Davis v. Huff Ambulance Service, Inc. , 44 N.C. App. 177 ( 1979 )

WELLS, Judge.

Defendants first assign as error the trial court’s finding that when plaintiff was first employed by defendants the understanding between the parties was that plaintiff would work a regular shift and a forty-hour week. While the trial court, consistent with the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1938), could have found that plaintiff had contracted to work an “irregular” workshift or weekly hours in excess of forty, 29 C.F.R. § 778.114 (1968), he was not required to do so here. Plaintiff testified, “When I took the job, I thought I would be working 40 hours in 8 hour shifts.” Despite defendant Huff’s evidence to the contrary, this statement is a sufficient basis for the trial court’s conclusion that the employment contract between plaintiff and defendants contemplated a “regular” eight-hour workshift and forty-hour workweek. Henderson County v. Osteen, 297 N.C. 113, 254 S.E. 2d 160 (1979).

Defendants also assign as error the trial court’s finding with respect to the number of overtime hours worked by plaintiff, plaintiff’s regular and overtime rates of pay, and the total overtime wages due plaintiff. The parties concede that the Fair Labor Standards Act governs defendants’ liability, if any, for overtime wages. Pursuant to 29 U.S.C. § 207:

(a)(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

Since the trial court properly concluded that the employment contract between plaintiff and defendants was for a regular workweek of forty hours, the trial court’s conclusion that defendant’s regular rate under the Act was $3.12 per hour and overtime rate was $4.68 must be sustained. The term “regular rate” is not defined in the Act. Where, as found by the trial court in the present case, the parties have agreed that the employee is to work a regular forty-hour week at a specified weekly salary, the regular hourly rate is determined by dividing that salary by forty hours, and the amount of overtime is determined by multiplying that hourly wage by one and one-half as to each hour worked in excess of forty. Transportation Co. v. Missel, 316 U.S. 572, 86 L.Ed. 1682, 62 S.Ct. 1216 (1942), reh. denied, 317 U.S. 706, 87 L.Ed. 563, 63 S.Ct. 76 (1942); Marshall v. Shirt Corp., 577 F. 2d 444 (8th Cir. 1978).

The trial court concluded that plaintiff worked seventy-two hours one week and ninety-six hours the next week on an alternating basis. Since the parties agree that under the Act, nine hours of each twenty-four hour shift were allotted to sleeping and eating and were not compensable, plaintiff had alternating com-pensable hours of employement of forty-five and sixty hours per week. Thus, plaintiff accumulated overtime of five hours one week and twenty hours the following week throughout his employment with defendants. The trial court correctly calculated defendants’ liability to plaintiff for overtime pay in the amount of $1,637.

Affirmed.

Judges Arnold and Webb concur.