# Alexis M. Herman, Secretary of Labor, United States Department of Labor v. Fabri-Centers of America, Inc.

> Court of Appeals for the Sixth Circuit · October 17, 2002 · 308 F.3d 580

URL: https://www.frixlaw.com/law-library/cases/9495479

## Case

- **Full name:** Alexis M. HERMAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. FABRI-CENTERS OF AMERICA, INC., Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 17, 2002
- **Citations:** 308 F.3d 580; 8 Wage & Hour Cas.2d (BNA) 225; 2002 U.S. App. LEXIS 21632; 2002 WL 31317943
- **Precedential status:** Published
- **Opinion:** Dissent by Siler
- **Judges:** Siler, Clay, Williams
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495479

## How later opinions describe it (automated extraction)

- explaining that Congress "considered it unfair to require the inclusion of contractual premiums not required by the Act in the [regular rate], thereby making the employer pay `overtime on overtime'" and "fair to employers to give them a credit for certain contractual premiums …
- noting that the FLSA requires that overtime payments be timely made

## Opinion text

SILER, Circuit Judge,
dissenting.
I respectfully dissent, not because the majority opinion is illogical in its conclusion that the premium credits allowed by 29 U.S.C. § 207 (h)(2) should be limited to the same work period in which the premiums were paid, but because the statute does not so provide. I would not penalize the employer who computes its premium credits as allowed in this case.
The majority opinion has analyzed the case law on this point. Thus, an employer in Illinois is restricted to premium credits within the same work period in which the premiums were paid. See Howard v. City of Springfield, 274 F.3d 1141, 1149 (7th Cir.2001); Nolan v. City of Chicago, 125 F.Supp.2d 324, 331-33 (N.D.Ill.2000). On the other hand, a federal employer, a Georgia employer, or, previously, a Michigan employer, could receive premium credits over a greater period of time than the same work period. See Alexander v. United States, 32 F.3d 1571, 1577 (Fed.Cir.1994); Kohlheim v. Glynn County, 915 F.2d 1473, 1481 (11th Cir.1990); Abbey v. City of Jackson, 883 F.Supp. 181, 186-87 (E.D.Mich.1995). It is unfair for the Secretary of Labor to force an employer to pay the additional amount of $113, 313.63 when the statute does not so provide, no regulation has ever been promulgated on the subject, and employers in other states are allowed these premium credits. As Judge Manion states in his dissent in Howard, 274 F.3d at 1149 : “Neither the provisions of § 207(h)(2) of the FLSA, nor its accompanying regulations, require such a limitation.”
Both parties agree that FCA would be entitled to a credit of any premium pay. The issue is whether the premium pay credit is limited to the same time period. The Department of Labor has for more than ten years known that there was a dispute about the limitations of the premium credits, but it has chosen not to attempt to promulgate regulations which would have been given some deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844, 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). I agree with the majority that no deference should be given to the opin *594 ion letters from the Secretary. If the Secretary wishes for deference, she has the authority to promulgate regulations which can be given deference under Chevron. Therefore, for the same reasons related by Judge Feikens in Abbey , I would affirm the decision of the district court here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495479. Public record. Not legal advice.