concluding that a phot exercised discretion and judgment because, even though he was guided by an extensive procedural manual, he had discretion to act as appropriate in case of an in-flight emergency
How later courts described this case
- concluding that a phot exercised discretion and judgment because, even though he was guided by an extensive procedural manual, he had discretion to act as appropriate in case of an in-flight emergency
- affirming, inter alia, a district court's finding that a pilot’s time spent waiting to fly a plane was “necessarily incident” to the pilot’s time flying and, therefore, exempt from the FLSA's overtime provisions along with the pilot's flight time pursuant to the 29 U.S.C. § 213(a)(1) exemption of employees employed in a professional capacity
- noting the “threshold requirements for a commercial pilot certificate include proof In Volkswagen, this Court stressed the “control” of the that the applicant ... is able to read, speak, and understand German manufacturers in concluding that they were subject English”
- observing that a “no-action” letter “is not equivalent to an exemption”
Written by the judges who cited it.
The opinion
RANDALL, Circuit Judge,
dissenting:
Although I fully agree with the majority’s conclusion that a highly skilled and well paid company pilot such as Paul “do[es] not need the protection of overtime wage rates,” I am unable to discover anywhere in this case anything that would enable us to determine whether knowledge of the type that Paul theoretically has, by virtue of his certificates, is “customarily acquired by a prolonged course of specialized intellectual instruction and study.” 29 C.F.R. § 541 .-302(d) (emphasis added). I therefore respectfully dissent.
Since an employer must carry the burden of proving that an exemption applies, and since (as the majority concedes) PETCO has presented no evidence on the “customarily acquired” question, the majority has had to go to considerable lengths to fill in the gaps in the Company’s proof. What the majority has done is to show what a pilot with Paul’s FAA certificates must know to pass the requisite examinations; from the sophistication and complexity of that knowledge, the majority infers that it must necessarily be “customarily acquired by a prolonged course of specialized intellectual instruction and study.” If it were possible validly to draw this inference simply from the Code of Federal Regulations and the various test guides published by the FAA, the Wage and Hour Division would have done so by now. It has not. The Division has been willing for some years, as the majority points out, to take a “no action” position with respect to certain highly paid pilots, but it has never exempted those pilots. Indeed, it has consistently declined to do so. A “no action” letter from an enforcement agency is simply not the same thing as a general exemption. The result of today’s decision, however, will be to establish just such a general exemption.
The record in this case is deficient. We have no idea how most commercial, instrument-rated pilots acquire their training; nor do we know how Paul acquired his. I would therefore reverse.