Full opinion text
MEMORANDUM AND ORDER DAVID L. PIESTER, United States Magistrate Judge. This action came on for trial before the court on March 15, 16 and 17 of 1989 with the undersigned Magistrate presiding by consent of the parties pursuant to 28 U.S.C. 636(c). (Filing 23). Plaintiffs filed this action seeking recovery of unpaid wages, overtime compensation, liquidated damages and attorney’s fees pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereafter FLSA). The uncontroverted facts as agreed to by the parties are as follows: The plaintiffs are former or present employees of the County of Lancaster, Nebraska. The defendant is a political subdivision of the State of Nebraska and is an employer as that term is defined by the FLSA at 29 U.S.C. § 203 and the plaintiffs were at all times as set forth herein employees within the definition of that same section. It is uncontroverted that the defendant, at all times relevant to the suit, was an employer engaged in commerce or in the production of goods for commerce, or employment in an “enterprise” so engaged such that the “maximum hours” provision of the FLSA, 29 U.S.C. § 207, is applicable to this defendant. During the relevant time period of this suit, as set forth below, the plaintiffs were employed as Human Service Instruction Assistants (hereafter HSIAs) at residential facilities for the “care and supervision” of mentally retarded clients, such facilities being operated by the Lancaster County Office of Mental Retardation, a department of Lancaster County (hereafter the defendant). Plaintiff Lisa A. Hultgren was employed as an HSIA I from November 19, 1981 through October 19, 1988. Hultgren’s salary, based on an hourly rate, was as follows: Nov. 19, 1981 to Dec. 18, 1985 — $5.80 per hour Dec. 19, 1985 to Aug. 27, 1986 — $6,072 per hour Aug. 28, 1986 to Dec. 17, 1986 — $6,248 per hour Dec. 18, 1986 to Sep. 2, 1987 — $6,528 per hour Sep. 3, 1987 to Oct. 19, 1988 — $6,724 per hour Plaintiff Victoria M. Smith has been employed by the defendant as an HSIA since January 14, 1980 and continued to be employed in that capacity as of the time of trial. For the time period relevant to this suit Smith’s salary, based on an hourly rate, was as follows: Aug. 29, 1985 to Aug. 27, 1986 — $6,344 per hour Aug. 28, 1986 to Sep. 2, 1987 — $6,528 per hour Sep. 3, 1987 to present — $6,724 per hour The uncontroverted facts set forth in the Order on Pretrial Conference, Filing 21, indicate that plaintiff Daniel R. Turner was initially employed on July 24, 1986. Indeed, plaintiffs’ complaint refers to July 24, 1986 as the hire date of Turner. This date, however, is not in accordance with the documentary and testimonial evidence at trial which would support a finding that Turner was employed on July 25, 1985. For purposes of this action, any judgment for the plaintiffs is restricted to the time period subsequent to April 15, 1986 (for reasons that will be addressed below) and while the evidence admitted at trial shows that Turner, as with the other plaintiffs, is claiming overtime and unpaid wages from April 15, 1986, the pleadings would seem to limit any compensation for Turner to a period of time subsequent to July 24, 1986. Upon reviewing the evidence submitted at trial, it appears that the July 24, 1986 hire date stipulated to in the pre-trial order is merely a typographical error that was carried over from the original complaint. All of the evidence, including employee history documents from the defendant, indicates that Turner was hired as an HSIA I substitute prior to July 24, 1986. The evidence includes copies of time cards which shows hours worked prior to July 24, 1986 (Exhibit 21), monthly staff schedules indicating that Turner was a scheduled employee prior to that date (Exhibit 20), an employee description for Turner dated 3/19/86 (Exhibit 26), a short employee agreement signed by Daniel Turner on 7/25/85 (Exhibit 27), an employee wage history for all plaintiffs in this action showing Turner’s appointment date as 7/25/85 (Exhibit 22), an HSIA I employee agreement signed by Turner on 7/25/85, a computer printout recapping Turner’s time cards and showing his claim for unpaid regular and overtime hours beginning 4/14/86 (Exhibit 18A), and finally Turner’s testimony that he began his employment with the defendant on July 25, 1985. This inconsistency was apparently not noticed at trial by either party and none of the evidence indicating a hire date prior to July 24, 1986 was objected to by the defendant. This inconsistency is a minor portion of the dispute in this case; however, if this court found as fact that Turner was entitled to damages in the form of unpaid regular and overtime hours from July 24, 1986 as opposed to April 15, 1986, Turner would lose a considerable part of the relief requested in this action. Despite the peripheral importance of this problem in the scheme of things, I cannot lightly ignore the reality that the July 24, 1986 hire date was a stipulated fact set forth in the pretrial order pursuant to an agreement by the parties. The court cannot easily disregard such stipulations. As stated by the Eighth Circuit in Sims v. Wyrick, 743 F.2d 607 (8th Cir.1984): We have consistently held that stipulations of fact fairly entered into are controlling and conclusive, and that relief from such stipulations will be granted only under exceptional circumstances. (Citations omitted). Id. at 610. Under Fed.R.Civ.P. 16 the pretrial order “controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” On the other hand, given the circumstances of this case, it would exalt form over substance to turn a blind eye to the fact that all