F.R.
§ 541.601(d) distinguishes between non-management and
management employees. A non-management production
line worker would qualify as a manual laborer under
subsection (d), whereas a management-level production line
worker would not. Subsection (d) does not distinguish
between management and non-management workers by
level of education. Instead, the distinction between the two
depends on the mental complexity of the task performed and
the amount of physical labor required. While retention of an
advanced degree may be a sufficient condition to prove that
work is non-manual, it is not a necessary condition.
The Pilots also refer us to a Department of Labor
Opinion Letter, stating that “helicopter pilots . . . are not
exempt administrative employees because their primary
duty is piloting a helicopter, which does not qualify as
‘office or non-manual’ work.” DOL Opinion Letter
FLSA2018-3. Interpretations “contained in formats such as
opinion letters are entitled to respect under . . . Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent
that those interpretations have the power to persuade.”
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)
12 KENNEDY V. LAS VEGAS SANDS CORPORATION
(cleaned up); Bugielski v. AT&T Servs., Inc., 76 F.4th 894,
902 n.3 (9th Cir. 2023). The letter does not include any
explanation for its decision and thus does not persuade us.
See DOL Opinion Letter FLSA2018-3. Because the Pilots
primarily engaged in complex decision-making focused on
ensuring the safety of the passengers, crew, and airplane, we
hold that they were primarily non-manual laborers.
B. The Pilots customarily and regularly made
significant discretionary decisions.
Because the Pilots made over $100,000, they need
perform only one of many of the duties performed by bona
fide administrative, executive, or professional employees to
be exempt from the FLSA’s overtime provisions. 29 C.F.R.
§ 541.601(a). Because the Pilots “exercise [] discretion and
independent judgment with respect to matters of
significance,” 29 C.F.R. § 541.200, the FLSA’s overtime
provisions do not apply to them.
As the district court reasoned and as we explained above,
the Pilots used discretion to exercise “judgment, aviation
acumen, and decision-making skills” in flying airplanes.
Although the Pilots argue that discretionary decisions
happened only irregularly (in the event of an emergency),
they regularly and customarily make discretionary decisions,
even absent emergency conditions. For example, they create
flight plans, which detail the altitude for the flight, route to
be taken, and amount of fuel required, ensure the fuel levels
balance safety with economy, confirm all safety systems
work properly, brief the cabin crew before the flight and
maintain regular contact throughout the flight, and react
quickly and appropriately to environmental changes.
Moreover, the Pilots actively monitor the flights’ conditions
to act in case of emergency on every flight.
KENNEDY V. LAS VEGAS SANDS CORPORATION 13
The Pilots assert that the use of established procedures
and checklists make their decisions non-discretionary.
Department of Labor regulations specifically state that the
use of manuals, guidelines or other
established procedures containing or relating
to highly technical, scientific, legal, financial
or other similarly complex matters that can be
understood or interpreted only by those with
advanced or specialized knowledge or skills
does not preclude exemption under section
13(a)(1) of the Act or the regulations in this
part.
29 C.F.R. § 541.704.
The checklists and established procedures do not strip
the Pilots of discretion. The procedures require the Pilots to
make discretionary decisions and use their extensive
specialized knowledge to decide which course of action is
appropriate in any given situation. Although the checklists
remind the Pilots of what to do in response to various
external conditions, they must be able to respond to certain
emergency situations without reference to any checklist.
Some procedures contain highly specific instructions, while
others explicitly leave actions up to the Pilots’ discretion.
For example, when the aircraft, passengers, or crew are “in
jeopardy,” the Pilots are instructed to “remember three
things. FLY THE AIRCRAFT – Maintain aircraft control.
RECOGNIZE CHALLENGE – Analyze the situation.
RESPOND – Take appropriation action.” 2 The Pilots thus
2
As another example, the “Smoke in Baggage Compartment” section of
the Pilots’ Quick Reference Handbook states that “consideration should
be given to descending to 20,000 ft.” Even though the instruction
14 KENNEDY V. LAS VEGAS SANDS CORPORATION
have discretion to respond to external stimuli, must
determine which checklist applies, and, if multiple problems
occur at once, must make discretionary decisions about what
course of action to take. See also 14 C.F.R. § 91.3(a) (“The
pilot in command of an aircraft is directly responsible for,
and is the final authority as to, the operation of that
aircraft.”). Pilots may also deviate from the checklists to the
extent necessary to respond to an emergency. Id. § 91.3(b).
These decisions are thus “free from immediate direction or
supervision.” 29 C.F.R. § 541.202(c).
