Rodriguez v. City of Albuquerque (687 F. Supp. 2d 1270, 2009)

United States District Court for the District of New Mexico 2009-12-04

Labor

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendant’s Motion for Summary Judgment, filed September 4, 2009 (Doc. 69); and the Plaintiffs’ Motion for Summary Judgment and Memorandum in Support, filed September 5, 2009 (Doc. 73). The Court held a hearing on October 21, 2009. The primary issues are: (i) whether, in calculating the “regular rate” of pay for city employees, a concept found in 29 U.S.C. § 207(e), Defendant City of Albuquerque properly divides the total remuneration by the number of hours actually worked by the employee, or whether it should instead use the number of hours in a normal workweek under the applicable collective bargaining agreement (“CBA”); (ii) whether the City’s method of calculating the pay for all hours then adding one-half the regular rate for each hour of overtime worked is appropriate, or whether the City must calculate pay for the first forty hours and then calculate overtime at one and one-half times the regular rate for each hour that the employee worked that week beyond forty; (iii) whether the City is correct in excluding from the regular-rate calculation monies paid as buy-back for unused vacation time and sick leave; (iv) whether the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 to 219, automatically incorporates the employee-friendly elements of the underlying employment agreement or, rather, whether overtime under the FLSA and under the employment contract can be determined independently from one another; (v) whether the City improperly grants certain credits against its overtime liability under the FLSA; (vi) whether the Court should award the Plaintiffs additional liquidated damages; and (vii) whether the Court should allow the Plaintiffs to take advantage of the extended three-year statute of limitations because the City’s conduct was willful. After considering the stipulated facts, evidence, briefs, and arguments at hearing, the Court has concluded: (i) the proper divisor in the regular-rate equation is the number of hours in a normal, non-overtime workweek, when the parties agree to such number in the employment contract; (ii) because the use of a 0.5 multiplier is not what makes the City’s method of calculation improper, the Court will find for the City on this issue; (iii) buy-back monies are remunerations within the meaning of the FLSA and properly included in the regular-rate calculation; (iv) the City’s dual-calculation method of determining a city employee’s overtime compensation would be proper if it correctly calculated overtime under the FLSA; (v) the Court finds that the City properly grants appropriate credits against its FLSA overtime liability; (vi) the Court will award some liquidated damages to the Plaintiffs; and (vii) the Court finds that the Plaintiffs have failed to prove that the City’s violation of the FLSA was willful, and so the Court will apply the two-year statute of limitations in this case. In sum, the Court will grant the Plaintiffs’ motion in part and deny it in part, and grant the City’s motion in part and deny it in part.

STIPULATED FACTS

The parties stipulate to the following material facts, see Stipulated Facts, filed July 28, 2009 (Doc. 67), to be taken into evidence without further proof. The Court recites word for word, without any change to conform to the Court’s style, either in the wording of the stipulation or in the citations, unless indicated otherwise. In addition, the City put forth additional facts that the Court will consider after it sets forth the stipulations.

1. Parties.

1. Plaintiffs in this case allege they are present and former City employees entitled to have them overtime wages calculated in accordance with the provisions of the Fair Labor Standards Act (FLSA) and the applicable collective bargaining agreements.

2. Over 200 individual Plaintiffs, including four named Plaintiffs, have opted in and have been certified as members of this collective action.

3. Defendant the City of Albuquerque (“City”) is a municipality and public employer.

II. Procedural Background.

A. This Litigation

4. On September 12, 2007, Plaintiffs Lawrence Rodriguez, Steven J. Duran, Rosemary Neal, Jason Brown, and Greg Miera, on behalf of themselves and other present and former City employees, filed a Complaint for collective action under 29 U.S.C. § 216(b) (“Section 216(b)”) of the FLSA.

5. They allege that the City has not paid certain employees the overtime wages to which they are entitled under the FLSA.

6. Specifically, Plaintiffs allege that they have a right of recovery under the FLSA, 29 U.S.C. § 207(a)(1), for unpaid overtime wages owed to them for hours worked in excess of their normal 40-hour or other regular work week or period.

7. They allege that the City has failed to include all the properly applicable “other compensation” in calculating the “regular rate of pay” of some of its employees, with the result that these employees receive less overtime pay than required by the FLSA.

8. The City calculates the “regular rate of pay” based on the number of hours worked by employees, including overtime hours, rather than by the number of hours in the employees’ normal work week; Plaintiffs disagree with this calculation.

9. The City uses a one-half multiplier in calculating the additional over-time pay due; Plaintiffs believe a one-and-one-half multiplier should be used.

10. In addition, they allege that in many cases, the City is incorrectly taking “credits” or “offsets” against overtime pay for holiday, sick time, or other pay which is provided in a union agreement or which is otherwise properly not creditable or chargeable against overtime pay under the provisions of the FLSA.

11. The City has denied any violation of the FLSA.

12. Discovery closed on October 27, 2008. However, neither party has taken any discovery in this case.

13. On November 6, 2008, the City moved for summary judgment on the basis of res judicata or collateral estoppel arguing that the issues in this litigation had already been decided in another case before this court, Chavez v. City of Albuquerque, No. CIV 02-562 JCH/ACT (D.N.M.) (“Chavez ”). The Court denied the City’s Motion on December 22, 2008, 2008 WL 5978925.

14. On April 8, 2009, Plaintiffs moved for collective action certification. On July 15,2009, the Court granted Plaintiffs’ motion, allowing the case to proceed as a collective action.

15. On July 17, 2009, the Court vacated the bench trial scheduled from August 10-12, 2009. It ordered that the Parties submit a statement of stipulated facts and it set a briefing and hearing schedule for motions for summary judgment.

III. City’s Rules and Ordinances.

16. The City’s Merit System Ordinance, § 3-1-11, provides that “Overtime may be paid by the city for work performed outside of established work hours in accordance with the Fair Labor Standards Act.”

17. The City’s Personnel Rule 302.2 provides that “when overtime is required for nonexempt employees, compensation must be in accordance with the Fair Labor Standards Act (FLSA) and any applicable collective bargaining agreement.”

IV. Collective Bargaining Agreement Provisions.

18. Almost all classified City employees are represented by labor unions and covered by collective bargaining agreements (“CBAs”) negotiated between the unions and the City. These CBAs establish various terms and conditions of employment. Some of the terms and conditions of employment in the CBAs exceed the overtime requirements of the FLSA.