of the evidence admitted at trial relating to Turner’s hire date indicates that he began employment with LOMR well before July 24, 1986. While the Eighth Circuit wisely took a strict view of the binding nature of stipulations of fact in pretrial orders in the Sims case, it has also held that flexible application of pretrial orders is within the sound discretion of the court. Patterson v. F. W. Woolworth Co., 786 F.2d 874 (8th Cir.1986); Dabney v. Montgomery Ward & Co., 692 F.2d 49 (8th Cir.1982), cert. denied, 461 U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983). Such a rule is also recognized in this passage: Although federal judges generally recognize the binding effect of the pretrial order, this does not mean that it is rigidly and pointlessly adhered to at trial. The application of preclusion always is viewed as a matter of judicial discretion. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1527, at 608 (1971). In the spirit of Rule 16,1 conclude that in order to prevent “manifest injustice” the stipulated hire date of July 24, 1986 must be disregarded in light of the total contradiction of that allegedly “uncontroverted fact” as found in the evidence admitted at trial. It cannot be said that the defendant will suffer any prejudice or surprise by this action given that many of the documents establishing the inaccuracy of the July 24, 1986 date appear to be personnel documents prepared by the defendant; nor was there any objection by the defendant at trial to the introduction of these documents. I therefore find as fact that plaintiff Daniel Turner was hired by the defendant on July 25, 1985. The uncontroverted facts establish that Turner’s salary for the relevant time period, based on an hourly rate, was as follows: Aug. 29, 1985 to Aug. 27, 1986— $5,067 per hour Aug. 28, 1986 to Feb. 25, 1987— $5,214 per hour Feb. 26, 1987 to Apr. 15, 1987— $5,462 per hour Apr. 16, 1987 to Sep. 2, 1987 — $5,968 per hour Sep. 3, 1987 to Oct. 7, 1987 — $6,147 per hour Oct. 8, 1987 to present — $6,435 per hour The relevant time period for this suit begins on April 15, 1986 and ends with the filing of the complaint on February 18, 1988. While the plaintiffs were all employed prior to April 15, 1986, it has been established that they are not entitled to any overtime pay prior to that date in light of the fact that the defendant was not required to pay overtime rates prior to that time. It was not until Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), that the United States Supreme Court definitively brought public agencies such as the defendant within the scope of FLSA. The 1985 amendments to the FLSA codified Garcia and made many changes and clarifications as to the Act’s applicability to government employer’s and employees. See, Public Law 99-150, 99th Congress, 1985. The effective date of these amendments was April 15, 1986. At a brief conference immediately prior to trial the court ruled that any award of damages or evidence relating thereto would be limited to the period ending on the date on which the plaintiffs’ complaint was filed, February 18, 1988. FINDINGS OF FACT Lancaster Office of Mental Retardation (a.k.a. LOMR), a Lancaster County agency, owns and operates numerous homes in residential areas which are homes for clients with mental retardation. The LOMR organizational structure, in descending order of authority, includes the department head, residential coordinators, residential managers and the human service instruction assistants (HSIAs), the latter position being held by the plaintiffs in this case. Each group home is supervised by a residential manager who either resides on the premises or resides there for extended periods of time. The HSIAs are essentially relief employees for the residential managers, and the relief hours could include daytime or nighttime hours or both. In this case the uncompensated hours at issue are the overnight hours known as “sleep time.” The primary responsibilities of the HSIA are the care and supervision of the clients but the duties required to implement these responsibilities are numerous and involve every aspect of the client’s life. The HSIA job description, in part, is as follows: This is human service work instructing mentally retarded clients (children and adults) in basic social and educational skills. Work involves the responsibility for utilizing individual program plans to instruct mentally retarded clients in social, vocational and educational skills, such as, production skills, toilet training, feeding, dressing, motor coordination, money usage, cooking, shopping, telling time, and other social skills. Work also includes preparation of meals; maintaining sanitary living conditions; administering medication; recording daily activities of clients; and providing input to superiors concerning physical and emotional needs and progress of clients. (Exhibit 25). The two responsibilities rated highest for the HSIA job classification are as follows: 1. Direct Care Services to Clients: Provide assistance to clients so their physical and psychological needs are met. 2. Health Care, Medications, Safety: Follow agency procedures and exercise good judgment so client’s health care and safety needs are met. (Exhibit 26, p. 2) Specifically, HSIAs are required to be client advocates and teachers; they must ensure proper grooming for the client; arrange or provide transportation for recreational or emergency needs; assist non-ambulatory clients with braces, body jackets or other prosthetic devices; monitor, administer and record the client’s medication; be familiar with the medications being given; know proper physical intervention