The Pilots argue that their decisions do not involve
matters of significance because they do not relate to the
operation of the business. They point to the fact that Sands
hired a Chief Pilot, who “managed the [P]ilots and oversaw
the safety and operational procedures the [P]ilots were
required to follow.” The term “matters of significance”
refers to “the level of importance or consequence of the work
performed.” Id. § 541.202(a). One additional factor to
consider in deciding whether the Pilots have discretion to
make decisions over matters of significance is “whether the
employee has authority to waive or deviate from established
policies and procedures without prior approval.” Id.
§ 541.202(b). Although the Chief Pilot may establish
general policies and procedures for the PICs to follow, the
Pilots still maintain “absolute authority and accountability
for decisions to operate, delay, divert, or cancel a flight, as
circumstances dictate.” The Pilots testified that they
individually made decisions about routes, fuel, flight plan,
and decisions to refuse to take off or land if “something
contains specific details about a possible course of action, it does not
mandate that the Pilot take that action without independent
consideration.
KENNEDY V. LAS VEGAS SANDS CORPORATION 15
looked amiss.” They could also reject flights, crews, and
planes based on safety concerns. Thus, while the Chief Pilot
certainly made discretionary decisions over matters of
significance, the Pilots had authority to override or deviate
from those very decisions at their complete discretion. Once
the cabin doors closed, the Pilots had complete control over
the plane’s operation. These decisions involved “matters of
significance.”
The Pilots attempt to bolster their argument by citing
Bothell v. Phase Metrics, Inc., 299 F.3d 1120 (9th Cir.
2002), but that case is easily distinguishable. There, we held
that there were genuine issues of material dispute about
whether an employee was permitted to make discretionary
decisions of significance where his supervisor made “all but
the smallest decisions.” Id. at 1129. Here, as previously
explained, the Pilots maintained unilateral and final
authority in operating and managing the aircraft and need not
ask permission to make any decision while preparing or
engaging in flight. 3
We hold that the Pilots made discretionary decisions
over matters of significance, thus exempting them from the
FLSA’s overtime requirements.
II. The Pilots do not meet the FLSA’s hour
requirement to receive overtime pay.
Even if the Pilots did not qualify as exempt employees
under the FLSA, the statute would still not entitle them to
overtime pay because they did not work more than 40 hours
3
McKeen-Chaplin v. Provident Sav. Bank, FSB, 862 F.3d 847 (9th Cir.
2017), also does not control because it did not reach the question of
whether mortgage underwriters exercised discretion and independent
judgment. Id. at 849 n.1.
16 KENNEDY V. LAS VEGAS SANDS CORPORATION
per week. As described above, the FLSA requires employers
to pay an employee “not less than one and one-half times the
regular rate at which he is employed” for “a workweek
longer than forty hours.” 29 U.S.C. § 207(a)(1).
The Pilots claim that they worked more than 40 hours
per week because the time they spent on call waiting for a
flight assignment constituted time worked. Because the
Pilots assert that they spent 24 hours per day, seven days per
week on call, they argue that they worked well over 40 hours
per week. Sands argues that the time spent on call does not
constitute time worked, and instead, proffers that the
evidence showed that the Pilots only performed between 5.4
to 7.2 hours of direct flight-related work per week.
To determine whether time spent on call but not actually
flying aircraft or preparing to fly aircraft constitutes time
working for purposes of overtime pay, we consider two
predominant factors: “(1) the degree to which the employee
is free to engage in personal activities; and (2) [an]
agreement[] between the parties” suggesting the time
waiting was compensable. Owens v. Loc. No. 169, Ass’n of
W. Pulp and Paper Workers, 971 F.2d 347, 350 (9th Cir.
1992) (footnote omitted); see Berry, 30 F.3d at 1181–82.
The Pilots’ on-call time does not constitute compensable
work because, although Sands paid them without regard to
whether the Pilots flew during a particular time period, the
on-call time was virtually indistinguishable from free
personal time, and the parties’ agreement did not suggest that
on-call time was compensable.
KENNEDY V. LAS VEGAS SANDS CORPORATION 17
A. The Pilots regularly used their on-call time
for personal activities.
To determine “the degree to which [an] employee is free
to engage in personal activities,” we look to “whether [an
employee] is so restricted during on-call hours as to be
effectively engaged to wait.” Owens, 971 F.2d at 350, 354.
To make that determination we consider seven non-
exhaustive factors, including:
(1) whether there was an on-premises living
requirement; (2) whether there were
excessive geographical restrictions on
employee’s movements; (3) whether the
frequency of calls was unduly restrictive;
(4) whether a fixed time limit for response
was unduly restrictive; (5) whether the on-
call employee could easily trade on-call
responsibilities; (6) whether use of a pager
could ease restrictions; and (7) whether the
employee had actually engaged in personal
activities during call-in time.
Id. at 351 (footnotes omitted). An employee “need not ‘have
substantially the same flexibility or freedom as he would if
not on call, else all or almost all on-call time would be
working time, a proposition that the settled case law and the
administrative guidelines clearly reject.’” Brigham v.