19. For example, the following overtime payments are provided under the CBAs, but are not required under the FLSA:

(a) Overtime pay for work beyond the regular schedule.

(b) Overtime pay for working on a holiday.

(c) Overtime pay for off-shift court appearances for police officers.

(d) Overtime pay caused by counting hours of paid, unworked leave such as sick leave or vacation leave time as hours worked. The CBAs provide compensation for such leave time such as holidays, vacation time and sick leave time. If employees perform work on holidays, they receive premium compensation under their respective union contracts.

20. The normal work week of most City employees is set out in their CBAs. The normal work week for all employees except firefighters is 40 hours per week, consisting of five eight-hour days or four ten-hour days.

A. Albuquerque Police Officers’ Association Contract

21. The contract between the Albuquerque Police Officers’ Association (“APOA”) and the City (... Exhibit 1) provides, under a caption titled, “General Workday Provisions,” that the “normal workday shall be eight (8) or ten (10) hours.” Under a caption titled, “General Work Week Provisions,” it provides that the “normal workweek will be forty (40) hours comprised of either five (5) eight-hour or four (4) ten-hour days.” Under a caption titled “Overtime,” the contract also provides that “[e]mployees shall be entitled to overtime compensation at the rate of time-and-one-half their regular straight-time rate when they perform work in excess of forty (40) hours in any one workweek” and that “for the purpose of computing overtime, paid leave shall be considered time worked, as per Section 2.5 (FLSA).”

22. The contract between the APOA and the City further states, under a separate caption titled, “Fair Labor Standards Act”:

Under the Fair Labor Standards Act (FLSA), paid leave is not considered time worked for the purpose of computing overtime and the regular rate for the purpose of computing overtime includes all remunerations.

The parties thereto agree that for the purpose of computing overtime, paid leave will be considered time worked and the regular rate includes the hourly rate with no other remunerations included. Under 7K of the FLSA, the parties agree that for the purpose of computing overtime, the pay schedule will be a 7 consecutive-day, 40-hour workweek. Applications of the FLSA as it pertains to the exempt status of positions will not change from current practice.

Exhibit 1 (emphasis in original).

23. The contract between the APOA and the City provides for the sale back to the City of excess vacation and sick leave at the end of the year. Specifically, the contract provides that “[a]ll excess vacation accruals will be paid to the employee as monetary compensation at the end of the calendar year on an hour for hour basis.” The contracts further provide that “[a]ny sick leave accrued over the maximum [of 2000 hours] will automatically be converted to hazardous duty leave at the rate of two days of sick leave for one day of hazardous duty leave.” See Exhibit 1.

B. AFSCME Local 624 Contract

24. The contract between the City and AFSCME, Local 624 (... Exhibit 2), covering all permanent non-probationary B-series employees whose job code begins with a 1, 2, or 3, performing work classified in the 1, 2, or 3 job codes (i.e., certain blue collar employees), provides that “[a]n employee’s workweek shall consist of forty (40) hours per week, eight (8) hours per day, five (5) consecutive days per week or ten (10) hours per day, four (4) days per week.” The contract states that “[e]mployees shall be paid at the rate of time and one-half (1-1/2) for all hours worked in excess of 40 hours per week.... For the purpose of computing overtime, paid leave will be considered time worked.” This provision falls under a caption titled “Overtime.” The contract provides that “[e]mployees who have accumulated over one year vacation may convert 50% of the accumulation over one year to a cash payment once per year.” Sick leave may also periodically be converted to a cash payment. See Exhibit 2.

C. Albuquerque Area Fire Fighters Union Contract

25. The contract between the Albuquerque Area Fire Fighters Union and the City (... Exhibit 3), covering all sworn, permanent, non-probationary safety sensitive fire fighters through the rank of commander, provides that work schedules for the Fire Department will consist of (a) a “56-hour work week cycle consisting of two consecutive 24-hour shifts and four days off,” (b) a “42-hour work week cycle of two 10-hour shifts, two 14-hour shifts and four days off,” or (c) a “40-hour work week cycle [consisting of] 4 10-hour shifts.” The contract provides, that “[o]vertime worked shall be paid at time and one-half the regular rate of pay. All hours worked in excess of the employee’s regular assigned shift will be compensated at the overtime rate of time and one half the regular rate of pay.” In addition, “[t]ime spent in leave with pay status shall be considered time worked for purposes of computing overtime.” See Exhibit 3.

26.The contract between the City and the Albuquerque Area Fire Fighters Union provides that if a fire fighter has accumulated sufficient vacation or sick leave (at the end of the year for sick leave and once per calendar year for vacation leave), that employee can sell his or her leave back to the City. Specifically, the CBA provides that Fire Department employees “who have accumulated over two years vacations [sic] may convert up to six (6) days over the two-year accumulation to cash payment once per calendar year.” With respect to sick leave, the CBA provides that employees on a 56-hour workweek may sell back their leave as follows: “[f]or sick leave hours accumulated over 700 hours the employee may convert any or all such hours on the basis of 3 hours of sick leave for one hour’s pay.... For hours accumulated over 1008 hours on the basis of 2 hours of sick leave for one hour’s pay.... For hours accumulated over 1400 hours on the basis of 3 hours of sick leave for 2 hour’s pay.” The contract further provides that employees on a 40-hour workweek may sell back their leave as follows: “[f]or sick leave hours accumulated over 500 hours the employee may convert any or all such hours on the basis of 3 hours of sick leave for one hour’s pay.... For hours accumulated over 720 hours on the basis of 2 hours of sick leave for one hour’s pay.... For hours accumulated over 1000 hours on the basis of 3 hours of sick leave for 2 hour’s pay.” The contract provides that employees on a 42-hour workweek may convert their leave as follows: “For sick leave hours accumulated over 525 hours the employee may convert any or all such hours on the basis of 3 hours of sick leave for one hour’s pay.... For hours accumulated over 756 hours on the basis of 2 hours of sick leave for one hour’s pay.... For hours accumulated over 1050 hours on the basis of 3 hours of sick leave for 2 hour’s pay.” See Exhibit 3.