techniques for emergency situations; be prepared for client accidents or illnesses to ensure adequate treatment and have first aid knowledge; be prepared for emergencies such as fire, tornado, lost/missing/run-away clients, care of serious or minor injuries, etc.; assist in teaching independence skills; conduct self in a professional manner including following rules and regulations of the agency; communicate with client families, supervisors, co-workers, volunteers, and the public to the benefit of the client; instruct, prepare and serve preplanned meals; teach proper table manners and kitchen skills; maintain proper sanitation standards; some grocery shopping and menu preparation; involve client in recreational activity in the home as well as out of home; monitor recreational activity such that client safety is ensured; assist client in using community resources; teach and participate in home maintenance and repair both interior and exterior; do household laundry and house cleaning as needed; assist in client finances and purchase choices; and maintain necessary facility and client records. (Exhibit 26). The duties listed above are not all inclusive, but they demonstrate the vast range of duties and the serious responsibilities involved in the jobs undertaken by the plaintiffs. Residential managers and HST As at these group homes are indeed in a position analogous to a parent and are responsible for the health, safety and general well being of the clients at the homes. The clients cared for by the plaintiffs in this case have a wide range of psychological and physical disorders which require special and individualized care. The testimony at trial established that the plaintiffs worked at several different group homes which generally housed from three to six clients. EASTRIDGE FACILITY Plaintiffs Turner and Hultgren worked at the facility known as Eastridge; specifically, during the relevant time period of this suit Turner worked fifteen overnights at Eastridge and Hultgren worked forty overnights at that residence. The evidence indicates that Eastridge was a difficult work site due to the clients housed at that facility. The house itself had five bedrooms plus a staff/office room, a living room, kitchen, and bathroom. Five male clients resided at Eastridge and ranged in age from their early twenties to late forties. They were generally a disruptive group, physically aggressive and hard to control, and all were on various behavior modification drugs. “Clyde” is in his early forties, has been a LOMR client for twenty years. He is five feet eight inches tall and weighs approximately one hundred fifty pounds. Both Turner and Hultgren described “Clyde” as abusive to others as well as himself and aggressive. He has been known to hit himself with forks, pens, or his own hand. Turner had been told by the residential manager to take “Clyde’s” threats and actions seriously and to intervene to stop the activity. “Clyde” has several disruptive propensities which created a need for special measures to control his behavior. First, he has a tendency to run away from the group home which resulted in alarms being installed on his bedroom door and windows. Over time “Clyde” learned to trick the alarms by opening and shutting his door quickly thus keeping the alarm from sounding. Second, he often went on nighttime refrigerator raids to get food or attempted to break into the staff office to get cigarettes or attempt to find money. The refrigerator in the house was kept locked but “Clyde” apparently was able to gain access by unscrewing the door hinges. If unable to find a lighter for a cigarette he would turn on the electric stove burner to use as a lighter. “Clyde” was also known to urinate out his bedroom window or expose himself at the window. He had a television in his bedroom which was set at a high volume and occasionally he would fall asleep with it still on requiring a staff member to get up, go to his room and turn it off. “Drew” is an aggressive and suicidal client who suffers from “active” hallucinations and is at times delusional. He is both physically and verbally aggressive to the staff. He too has a tendency to run away from Eastridge and at least once ran into a busy street, requiring Turner to physically restrain him. He often misunderstands staffs intentions and sees them as threatening. “Drew” occasionally loses all sense of time and will get up at 2:00 or 3:00 A.M., shower, get dressed and demand breakfast and his cigarettes. This generally occurs when he is going through a change in his behavior medication. “Drew” has a loud cough due to smoking and is loud when closing doors. These factors cause several interruptions for staff at night. “Glenn” is five feet tall, weighs one hundred eighty pounds and has a large upper body and arms. His legs are incapacitated and he uses crutches to move around. He is described as “extremely violent” and tends to throw tantrums, spit, hit, or bite at staff and is also self-abusive. “Glenn” has a tendency to intentionally plug up the bathroom stool then overflow it, then stand in the bathroom and scream. He also has a habit of crawling into the living room at night and repeatedly calling the staff person’s name. The staff must then escort and often drag him back to his room. He will also yell staffs name from his room and pound his crutches on the walls or floor. “Gary” is five feet eight inches tall, is very strong and both physically and verbally aggressive. He has a tendency to throw tantrums and has kicked holes in his door and attempted to “destroy his room.” “Gary” has a habit of dressing in female clothes if female staff members bring