Eugene Water & Elec. Bd., 357 F.3d 931, 936 (9th Cir. 2004)
(quoting Owens, 971 F.2d at 350–51). Based on a review of
these factors, the Pilots were not engaged to wait and,
instead, could freely use their on-call time for their personal
benefit and enjoyment.
18 KENNEDY V. LAS VEGAS SANDS CORPORATION
First, Sands did not require the Pilots to live on or in
close proximity to the hangar, so long as the Pilots could
arrive one hour prior to the flight time. Cf. id. (noting that
an employer requirement that employees live on the
company’s premises favored employees’ argument). This
factor weighs against finding that the Pilots’ on-call time
constituted time worked.
Second, although Sands placed no formal geographical
restriction on the Pilots, they did need to remain within an
hour’s travel from the hangar in the rare event of an
immediate flight. Thus, a functional geographic restriction
controlled the Pilots’ movements. Whether this restriction
was “excessive” is less clear. Owens, 971 F.2d at 351. Even
assuming, without deciding, that this factor weighs in favor
of holding that the Pilots’ on-call time constituted time
worked, it does not tip the scale.
Third, “the frequency of calls” was not “unduly
restrictive.” Id. at 351. The Pilots received flight
notifications via email or text message. In Berry, we held
that call notifications every four to eight hours were
insufficient to outweigh the other Owens factors. 30 F.3d at
1186. Although the Pilots generally supervised their email
accounts, they received requests far less frequently than
every four to eight hours. In fact, the Pilots rarely received
a request for a same-day flight. This factor weighs against
finding that the on-call time constituted time worked. See
Brigham, 357 F.3d at 936 (explaining that receiving requests
to work once or twice a month weighed in favor of
employers).
Fourth, the fixed time limit to respond to a request to fly
was not unduly restrictive. Sands required the Pilots to
respond to an email request within 30 minutes. In Berry, we
KENNEDY V. LAS VEGAS SANDS CORPORATION 19
concluded that a “required response by telephone or two-
way radio within fifteen minutes is not a factor prohibiting
the [employee’s] personal pursuits.” 30 F.3d at 1184. The
same is true here. Requiring that an employee respond to an
email within 30 minutes does not unduly restrict the Pilots’
personal pursuits, particularly where Sands would routinely
grant time-off requests (without deducting flex or vacation
time) when the Pilots notified Sands that a 30-minute
response time would be unpracticable.
The fifth factor, whether an employee could easily trade
on-call responsibilities, also weighs against the Pilots.
Although the evidence in the record does not support a
finding that the Pilots literally traded responsibilities with
one another, the Pilots could simply communicate to Sands
that they were sick or otherwise unavailable. In the event
that any Pilot were unavailable, the scheduler merely moved
down to the next pilot on the list. There is no evidence in
the record that any Pilot faced significant repercussions for
being unavailable.
The sixth factor, whether the use of a pager could ease
restrictions, also weighs against finding time worked.
Obviously, today’s technological landscape renders pagers
obsolete. We interpret this factor, instead, to ask whether
technology allows an employee to move freely and
communicate with his or her employer without being
tethered to a physical location. See Berry, 30 F.3d at 1184
(“By being able to use a pager, the [employees] are not
restricted to areas with a telephone or two-way radio.”). The
Pilots could still engage in personal activities away from
their homes or the hangar so long as they monitored their
email accounts and text messages. And if their activities,
such as hiking, drinking alcohol, or attending fitness classes,
made monitoring their work phones impossible, they could
20 KENNEDY V. LAS VEGAS SANDS CORPORATION
notify the scheduler of their unavailability without using flex
or vacation time. This factor thus weighs against finding
time worked.
Seventh and most importantly, Sands presented fulsome
evidence at trial that the Pilots enjoyed personal pursuits that
made their on-call time virtually indistinguishable from an
average person’s free time. They dined at restaurants,
patroned the movie theater, exercised at the gym, attended
fitness classes, shopped, and spent time with their families
and friends. Evidence at trial even showed that most
engaged in secondary employment. See Berry, 30 F.3d at
1185 (“[T]he ability of [the employees] to maintain
secondary employment while on-call undermines the
[employees’] position that they are unable to actually pursue
personal activities.”).
This is not a case where the Owens factors are “closely
divided.” Brigham, 357 F.3d at 936. Nearly every factor
weighs against finding that the Pilots’ on-call time
constituted time worked. We therefore hold that the Pilots
could freely engage in personal pursuits and were not
“engaged to wait.” Owens, 971 F.2d at 354.