D. AFSCME Local 3022 Contract

27. The contract between the City and AFSCME, Local 3022 (... Exhibit 4), covering all MT, MJ, and ML employees and eligible part-time M-series employees (i.e., certain white collar employees), provides that, “FLSA non-exempt employee[s] shall have a workweek of forty (40) hours per week, eight (8) hours or ten (10) hours per day.”

28. The contract between the City and AFSCME, Local 3022, provides, under a caption titled “Overtime,” that “when overtime is required for non-exempt employees, compensation must be in accordance with the Fair Labor Standards Act (FLSA) and this Agreement. Paid time will be considered hours worked for purposes of calculating overtime.” See Exhibit 4.

29. The contract between the City and AFSCME, Local 3022 also provides that employees may sell back their sick leave. Specifically, employees who have “reached the specified accumulation levels” may convert sick leave to cash “in November of each year.” See Exhibit 4.

E. AFSCME Local 1888 Contract

30. The contract between the City and AFSCME, Local 1888 (... Exhibit 5), covering all non-probationary Department of Municipal Development Security Officers, Animal Services Officers, APD Transport Officers, and Transit Security Officers, provides, that “an Employee’s normal work week shall be forty (40) hours per week, eight (8) hours per day, five (5) consecutive days, of eight (8) consecutive hours per week, except for employees presently working ten (10) hours per day, four (4) consecutive days of ten (10) consecutive hours per week.”

31. The contract between the City and AFSCME, Local 1888, provides, under a caption titled “Overtime,” that “[f]or the purpose of computing overtime, paid leave will be considered time worked.” The contract provides that “leave with pay is available for the following reasons: vacation, sickness, injury, emergencies, City business, jury duty, voting, annual military services and education and leave with pay taken in conjunction with the F.M.L.A. policy.” With respect to holidays, the Local 1888 contract states that:

[ejmployees shall receive holiday pay at straight time at their hourly rate of pay for eight (8) hours, for all holidays not worked. In the event that an Employee is required to work on a holiday and does not exercise an option to take a floating holiday, the employee shall be paid holiday pay at the rate mentioned above plus time and one half for all hours worked.

See Exhibit 5.

32. Under the contract between the City and AFSCME, Local 1888, unused sick leave may be sold back to the City. See Exhibit 5.

F.AFSCME Local 2962 Contract

33. The contract between the City and AFSCME, Local 2962 (... Exhibit 6), covering non-probationary C-Series employees (i.e., clerical and technical employees), states, under a caption titled “Overtime,” that “[ejmployees shall be paid at the rate of time and one-half (1-1/2) for all hours worked in excess of forty (40) hours per week” and that “[f]or the purpose of computing overtime, paid leave will be considered time worked.” The contract also states that “[e]mployees required to work on holidays will be paid regular holiday pay plus time and one-half (1-1/2) for the hours actually worked.”

34. Under the contract with Local 2962, employees “who have reached the specified accumulation levels” may convert sick leave to “cash payment.” See Exhibit 6.

G. New Mexico Transportation Union Contract

35. The contract between the City and the New Mexico Transportation Union (... Exhibit 7), covering full-time permanent non-probationary employees holding the job position of Motor Coach Operators (MCO) and Sun Van Chauffeur (SVC), states under a caption titled “Overtime,” that driver-employees “will be paid at the rate of time and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours per week.” Although the contracts do not contain a general provision indicating that for purposes of computing overtime, paid leave will be considered time worked, the City’s practice for many years has been to include hours of paid leave as time worked.

H. AFSCME Local 624 Transit Union Contract

36. The contract between the City and AFSCME Local 624 Transit Union (... Exhibit 8), covering full-time permanent, non-probationary Motor Coach Operators (MCOs) and Sun Van Chauffeurs (SVCs) employed by the Albuquerque Transit Department, states under a caption titled “Overtime,” that “MCO Operators, Extra Board Operators and SVCs will be paid at the rate of time and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours per week.”

37. The contract provides that if “the unscheduled extra board protector is called in to work and no work is available when he/she reports to work, the employee will be guaranteed at least two (2) hours work.” See Exhibit 8.

38. It also provides that “[t]ime during which an employee is off work as a result of uncertified personal sick leave shall not be included in the calculation for overtime eligibility.” See Exhibit 8.

39. The contract provides that an employee “who has accumulated over two (2) years vacation may convert fifty percent (50%) of the accumulation over two (2) years to a cash payment once a year.” See Exhibit 8.

40. The City pays “time and one-half’ for all hours worked on the day the City observes certain holidays. See Exhibit 8.

41. The contract provides, under a caption titled “Call Back” that “All operators who have completed their assignments and are called back to work or are asked to work additional hours with a break of thirty (30) minutes, will be paid for a minimum of two (2) hours at straight time rate, or at one and one-half their normal hourly rate for actual time worked, whichever is greater.” See Exhibit 8.

V. Contractual Remunerations.

42. In addition to regular and overtime pay, the CBAs require the City to pay certain employees additional types of pay, such as longevity, superlongevity, hazard, shift differential, assignment, fire certification, skill/assignment differential, bilingual, education, and firearms qualification (hereinafter referred to as “add-ons”), on a biweekly basis.

43. The CBAs do not require the City to include these add-ons in its calculation of the contractual overtime rate. In contrast, the FLSA requires inclusion of certain regularly-paid add-ons and non-diseretionary bonuses in the calculation of the statutory overtime rate.

44. Longevity pay is an extra amount of pay that the City regularly pays employees each pay period after a certain number of years of service as an incentive to encourage employees to continue their employment with the City. Longevity pay must be included in calculating the “regular rate” of pay under the FLSA.

45. The City regularly pays superlongevity pay each pay period to certain employees as another incentive to encourage continued employment. Superlongevity pay must be included in calculating the “regular rate” of pay under the FLSA.

46. The City regularly pays hazard pay to certain employees each pay period for performing hazardous duties. Officers assigned to hazardous classifications, such as pilots, bomb squad, aerial observer, and SWAT team, among others, also receive this type of hazard pay. Hazard pay must be included in calculating the “regular rate” of pay under the FLSA.

47. The City regularly pays shift differential pay each pay period to employees working shifts other than the day shift. Employees working swing shift, for example, regularly receive, while working that shift, a certain additional amount of pay, while employees working graveyard shift receive an even greater amount of shift differential pay while working that shift. Shift differential pay must be included in calculating the “regular rate” of pay under the FLSA.