extra clothing and leave it where he has access to it. For that reason Hultgren was told not to bring “feminine” looking clothing to this residence. “Terry,” the youngest, is the fifth client at Eastridge and is fairly “mild mannered.” “Terry’s” legs are incapacitated and he requires toileting and bathing assistance but does not tend to interrupt staff at night as do the others residents. RIDGEVIEW FACILITY Plaintiffs Turner and Smith worked overnights at a facility known as Ridgeview, a one level house with five client bedrooms, a staff bedroom, staff office, living room, kitchen, and bathroom. The bedrooms and the kitchen/living room areas were located at opposite ends of the house. Turner worked approximately twenty overnights at Ridgeview from April 1986 to February 1988 while Smith worked ninety-five overnights from September 1985 to January 1988. Ridgeview housed five male clients ranging in age from late thirties to their fifties. “Gerald S.” is described as self-abusive and prone to “steal” coffee and pop from the kitchen. He made frequent nighttime bathroom trips, a minimum of five to six times per night and other nights up to twenty to thirty times per night. He also would clog and overflow the bathroom stool or repeatedly flush the stool. “Gerry S.” had a history of psychotic behavior and was on medication for control of that problem. He had limited speech abilities, often merely engaged in repetitive speech and the extent of his conversation was to ask for pop. Smith testified that “Gerry S.” would knock on the staff bedroom door, enter the room and stand over her just watching, would make nighttime trips to the kitchen for pop, or would go outside fully dressed. “Gerry” apparently got outside unnoticed one night and no one realized it until he was banging on the door early in the morning because he had locked himself outside. Smith generally slept in the staff bedroom but for a time began sleeping in the living room to be more aware of “Gerry’s” movements. Chairs were placed in the hallway to try and discourage him from coming to the kitchen or going outside. “Kim” was aggressive and abusive both to himself and to staff. He would bite himself until he drew blood or continually pick scabs until they bled. He had a tendency to throw things, fling furniture at walls, and strike staff and other clients. “Kim” was non-verbal but did understand commands from the staff. On occasion he would rise at 5:00 A.M. and go to the kitchen or turn on the television but staff could generally get him to go back to bed without much difficulty although it required getting up to accomplish the task. “Kim” generally was up to the bathroom once or twice per night. “Gerald N.” is afflicted with cerebral palsy which caused rigid walking and poor balance. As a result of his illness “Gerald N.” walks loudly and often slaps his hand against the wall as he walks in an effort to keep his balance. This noise is more pronounced at night due to the fact that his balance is worse when he has been sleeping. “Steve” is a deaf individual, walks rigidly and slowly and requires assistance in grooming and dressing. His communication skills are confined to a limited signing ability. “Steve’s” nighttime bathroom visits are a problem for staff because he has a tendency to urinate in inappropriate places such as his shaving kit or other containers in the bathroom or play in his feces. He also is known to place certain objects, such as toothbrushes, into his rectum; a habit which requires staff to be particularly aware of his nighttime activities. He tends to be loud going to and from the bathroom and generally makes loud noises while he is up. “Gilbert” is physically impaired on one side of his body having no use of one arm, and one leg is considerably shorter than the other. He has a history of seizures, is on medication for that condition, and requires the use of a protective helmet. His speech ability is very limited. At night “Gilbert” often falls getting out of bed due to his physical impairments and “stomps” loudly to the bathroom. On at least one occasion Smith was unable to sleep due to “Gilbert” masturbating in his room which was next to the staff bedroom. NORTH 3RD FACILITY Turner and Hultgren worked at the North 3rd group home which was occupied at the relevant time by five female clients. This home was also all on one level with five separate client bedrooms and a staff bedroom plus a kitchen, living room and a den. Turner worked at this facility on two overnights and Hultgren worked approximately twelve overnights. At least three of the female clients at this residence were troublesome to staff. “Rose” tended to be a hypochondriac and often complained of stomach aches and would have itching spells so intense that she would make her skin bleed. “Michelle” was described as extremely violent and often self abusive. She occasionally had to be held down to calm her if she was out of control. She would also run out of her bedroom at night and into other clients rooms to attack them by pulling their hair and hitting them. She would at times try to bite or claw the staff. At night she would often get out of bed and come into the living room, kitchen or den to turn on the stereo. Hultgren described one incident where “Michelle” came into the living room and attempted to lay down on the couch where Hultgren was sleeping. “Sandy” was briefly described as aggressive and self abusive. “Marlene” apparently would awaken and get out of bed to ask the staff what time it was. Turner’s first night at the North 3rd residence was traumatic at best and he got no sleep. “Michelle” threw a tantrum and they no sooner