The Pilots, nonetheless, argue that because Sands did not
inform them of a definitive hour at which their work
commenced in advance, Sands never relieved the Pilots from
duty. The Pilots cite Section 785.16, which recites the
Department of Labor’s general view that for an employee to
be considered off duty, he must be “definitely told in
advance that he may leave the job and that he will not have
to commence work until a definitely specified hour has
arrived.” 29 C.F.R. § 785.16(a). The Pilots’
characterization of this regulation would eviscerate the
Owens test, as any on-call worker would be considered
KENNEDY V. LAS VEGAS SANDS CORPORATION 21
constantly working, regardless of the extent to which they
could utilize their on-call time for their personal endeavors.
Although Sands did not always specify a definitive hour in
advance, pop-up flights were rare, and the Pilots were free
to use the time between flights at their complete discretion.
Thus, the elapsed time was “long enough to enable [the
Pilot] to use the time effectively for his own purposes” based
on “all of the facts and circumstances of the case,” as
analyzed above. 29 C.F.R. § 785.16(a).
B. The agreement between the parties did not
suggest that on-call time was compensable.
A constructive agreement to not pay employees overtime
pay for certain activities may arise “if employees have been
informed of the overtime compensation policy and continue
to work under the disclosed terms of the policy.” Brigham,
357 F.3d at 938 (quoting Berry, 30 F.3d at 1180). The
character of the agreement assists the district court in
determining whether the parties characterized the on-call
time as time worked. Berry, 30 F.3d at 1180–81. For
example, “[a]n agreement between the parties which
provides at least some type of compensation for on-call
waiting time may suggest the parties characterize waiting
time as work.” Id. at 1181. On the other hand, “an
agreement pursuant to which the employees are to be paid
only for time spent actually working, and not merely waiting
to work, may suggest the parties do not characterize waiting
time as work.” Id.
The district court’s factual findings on this issue were not
clearly erroneous. It found that there was no evidence in the
record of an agreement to pay the Pilots for on-call time.
Sands paid the Pilots on an annualized salary basis. The
Pilots, according to the district court’s findings, had no
22 KENNEDY V. LAS VEGAS SANDS CORPORATION
expectation of additional compensation regardless of the
hours worked or not worked per week, that they were
advised of the compensation and work structure prior to
accepting employment, and that they worked for Sands for
several years under that agreement. These findings are
amply supported by the record. These facts suggest that the
Pilots and Sands did not characterize the on-call time as time
worked.
The Pilots claim that because they were paid regardless
of how much they flew, the agreement of the parties
indicated that they were paid for their on-call time. This
argument makes little sense. Sands paid the Pilots on an
annualized salary basis. It is typical for workers paid on an
annualized-salary basis to receive compensation without
regard to how much or little they work. Such a
characterization does not independently evince an intent of
the parties to pay the Pilots for their time spent on call. And
even if the Pilots were correct that Sands intended to
compensate them for time spent on call, the character of the
parties’ agreement “is not intended to suggest that
agreements are controlling regardless of the character of the
uncompensated time at issue.” Id. The Owens factors, as
described above, heavily weigh in favor of holding that the
Pilots were waiting to engage, not engaged to wait.
The Pilots refer us to Leever v. Carson City, 360 F.3d
1014 (9th Cir. 2004), but that case is inapposite. First, the
plaintiff in Leever was not an on-call employee. Id. at 1016.
And second, the parties there explicitly characterized the
time worked as overtime work but disagreed about how to
compensate the employee for such work. Id. This is not
such a case. The parties here sharply dispute whether the
time spent on-call constitutes work.
KENNEDY V. LAS VEGAS SANDS CORPORATION 23
Because the Pilots’ on-call time does not constitute
“work,” they did not prove that they worked over 40 hours
per week. 4 Thus, they are not entitled to overtime pay, even
if the FLSA did not exempt them as highly compensated
employees.
CONCLUSION
For the foregoing reasons, the district court’s judgment
is AFFIRMED.
COLLINS, Circuit Judge, concurring in part and concurring
in the judgment:
I am not sure that the majority is correct in concluding
that the private jet pilots who are the Plaintiffs in this case
count as having been “employed in a bona fide executive,
administrative, or professional capacity” with the
permissible limits of that phrase. 29 U.S.C. § 213(a)(1). But
I need not resolve that question because, even assuming
arguendo that the majority is wrong on that score and that
Plaintiffs’ positions therefore were not exempted from the
overtime provisions of the Fair Labor Standards Act,
Plaintiffs’ claims still fail for the reasons stated in Section II
of the court’s opinion. I therefore concur in Section II of the
court’s opinion and in the court’s judgment.
4
The Pilots also argue that the time they spent waiting between flight
segments away from Las Vegas constitutes hours worked. Because they
did not make this argument below, it is waived. Yamada v. Nobel Biocare
Holding AG, 825 F.3d 536, 543 (9th Cir. 2016) (“Generally, an appellate
court will not hear an issue raised for the first time on appeal.”).