48. The City regularly pays assignment differential pay (abbreviated on employee pay stubs as “assign pay”) every pay period to Fire Department employees who are certified paramedics through the rank of Captain. Likewise, the City pays employees of the Albuquerque Police Department “Special Skills Pay,” for officers who have specialties such as polygraph examiners, field training officers, or area sergeant coordinators in certain areas.

49. The City regularly pays assignment pay (abbreviated on employee pay stubs as “assignment pay”) each pay period to employees assigned to non-field positions with work weeks less than 56 hours. Assignment pay must be included in calculating the “regular rate” of pay under the FLSA.

50. The City regularly awards “fire certificate” pay each pay period to fire fighter employees who are wild land certified at the arduous level. Fire certification pay must be included in calculating the “regular rate” of pay under the FLSA.

51. The City regularly pays “skill pay” to employees who have special training, certification, or experience.

52. Under the terms of certain collective bargaining agreements, employees of the Albuquerque Police and Fire Departments are able to sell their sick leave and vacation pay back to the City. The City of Albuquerque does not include this buy back in the calculation of the employees’ overtime. When the City buys back excess leave, it simply gives its employees separate checks and does not include the buy back pay in their regular pay check. The payment therefore is not added to the pay stubs and is not included in calculating the “regular rate” under the FLSA. The City does not include this type of pay in its calculation of the “regular rate” under the FLSA.

VÍ. The City’s Payroll System.

53. The City of Albuquerque pays its employees through its Empath System. The pay stubs the City gives to employees with their pay represent summary totals of their payment amount for a bi-weekly period. The pay stubs do not include back-up calculations.

VII. Dual Calculation of Wages.

54. To determine the amount of wages owed to each employee during a given pay period, the City utilizes a dual method of pay calculation whereby it compares the employee’s wage entitlements under the applicable CBA to the employee’s wage entitlements under the FLSA. The City pays pursuant to whichever calculation yields the greater amount for the employee.

55. The City, through its Empath system, completes a dual calculation for each nonexempt employee for each pay period, with the exception of police officers employed by the Albuquerque Police Department.

56. Police officers are compensated solely pursuant to the terms of the applicable CBA. In other words, no FLSA calculation is made for police officers and no comparison between contractual and statutory compensation is made.

57. The CBAs are more generous than the FLSA in certain respects. The CBAs provide for the payment of certain overtime premiums that are not required by the FLSA. For example, certain CBAs require the payment of daily overtime and the payment of overtime on holidays. The CBAs also establish a 40-hour overtime threshold and require the City to count hours paid but not worked towards the 40-hour threshold. In contrast, the FLSA does not require employers to pay daily and holiday overtime, does allow employers to pay certain employees (police officers) overtime after 43 hours instead of 40, and does not contain an explicit provision requiring employers to count hours paid as hours worked.

58. The FLSA is more generous than the CBAs in certain respects. The FLSA requires payment for overtime hours based on the employees’ regular rate of pay. The Contracts, in contrast, do not require payment based on the regular rate of pay and thus do not include pay enhancements in the calculation of the overtime wage.

59. Contractual overtime is calculated at one and one-half times the employee’s base hourly rate. The employee’s base rate excludes add-ons (e.g., longevity pay, superlongevity pay, hazardous duty pay, etc.). In contrast, the FLSA requires the inclusion of certain regularly paid add-ons and nondiscretionary bonuses.

60. Once the City calculates the employee’s contractual overtime premium, the City determines whether the employee actually has worked the requisite hours during the workweek in question to be entitled to overtime pay under the FLSA. The City does not include hours paid but not actually worked in determining whether the employee’s hours exceed the statutory threshold. If an employee’s actual hours of work exceed 40 or if a fire protection and law enforcement employee’s ratio of the number of hours worked to the number of days in the work period exceeds the applicable standard under Section 207(k) of the FLSA, the City calculates the employee’s statutory overtime pay entitlement.

61. If the City determines that an employee is entitled to overtime pay under the FLSA, and further determines that the FLSA pay exceeds the contractual pay, the City pays the employee an FLSA adjustment representing the difference between the contractual pay and the FLSA pay. That adjustment is noted on the employee’s pay stub as “FLSA OT Adj.” If the pay stub does not contain this one-line FLSA overtime adjustment, then the Em-path system has determined that contractual pay exceeded statutory pay for that particular employee and the employee was therefore paid contractual pay. FLSA compensation is compared to contractual compensation and the employee is paid the greater amount of the two.

62. The City can obtain from its Em-path system sufficient payroll information to recalculate an employee’s FLSA pay. The Empath system can recall a certain amount of historical data showing the day-by-day times that each employee worked.

63. The City’s FLSA calculation provides payment under the FLSA whenever that amount exceeds payment under the CBA.

64. The City calculates contractual overtime under the terms of the CBA based upon the base rate and provides payment under the CBA whenever that amount exceeds pay under the FLSA.

VIII. Albuquerque Police Department Employees.

65. Under the FLSA (Section 7(k)) the City is not required to pay its police officers statutory overtime until after 43 hours.

66. In contrast, the contract between the City and the APOA calls for police officers to get overtime after 40 hours. The contract provides that “Employees shall be entitled to overtime compensation ... when they perform work in excess of forty (40) hours in any one workweek.” Merit Ordinance and Personnel Rules and Regulations, which are both part of the officers’ contract with the City, also call for police officer overtime after 40 hours. Accordingly, the City pays police officers contractual overtime after 40 hours.

67. The City does not perform a dual calculation for police officers. Because the City pays police officers overtime after 40 hours pursuant to their CBA, contractual overtime exceeds what the FLSA requires.

68. The Empath system does not include add-on pay such as longevity, hazard, or superlongevity pay, when it calculates police officers’ overtime rate. Since police officers are paid more than the FLSA wage, the Empath system need not include add-ons or other bonuses or conduct a comparison of statutory and contract wages.

69.The City periodically and informally monitors police officer contractual pay to make sure that it actually exceeds FLSA requirements.