got “Michelle” calmed down when “Rose” began an itching spell and had to be comforted. The residential manager, who was at the home both nights when Turner worked, warned Turner to be alert in the house for client activity. Hult-gren described her overnights as being interrupted an average of five to six times resulting in an average nights sleep of zero to four hours. STARR STREET FACILITY The Starr Street home was occupied by three adult females with Downs syndrome, two of whom were twins. Hultgren worked approximately one hundred fifty-five overnights at this facility between April 1986 and February 1988 while Smith worked only three overnights. The female clients at Starr Street had limited vocabulary and were difficult to understand. One of the clients was hearing impaired. The staff bedroom in this home was directly across the hall from the only bathroom, and at least one client per night would make a bathroom visit which disturbed the plaintiffs. One of the client’s talked loudly in her sleep and occasionally had nightmares. These clients would occasionally leave the bathroom in an unsanitary condition. There were times when a client would start her menstrual period and leave the bathroom in “a mess” or on two occasions Hult-gren described feces in the bathroom and on the stool. One evening Hultgren was directed to “clock” out at 11:00 P.M., bedtime, but to leave the front door unlocked because the clients would be coming in late from an outing. On two or three nights Hultgren’s sleep was interrupted by a client who was scared of thunderstorms. On one occasion, in order to calm the client, the plaintiff moved out into the living room on the floor to sleep so the client could be beside her. CLEVELAND STREET FACILITY Turner worked overnights at three other locations. The Cleveland Street group home was a large five bedroom house on one level. The facility housed five male clients. “Henry” was a small man, five feet tall and weighing only one hundred twenty pounds, was non-verbal, reclusive and liked to eat and sleep. He did not, however, like to stay in bed at night and made several trips to the kitchen at night. Turner would have to get up, turn “Henry” around and put him back in bed. He generally tried returning to the kitchen two or three more times per evening. The house staff policy was that after the fourth time it was better to simply let “Henry” sleep in the kitchen. Eventually, after discussions with the residential manager, it was decided that the kitchen chairs would be removed in an attempt to discourage “Henry’s” nighttime kitchen trips and put an alarm on his door. “Grant” was twenty years old and six feet tall. He was generally disoriented, confused and was known to have behavioral outbursts; although Turner never witnessed such behavior while he was at the home. “Grant” had a tendency to rise early in the morning and wander around the hall asking if it was time to get up. If he was told it was not, he would occasionally go back to bed on his own. “Grant” was generally quiet when and if he went to the restroom at night. “Jerry” is a blind individual in his early thirties, is talkative, has a job and an “excellent memory.” On the occasions that “Jerry” would use the restroom at night he would wake the plaintiff because he would “bang” his cane down the hall for direction. Although the noise would awaken Turner, he did not have to get up to attend to “Jerry” because he would go back to bed on his own. “Stacey” is in his early twenties and is a small man. He had no ability to move on his own, his arms and legs being entirely useless. He required an enema every three days and generally was entirely de-pendant on the staff for all his needs, including being moved in his bed from time to time. ■ “Cameron” is approximately five feet tall and very muscular. He tended to be self abusive, would yell and “bang his head on his knees” or hit himself. It was generally necessary for the plaintiff to intervene when this self-abusive activity took place. 39TH STREET FACILITY In addition to Cleveland Street, Turner worked some twenty overnights at the 39th Street group home, a small two-story house with three client bedrooms but no separate staff bedroom. A separate staff office was located in the basement, however, it was not used for staff sleeping. This residence housed three male clients; “Joe”, “Mark”, and “Matt.” “Joe” is six feet tall, weighs one hundred eighty pounds and is extremely aggressive. Behavior modification drugs are used to control his outbursts; however, there is almost no controlling him when he acts out aggressively. He has thrown lamps, tables, and forks when angry and will hit, kick and bite the staff. He is also described as self-abusive. Turner described overnight incidents where “Joe” would stand over him and “watch him sleep” (which Turner said he would simply try to ignore) or just walk around the house or stand in one place for a time. “Joe” also had a tendency to run away from the group home if he was not monitored closely. “Mark” is five feet three inches tall and at the time relevant to this suit weighed three hundred thirty pounds. He has a propensity for tantrums and has run away from the group home as late as 10:00 P.M. “Mark” is very loud at nighttime when he is up to the bathroom in that he slams the doors to every room he goes to and from. He is usually up two times per night. “Matt” is known for his tendency for stealing and tantrums. He too is very noisy when he goes to and from the bathroom at night which is particularly a problem for staff since “Matt’s” door is approximately fifteen feet from the couch where the staff sleeps. JOYCE