ADDITIONAL FACTS

The City begins its Memorandum in Support of Summary Judgment by listing nine additional facts that, it alleges, are undisputed. See Defendant’s Memorandum in Support of its Motion for Summary Judgment at 5-7, filed September 4, 2009 (Doc. 70)(“City’s Memo.”). The relevant portions of those facts are set forth below as they appear in the City’s Memorandum — including footnotes- — unless otherwise indicated:

70. The issues raised in this case relative to calculation of overtime compensation by the City were adjudicated and ruled on in favor of the City following a trial in another case before this Court, Chavez v. City of Albuquerque, No. 02-0562 JH/ACT (D.N.M.X'Utevez ”).

71. Plaintiffs’ claims in Chavez were identical to those in this case....

72. Specifically, the Chavez Court granted summary judgment in favor of the City on the question of the proper divisor for calculating the regular rate of pay, the proper multiplier for calculating overtime, and the proper distribution of bonus pay. See Chavez docket 250 at 45-47.

73. Issues remaining in the Chavez case after the Court granted partial summary judgment were trial to the Court on September 10, 2007 in a one day bench trial before Judge Judith C. Herrera.

74. Laurice Chappell, the City’s acting payroll supervisor, was called at trial, both by the Chavez Plaintiffs and the City. Laurice Chappell Declaration, dated September — [sic], 2009 (“Chappell Decl.”) ¶ 3.

75. After the bench trial and issuing findings of fact and conclusions of law, the Chavez Court entered judgment for the City on: (1) the claim that the City does not properly include all bonuses and add-ons in the “regular rate” of pay; and (2) the claim that the City does not properly credit payments against its FLSA overtime liabilities. Chavez docket 278, 281.

76. The Chavez Court entered judgment for the Plaintiffs on the claim that the City fails to include vacation and sick leave buy-back proceeds in the calculation of the “regular rate” of pay under the FLSA.

77. On January 16, 2009, the City made an offer of judgment to Plaintiffs in this case. Docket 51. Plaintiffs did not accept the City’s offer of judgment. The offer of judgment would have more than satisfied Plaintiffs for any alleged damages stemming from the City’s failure to include vacation and sick leave buy-back proceeds in the calculation of the regular rate of pay.

78. The method that the City uses to calculate overtime pay is, in all relevant aspects, the same as it was during the relevant time period covered by the Chavez case. Chappell Decl. ¶ 3.

City’s Memo, at 5-7. The Plaintiffs have not contested any of these alleged facts.

PROCEDURAL BACKGROUND

On June 9, 2009 the Court held a hearing in which the parties suggested that the Court might be able to decide all material issues in this ease as a matter of law based on a set of stipulated facts. See Transcript of Hearing at 24:17-26:16 (taken June 9, 2009)(Court, Bregman)(“June 9 Tr.”); June 9 Tr. at 26:23-27:19 (Court, Bergmann); id. at 33:24-34:18 (Court, Bergmann); id. at 36:11-40:19 (Court, Bregman, Bergmann). On July 17, 2009, by minute order, the Court vacated the bench trial scheduled from August 10, 2009 to August 12, 2009. The Court ordered that, if the parties were able to agree on a statement of stipulated facts, the stipulation would be due on July 28, 2009. The Court further ordered that motions for summary judgment would be due on August 28, 2009; responses would be due on September 11, 2009; and replies would be due September 25, 2009.

The parties met the deadline for filing stipulated facts. The City, however, filed an unopposed motion to extend the deadlines for filing the parties’ motions for summary judgment on August 25, 2009. See Defendants’ Unopposed Motion to Extend Filing Deadlines of Dispositive Motions at 1, filed August 25, 2009 (Doc. 68). On September 4, 2009, the Court granted the City’s motion and set the new deadlines as: (i) September 4, 2009 for motions for summary judgment; (ii) September 22, 2009 for responses to motions for summary judgment; and (iii) October 6, 2009 for replies. See Order Granting Defendant’s Unopposed Motion to Extend Filing Deadlines of Dispositive Motions at 1, filed September 4, 2009 (Doc. 72). Both parties largely complied with these deadlines. See Defendant’s Motion for Summary Judgment; Plaintiffs’ Motion for Summary Judgment and Memorandum in Support; Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment, filed November 22, 2009 (Doc. 74)(“City’s Response”); Plaintiffs’ Response to City’s Motion for Summary Judgment, filed November 23, 2009 (Doc. 75)(“Plaintiffs’ Response”); Defendant’s Reply in Further Support of its Motion for Summary Judgment, filed October 6, 2009 (Doc. 77); Plaintiffs’ Reply to City’s Opposition to Plaintiffs’ Motion for Summary Judgment, filed October 7, 2009 (Doc. 78).

The parties’ positions can be summarized as follows: The Plaintiffs argue that, for several reasons, the City has been violating the Fair Labor Standards Act by failing to properly calculate the amount of overtime pay that it owes its employees. See Plaintiffs’ Motion at 1; Plaintiffs’ Response at 1-3. First, the Plaintiffs insist that the City miscalculates the “regular rate,” see 29 U.S.C. §§ 207(a)(1), (e), a necessary element in the calculation of the amount of overtime pay due a city employee under the FLSA, by dividing the total remuneration by the total hours worked— including overtime hours — rather than the number of hours in a normal, non-overtime work period. See Plaintiffs’ Motion at 4, 5-9; Plaintiffs’ Response at 8-12. They also insist that the City uses the wrong multiplier to calculate the overtime pay— 0.5 rather than 1.5. See Plaintiffs’ Motion at 4, 9-11; Plaintiffs’ Response at 12. As a result of these arithmetic and order-of-operations errors, the Plaintiffs argue, the City’s employees are being paid less overtime than the FLSA requires. See Plaintiffs’ Response at 14-15. Next, the Plaintiffs accuse the City of improperly making two calculations of overtime — one under the FLSA and one under the applicable CBA — and paying the employee the greater of the two. See Plaintiffs’ Motion at 4, 14-20; Plaintiffs’ Response at 3-8. Finally, the Plaintiffs also insists that the City incorrectly calculates the “regular rate” because it fails to include sick leave and vacation buy-back in its calculation, even though the CBAs that the City entered with each of the Plaintiffs’ Unions said that, for the purposes of calculating overtime pay, paid leave will be considered time worked. See Plaintiffs’ Motion at 4, 22; Plaintiffs’ Response at 3-4,17-19.

The City argues that the sole issue in this case is whether it pays its employees an amount of overtime that satisfies the requirements of the FLSA and asserts that its method of calculation ensures that the employees always receive at least as much overtime pay as they would receive under the FLSA’s terms. See City’s Response at 4, 8-10; Defendant’s Memorandum in Support of Its Motion for Summary Judgment at 12, filed September 4, 2009 (Doc. 70)(“City’s Memo.”). The City maintains that its mathematical formula for calculating overtime complies with the FLSA — both that it uses the proper divisor when calculating the “regular rate” and that it properly multiplies the overtime hours worked by a factor of 0.5, rather than 1.5. City’s Response at 2-7; City’s Memo at 12-15. The City next asserts that it includes all appropriate non-discretionary bonuses in its calculation of its employee’s overtime and that the Plaintiffs are trying to stack the overtime calculation of the CBAs on top of the overtime calculation in the FLSA, resulting in double-overtime. See City’s Memo, at 8-12. It further insists that the Plaintiffs’ public policy arguments are irrelevant. See City’s Response at 7-8. Next, the City argues that, because it made its overtime calculation in good faith, the Plaintiffs are not entitled to rely on the three-year statute of limitations, see 29 U.S.C. § 255(a); Brinkman v. Dep’t of Corr., 21 F.3d 370, 372 (10th Cir.1994)(“[T]he jury determined that defendant willfully violated the FLSA” because “plaintiffs could recover for only two years of violations unless defendant had acted willfully, in which case a three-year limitations period applied.”), and the Court should decline to award the Plaintiffs any additional amount as “liquidated damages,” 29 U.S.C. § 216(b). See City’s Memo, at 15-16. The City also asserts that, while it credits some employee overtime against its overtime liability under the FLSA, it does so only when and as the FLSA permits. See City’s Response at 10-13; City’s Memo, at 16-20. Finally, it argues that a prior decision from this District, Chavez v. City of Albuquerque, has analyzed all of the issues in this case, and that the Court should follow the reasoning in that case and find in favor of the City on all issues. See City’s Response at 13-14; City’s Memo, at 5-7, 20-22.

The Court scheduled a hearing regarding the motions for summary judgment for October 2, 2009. On October 2, 2009, the Plaintiffs filed an unopposed motion to continue the hearing to October 21, 2009. See Stipulated Motion for Continuance at 1, filed October 2, 2009 (Doc. 76). The Court granted that motion on October 17, 2009. See Order of Continuance, filed October 7, 2009 (Doc. 79). Thus, pursuant to that continuance, the Court held a hearing on these motions on October 21, 2009.

At the hearing, the Court first heard argument from Edward Bergmann, attorney for the City of Albuquerque. His arguments largely followed the flow of the City’s briefing. He insisted that the City’s “dual calculation method” — the process of calculating overtime under the FLSA and calculating it under the CBA, and giving the employee the greater amount — pays overtime in a manner that is fully compliant with the FLSA. See Transcript of Hearing at 3:17-4:5 (taken October 21, 2009)(Bergmann)(“Oct. 21 Tr.”). Mr. Bergmann then attempted to distinguish the case law that most strongly supported the Plaintiffs’ position. See Oct. 21 Tr. at 4:6-10:12 (Bergmann). He insisted that the Court should not look to case law dealing with the FLSA as it applies to salaried employees, because the case before the Court deals with employees that work at an hourly rate. See id. at 5:7-6:9 (Bergmann). Mr. Bergmann also argued against the Plaintiffs’ use of law from other states, often interpreting other laws, to support their position. See id. at 7:7-8:13 (Bergmann). Finally, he pointed to a split in the law on whether sale-back proceeds — money given by the employer to the employee when the employee “cashes in” unused vacation or sick-leave time— constitute remuneration and are properly included in the regular-rate calculation. Id. at 9:19-10:12 (Bergmann).

. Samuel Bregman, attorney for the Plaintiffs, started his argument by informing the Court that he expects the Court to be able to decide this case as a matter of law based on the stipulated facts. See id. at 10:21:25 (Bregman). He also largely repeated the arguments of his briefs: (i) that the dual-calculation model used by the City is inappropriate, and (ii) that the City does its FLSA calculation incorrectly. See Oct. 21 Tr. at 11:1-15:25 (Bregman). He added one important clarification. According to Mr. Bregman, the Plaintiffs’ concern is that the City is not permitted to calculate its overtime under only the CBA on one hand and only the FLSA on the other, and then pick the greater of the two. On the contrary, according to Mr. Bregman, the City must determine what is required under the CBAs, and then graft the FLSA’s requirements on top of what the CBAs already provide. See Oct. 21 Tr. at 11:9-13 (Bregman)(“What they have to do — and it’s our contention I believe Wheeler [v. Hampton Township, 399 F.3d 238 (3d Cir.2005) ] supports this — —is, once the two parties agree on what the terms of the collective bargaining agreement are, then they have to lay the FLSA on top of that and figure out what the correct overtime is.”). Under this theory, the Plaintiffs argue that the FLSA does not normally require paid, unworked time to be included in the regular-rate calculation, but it does in this case. The Plaintiffs insist that, because the CBAs in this case have a provision — or, in one instance, a common custom — under which paid leave must be consider time worked, the FLSA assimilates that CBA provision and makes it a requirement of the FLSA calculation. In other words, because the CBA requires paid leave to be considered time worked, so does the FLSA when considering whether the employer has paid the minimum mandatory overtime under the FLSA.

RELEVANT LAW REGARDING OVERTIME UNDER THE FAIR LABOR STANDARDS ACT

The FLSA “establishes minimum wage, overtime pay, child labor, and equal pay requirements that apply as provided in the Act.” 29 C.F.R. § 778.0. According to the FLSA’s statement of purpose, Congress enacted it “to correct and as rapidly as practicable to eliminate” “labor conditions detrimental to the maintenance of the minimal standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 102 (titled “Congressional finding and declaration of policy”). The Supreme Court of the United States has recognized a dual Congressional purpose behind the FLSA: “[T]he Congressional purpose in enacting Section 7(a) was twofold: (1) to spread employment by placing financial pressure on the employer through the overtime pay requirement!;] ... and (2) to compensate employees for the burden of a workweek in excess of the hours fixed in the Act.” Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 39, 65 S.Ct. 11, 89 L.Ed. 29 (1944).