STREET FACILITY Finally, Turner worked two overnights at the Joyce Street home which housed three male clients who “habitually slept through the night.” In addition this house, unlike all the others, was set up with totally separate bathroom facilities for staff which was located in the staff bedroom which was at the opposite end of the house from the client bedrooms. Whether it was the clients or the location of the rooms, this home afforded a reasonable night’s sleep for Turner. BERKSHIRE APARTMENTS Besides the group homes referred to above, Victoria Smith also worked three overnights at the Berkshire Apartments. Within the apartment complex, seven LOMR clients rented four separate two bedroom apartments. The sleeping accommodations for staff were located in the men’s apartment and consisted of a hide-abed in the living room. The women clients who occupied the other three apartments were required to call Smith when they arrived at their apartments at night. These calls often came after 10:00 P.M. when Smith had “clocked out” for her “sleep time” for which she was not compensated. The two male clients in the apartment in which the staff slept were “Tom M.” and “Mark P.” “Tom” is in his mid thirties of average height and weight and fairly verbal. He is quite independent, walks to and from his worksite and does not particularly like the staff that stays at his apartment and avoids interaction with them. “Mark P.” is in his mid to late twenties, is “easy-going” and independent. He enjoys staying up late to watch television which is a problem in that the television is in the living room where staff must sleep. In addition, “Mark” is a hepatitis B carrier, a fact which concerned the plaintiff in part because LOMR gave her little or no information as to safety precautions in dealing with persons having the condition or in sharing their living quarters. “Mark’s” hygiene skills were unsatisfactory and the shared bathroom was unclean. The television was a particular problem for the plaintiff on her overnights at Berkshire because she could not sleep with it on and with “Mark” in the room yet she could not claim the time because she was not “attending to the client.” She testified that she could not ask “Mark” to shut the television off because it was his “home.” NORTH 14TH STREET FACILITY In addition to the group homes mentioned above, Lisa Hultgren spent one overnight at a home on North 14th which was a “private residence” in which a male LOMR client lived with a family. The night Hult-gren stayed at North 14th, she and the client were the only persons in the house. “Kevin” was described as quiet and “laid back” but difficult to understand verbally. He has few behavior problems except a history of masturbating in public places. The plaintiff slept on a living room couch, fully clothed, and although the client did not interrupt her sleep, she did not sleep well given the unfamiliarity with the client and the surroundings. SLEEP INTERRUPTIONS The defendant’s “sleep time” policy stated that this time was to be uncompensated with the exceptions that (1) interruptions for “calls to duty” (i.e., getting out of bed and attending to a client) of more than a ten-minute duration could be documented and compensated and (2) if the employee got no more than five hours of uninterrupted sleep the entire eight hours must be compensated. The executive director of LOMR during the relevant time, Brian Lensch, testified that he believed the Wage and Hour bulletins did not require that the five hours of “uninterrupted sleep” be “consecutive” hours of sleep. The plaintiffs in this action admit that they were paid for documented “calls to duty” that lasted more than ten minutes. Indeed for some of the overnights plaintiffs were compensated for the entire sleep time period of eight hours and they are not seeking further recovery for those nights in this suit. The difficulty arises when one considers the interruptions in sleep time that plaintiffs were unable to document because the time was less than ten minutes or they were not required to get out of bed to attend to the client. The evidence in this case indicates that these interruptions were numerous. Turner testified that at the Eastridge facility “Clyde” was often up at night either in an attempt to escape, going to the kitchen or breaking into the staff room where the cigarettes were kept. Generally the alarm on “Clyde’s” door would go off when he came out of his room which would alert Turner that “Clyde” was out of his room. Generally, with the bathroom interruptions or the kitchen visits Turner was either not required to get out of bed, because he could merely listen to hear if “Clyde” returned to his room, or he was not up for more than ten minutes because he merely escorted “Clyde” back to his room. The escape attempts were usually claimed and compensated in that these interruptions involved getting up and being up for more than ten minutes and often in excess of an hour. The bathroom interruptions from “Clyde,” which were usually one or two times per night, occurred during one-third to one-half the overnights Turner worked at Eastridge, the interruptions from “Clyde” going to the kitchen happened one of every five to eight times Turner worked; and there were four to five incidents where Turner had to go to “Clyde’s” bedroom to turn off the television that he had left turned on after bedtime. Turner’s interruptions from “Drew” at Eastridge occurred during one-third to one-half of the overnights that Turner was at the facility and were described as frequent interruptions, but a minimum of two to three times per night. The interruptions involved “Drew” being in the bathroom with a coughing attack after having awakened Turner by loudly slamming the doors to his bedroom and the bathroom. Sometimes “Drew” would ask Turner for cigarettes at night and on other occasions “Drew” would be awake and delusional; however, during these latter incidents Turner’s waking time was compensated because it took some time to settle the client down. Again it should be noted that none of the plaintiffs are requesting any further compensation for the “calls to duty” that were paid for when documented. “Glenn” was awake and creating a disturbance at least three times that Turner recalls and on these occasions Turner was compensated because it took longer than ten minutes to settle him down and get him back to his room. In total, Turner estimated that he averaged two to three hours of sleep per night at Eastridge even though he was lying down on the couch for six to seven hours. Hultgren testified that “Clyde,” “Drew,” and “Glenn” were all up frequently at night and that she had her sleep interrupted on the average of five to six times per night while at that facility. She estimated that one-fourth to one-third of these interruptions were documented and paid for, and the rest were interruptions that did not require getting up or were for less than ten minutes. She further stated that she averaged a minimum of zero to four hours sleep at this facility but generally did not get more than four hours due to interruptions. Turner and Smith both worked at the Ridgeview facility and both testified to frequent interruptions in their sleep. Both of these plaintiffs indicated that “Gerald S.” created the most nighttime disturbances due to his many bathroom trips. Turner stated that “Gerald S.” was up a minimum of five to six times per night and at times anywhere from twenty to thirty times. None of these frequent interruptions were claimed as compensable time by Turner due to the short time duration. Smith corroborated this testimony and stated that “Gerry” was up as many as twenty-five to thirty times in the bathroom and at times clogged and flushed the stool. She also noted that he had knocked on her door at night and had come into her room where she slept, would go to the kitchen for coffee or tea, and would at times go outside fully dressed. Smith sometimes slept in the living room to try to prevent “Gerry’s” late night excursions or put chairs in the hallway to discourage his behavior. Turner further testified that “Kim” would usually wake him up one or two times per night, none of which were compensated and that “Gerald N.” would go to the kitchen and bathroom once per night. Turner averaged four to five hours of sleep at Ridgeview but often received less than that. Smith stated that “Steve” was up to the bathroom as many as five times per night, only two of which she generally regarded as “legitimate” trips. “Steve’s” activities in the bathroom had to be monitored closely because of his propensity to urinate in inappropriate places and his tendency to insert objects into his rectum. “Gilbert” was up from one to three times to the bathroom and was very loud, and at times fell out of bed, due to the one leg that is considerably shorter. On one occasion “Gilbert’s” masturbation in bed kept Smith awake since she, on that night, stayed in the staff bedroom which was beside his room. “Gerald N.” would go to the bathroom once or twice a night and he too was very loud largely due to his poor balance which was worse when he had been sleeping. “Kim” was at times up very early, ready to be up for the day and also was up once per night to the restroom. Smith testified that she averaged two to four hours of sleep per night at Ridgeview, sleeping “very poorly”, but did receive more than four hours on a “few nights” and no sleep at all “some nights,” and was generally interrupted five to fifteen times per night and not able to get back to sleep right away. Smith and Hultgren both worked overnights at the Starr Street facility. Smith was at that facility only three times during the relevant time period of this case. She testified that she had two to five interruptions per night while she was there from each of the three clients going to and from the bathroom once per night and also from hearing the one client who talked in her sleep at night. None of these interruptions was documented because they were less than ten minutes in duration. Smith averaged four to five hours of sleep at Starr Street due in part, she stated, to her having trouble getting to sleep because of the unfamiliar setting, and part to her anxiety from “bad locks” on the house and the “bad neighborhood” in which the house was located. Hultgren testified that she had her sleep interrupted two or three nights from a client who was scared of a thunderstorm waking her up. In addition, the clients would go to and from the bathroom at least once per night. As with Smith, Hultgren also had sleep interruptions from the client who talked loudly in her sleep, this happening at least once every weekend overnight she was there. None of these interrupts was compensable time due to the fact that the plaintiff was not required to get out of bed. Hultgren got less than four hours of sleep at Starr Street approximately ten per cent of the time and managed to get five to six hours on the average. She did not, however, ever get a full eight hours of sleep. Turner and Hultgren were stationed at the North 3rd facility and both testified that they got little or no sleep at this home. In Hultgren’s case, of her twelve overnights she averaged zero to three hours of sleep per night and was interrupted five to six times per