The FLSA is implemented primarily by a series of statutes, see 29 U.S.C. §§ 201-219, and a series of interpretive bulletins, see 29 C.F.R. §§ 778.0-778.603. The bulletins are intended to “constitute the official interpretation of the Department of Labor with respect to the meaning and application of the maximum hours and overtime pay requirements contained in section 7 of the Act.” 29 C.F.R. § 778.1. The courts therefore give those interpretive bulletins deference when the interpretation of the statutory language proposed is a reasonable one. See Aaron v. City of Wichita, 54 F.3d 652, 655 (10th Cir.1995) (citing the interpretive bulletins as authority); Flores Hernandez v. 65 De Infanteria Thom McAn, Inc., 516 F.2d 1293, 1296 (1st Cir. 1975); Scott v. City of New York, 592 F.Supp.2d 475, 482 (S.D.N.Y.2008) (same); Cowan v. Treetop Enters., Inc., 163 F.Supp.2d 930, 938 (M.D.Tenn.2001) (same); Newmark v. Triangle Aluminum Indus., Inc., 2, 11 F.Supp. 480, 481 (N.D.Ga. 1967) (same). They are not, however, binding. See Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977) (“Legislative, or substantive, regulations ... have the force and effect of law.... By way of contrast, a court is not required to give effect to an interpretative regulation.”)(internal quotes and alterations omitted). But see O’Brien v. Town of Agawam, 350 F.3d 279, 287 n. 15 (1st Cir.2003)(noting that 778.114 is an interpretive regulation, but giving it specific binding effect because it “represents the Secretary of Labor’s implementation of the Supreme Court’s holding in Overnight Motor Transp. Co. v. Missel .... ”).

1. Overtime Calculations Under the FLSA.

This case is primarily concerned with the calculation of overtime wages for employees who the FLSA covers. The calculation of overtime under the FLSA is fairly involved. The general rule is set forth in section 7(a) of the Act. See 29 U.S.C. § 207(a)(1). The Act does not put a limit:

on the number of hours that an employee may work in any workweek, he may work as many hours a week as he and his employer see fit, [but, the employer must pay] the required overtime compensation ... for hours worked in excess of the maximum workweek prescribed by section 7(a) [of the Act].

29 C.F.R. § 778.102. The statute states:

Except as otherwise provided in this section, no employer shall employ any of his employees ... 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.

29 U.S.C. § 207(a)(l)(emphasis added). See 29 C.F.R. § 778.107 (“The general overtime pay standard in section 7(a) requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.”). The language of the statute demands that an employee receive one and one-half times the “regular rate” of pay for hours that he works in excess of forty in a given week. Id.

One important principle is that FLSA overtime is based on the number of hours worked in a particular workweek. “The Act does not ... require ... that an employee be paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest. If not more than the maximum hours prescribed in the Act are actually worked in the workweek, overtime pursuant to section 7(a) need not be paid.” 29 C.F.R. § 778.102. On the other hand, that the FLSA does not require that overtime be paid for those hours does not relieve an employer from paying overtime for them if the contract of employment demands them. See 29 C.F.R. § 778.102. For the purposes of calculating overtime under the FLSA, however, the only concern is whether the total hours worked in a given workweek are above or below the statutory requirement for overtime compensation. See 29 C.F.R. § 778.102.

A second important principle of calculating overtime under the FLSA is that the employee must receive overtime pay at a rate of no less than one and one-half times the “regular rate” for which the employee is employed. This regular-rate concept is of chief importance in this case. See Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945) (“The keystone of Section 7(a) [of the FLSA] is the regular rate of compensation.”). Almost sixty-five years ago, the Supreme Court described “the regular rate” as “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 424, 65 S.Ct. 1242. Since that time, Congress has amended the FLSA to include a description of regular rate, see 29 U.S.C. § 207(e) (“[T]he ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee,” with eight statutory exceptions), and the interpretive bulletins have incorporated the Supreme Court’s definition, see 29 C.F.R. § 778.108 (“The Supreme Court has described it as the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed — an ‘actual fact’ ”). Generally, the exceptions include overtime pay and compensation that is discretionary on the employer’s part. See 29 C.F.R. § 779.108.

2. Calculating the Regular Rate Without a Regular Workweek.

In Walling v. Youngerman-Reynolds Hardwood Co., the Supreme Court determined the regular rate — which is always to be calculated as an hourly rate, see Aaron v. City of Wichita, 54 F.3d 652, 655 (10th Cir.1995); 29 C.F.R. § 778.109 — for lumber workers that were being paid a certain amount per board-foot of lumber that they “ricked” or “stacked.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 422, 65 S.Ct. 1242. The Supreme Court held that, when dealing with “piece work,” i.e., work wherein the employee is paid per unit produced, one calculates the regular rate by taking the “quotient of the amount received during the week divided by the number of hours worked.” Id. at 424, 65 S.Ct. 1242. See id. at 423, 65 S.Ct. 1242 (finding the average hourly rate is $0.59/hr.). “The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Id. at 424, 65 S.Ct. 1242.

The day before trial, the employer-defendant sought to execute a contract declaring $0.35 per hour to be the “regular rate of pay” for the first forty hours per week. See id. at 422, 65 S.Ct. 1242. The Supreme Court was not persuaded:

[The regular rate] is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary “regular rate” in the wage contracts.

Id. at 424-25, 65 S.Ct. 1242. Thus, the Supreme Court found that the “59-cent figure [was] the average regular rate at which the stackers [were] employed.” Id. at 425, 65 S.Ct. 1242. It was clear, however, that the regular rate could not be averaged across multiple employees. “The individual regular rate which must be used depends, of course, upon the number of hours worked and the wages received by each stacker during the particular workweek in question.” Id.

Since Walling v. Youngerman-Reynolds Hardwood Co., the United States Department of Labor has promulgated an interpretive bulletin regarding how to calculate the “regular rate.” That bulletin states, in relevant part:

The “regular rate” of pay under the Act cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee; it must be drawn from what happens under the employment contract. The Supreme Court has described it as the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed — an “actual fact.” Section 7(e) of the Act requires inclusion in the “regular rate” of “all remuneration for employment paid to, or on behalf of, the employee” except payments specifically excluded by paragraphs (1) through (7) of that subsection.... As stated by the Supreme Court in the [Walling v.] Youngerman-Reynolds [Hardwood Co.] case cited above: “Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary, ‘regular rate’ in the wage contracts.”

29 C.F.R. § 778.108. The CFR gives examples of how this number is calculated for an employee that works for an hourly rate of pay. See 29 C.F.R. § 778.110. The examples are as follows:

(a) Earnings at hourly rate exclusively. If the employee is employed solely on the basis of a single hourly rate, the hourly rate is his “regular rate.” For his overtime work he must be paid, in addition to his straight time hourly earnings, a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of 40 in the week. Thus a $6 hourly rate will bring, for an employee who works 46 hours, a total weekly wage of $294 (46 hours at $6 plus 6 at $3). In other words, the employee is entitled to be paid an amount equal to $6 an hour for 40 hours and $9 an hour for the 6 hours of overtime, or a total of $294.

(b) Hourly rate and bonus. If the employee receives, in addition to his earnings at the hourly rate, a production bonus of $9.20, the regular hourly rate of pay is $6.20 an hour (46 hours at $6 yields $276; the addition of the $9.20 bonus makes a total of $285.20; this total divided by 46 hours yields a rate of $6.20). The employee is then entitled to be paid a total wage of $303.80 for 46 hours (46 hours at $6.20 plus 6 hours at $3.10, or 40 hours at $6.20 plus 6 hours at $9.30).

29 C.F.R. § 778.110. As these examples suggest, the “regular rate” is what an hourly employee makes for each hour that he or she works. If the contract indicates that the worker is to work forty hours per week for a wage of $6.00 per hour, then the regular rate is easily calculated as the regularly paid hourly rate — $6.00 per hour. That is “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Walling v. Youngennan-Reynolds Hardwood Co., 325 U.S. at 424, 65 S.Ct. 1242. When a regular bonus is throw into the mix, the calculation becomes more complicated. Though the employee is scheduled to work forty hours in the week, and purports to receive $6.00 per hour, the employee receives more than $6.00 per hour when the bonus is considered.

The regular rate is calculated by dividing the amount of compensation received in a regular workweek by the number of hours that the pay is intended to compensate. The calculation attempts to spread the bonus over the number of hours regularly worked to create an hourly rate that reflects the true value of the employees’ work to the employer. As another example, when the employer contracts to pay the employee $15.00 per hour, and requires the employee to work a forty-hour workweek, the employer expects to pay $600.00 for each week of work that the employee gives. At this point, it appears that the employer values the employee’s labor at $15.00 for each hour. If the employer then agrees to give the employee a regular weekly “bonus” of an additional $50.00 — because the employee is particularly skilled, has been particularly loyal, or any other reason — the employer values a week of the employee’s labor at $650.00. The principle behind the “regular rate” is that calculating overtime pay based only upon the $600.00 hourly rate undervalues the employee’s overtime labor. The employer is indicating that each hour of the employee’s time is worth more than $15.00 or the employer would be content to pay the employee only the $600.00 per week of work. If the employer concludes that it must pay $650.00 for each week of the employee’s labor — $600.00 from hourly wages and the weekly $50.00 bonus — the employer values one hour of the employee’s labor at $16.25 ($650.00 divided by the forty hours in the employee’s workweek), and not $15.00. That $16.25 is the “regular rate” for which the employee works, see 29 C.F.R. § 778.110, or the “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed,” Walling v. YoungermanReynolds Hardwood Co., 325 U.S. at 424, 65 S.Ct. 1242 (emphasis added). When the employee works more than those forty hours in a given week, therefore, the employer must pay overtime at a rate of one and one-half times the regular rate — i.e. one and one-half times the value at which the employer holds the employee’s work.

ANALYSIS

This ease involves the interplay between CBAs and the FLSA. The disagreement centers on how the City calculates overtime wages for its employees. The parties’ disagreements span the entire process of the overtime calculation. The Court will begin by analyzing the basic calculation of overtime under the FLSA and then discuss the Plaintiffs’ contentions that the parties can add additional requirements to the FLSA through their own independent employment contracts.

I. THE CITY IS NOT PROPERLY CALCULATING WAGES AND OVERTIME UNDER THE FLSA,

The parties dispute almost every element in the equation that calculates the wages and overtime of a city employee under the FLSA. The Court finds that, as to some issues, the Plaintiffs have the better argument, and as to others, the City should prevail. The Court will therefore grant in part and deny in part both parties’ motions.

A. THE REGULAR RATE IS THE HOURLY RATE PAID FOR THE NORMAL, NON-OVERTIME WORKWEEK.

A large portion of the dispute between the parties centers on the concept of the regular rate. This term is somewhat slippery concept that means very little out of context. Simply stated, the “regular rate” is the baseline from which one calculates overtime pay under the FLSA. The Supreme Court has described the regular rate as “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed,” and the “quotient of the amount received during the week divided by the number of hours worked.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 424, 65 S.Ct. 1242. “The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Id. at 424, 65 S.Ct. 1242.

The “regular rate” is a concept born of statutory language. Section 207 of Title 29 of the United States Code defines the minimum overtime that an employer must pay its employee by reference to the “the regular rate at which he is employed.” E.g., 29 U.S.C. § 207(a)(1). The Court begins by looking at the plain language of the statute, including the meaning and context of the words used. See United States v. Albert Inv. Co., 585 F.3d 1386, 1394 (10th Cir.2009) (“As we always do in cases requiring statutory construction, we begin with the plain language of the law.”)(quoting United Keetoowah Band of Cherokee Indians of Okla. v. U.S. Dep’t of Hous. & Urban Dev., 567 F.3d 1235, 1241 (10th Cir.2009)). The statute does not, however, provide a definition of the term that answers the questions presented, see 29 U.S.C. § 207(e)(“[T]he ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee [with several exceptions].”), and the Supreme Court and the United States Court of Appeals for the Tenth Circuit have spoken as to its meaning. The Court will thus not attempt to construe the meaning of the term from the statute alone. Nevertheless, the Court must be mindful to arrive at an interpretation that is consistent with the plain language and structure of the FLSA.

B. THE DIVISOR DILEMMA: REGULAR RATE IS CALCULATED BY DIVIDING TOTAL REMUNERATION — MINUS CERTAIN EXCLUSIONS — BY THE NUMBER OF HOURS IN THE ORDINARY WORKWEEK.

The Plaintiffs insist that the City improperly uses the number of hours actually worked during the workweek as the denominat