night. These interruptions consisted of “Michelle” getting up to go to the kitchen or living room and turning on the stereo at night. “Michelle” also would occasionally get into other client’s rooms and physically attack them. Most of the latter interruptions were time for which Hultgren was compensated since she had to be up and it took some time to settle the clients down and get them back to their rooms. “Marlene” was occasionally up in the hallway asking if it was time to get up. Turner was at the North 3rd facility only twice and stated that he was unable to sleep at all these nights but was able to document and be paid for only one hour between the two nights. The first night “Michelle” threw a tantrum and it took time to settle her down. Then “Rose” began itching badly and had to take a bath to calm the itch. The second night was calmer but Turner stated that he was very nervous because of “Michelle” particularly since she tended to be violent and because the house was unfamiliar to him, having been there only one other night. Turner testified that at the Cleveland Street facility he was routinely interrupted by “Henry” going to the kitchen several times per night. Turner would have to get up two to three times to turn “Henry” around and send him back to his room only to have him return a short time later. All of these incidents were of a duration of less than ten minutes and were not compensated. During at least one-third to one-half of the times Turner was at this house “Jerry” was up to the bathroom and woke him, due to the client “banging” his way to and from the rooms. On one of every four to five nights “Grant” would get up prior to 5:30 A.M., get fully dressed and wander up and down the halls asking if it was time to get up. Turner estimated that there was an average of seven to eight interruptions each time he was at the Cleveland Street home and that he averaged three to four hours of sleep per night. At the 39th Street facility, Turner slept in the living room since there was no separate staff bedroom. He was at this facility some twenty overnights and averaged three to four hours of total sleep per night. “Joe” interrupted Turner’s sleep two to three times per night on half of the nights he was there by getting up to the bathroom, standing over the plaintiff “watching” him sleep or just standing in the hall at the bathroom door. None on these interrupts was compensated due to the short duration. “Mark,” who loudly slammed doors when going to and from the bathroom, interrupted Turner’s sleep two times per night every night Turner was at the 39th Street home. “Matt” also would be up at least once per night and was also loud when going to and from the bathroom. None of these interruptions was compensated. At the Joyce Street facility, Turner, who was there two nights, was able to sleep through the night as were the clients at the home. This house had a staff bedroom available to the plaintiff that had an adjoining shower room and the clients were at the other end of the house. All of these clients slept through the night and often into the daytime hours also. Smith worked overnights at the Berkshire Apartments three nights and did not get a full nights sleep any of the nights. At the apartment in which she slept, “Mark” would stay up late watching television in the living where the plaintiff had to sleep. The sleep interruptions due to this noise were not claimed as compensable because, as Smith testified, she believed that “Mark” had the right to watch television in his own home and because she was not required to “attend” to him in any way. Smith was also required to answer the phone after sleep time began, in order to receive calls from clients in the other apartments who were required to call the staff person when they came in late at night. Smith stated that she got “little sleep” at the Berkshire facility and “some nights not at all” because she was uncomfortable with the sleeping arrangements and was kept awake by the television. Finally, Hultgren stayed one overnight at a private home which housed a client on North 14th. She was required to sleep on the living room couch in this house. Although the client did not interrupt her sleep, Hultgren testified that she did not sleep soundly because of the lack of familiarity with the facility. DISCUSSION At nearly all of the group homes described by the plaintiffs the behavior and propensities of the clients required a staff person to sleep “with one eye and one ear open.” The evidence is uncontroverted that the plaintiffs’ primary responsibility was the safety and well-being of the clients at the group homes. At night they were required to be prepared and alert for emergencies such as client illnesses, clients being up and moving around and, in some cases, clients attempting to leave the home. Indeed the plaintiffs’ understanding of their job duties is supported by the language in the “employment agreement” at issue in this case which explicitly states: ... the Employer’s premises is to be used primarily as a residence for persons with mental retardation. It is therefore imperative that the Employer’s premises be attended by a person qualified and approved by LOMR when a person with mental retardation is upon the premises (or is scheduled to be upon such premises).... (Exhibits 2, 3, 4, and 5) (Emphasis added). It may logically be inferred from this language that LOMR recognizes that their clients need attention and supervision from a qualified staff person. It is not logical to assume that a staff person on an overnight stay would be able to attend to the clients if he or she slept so soundly as to be unaware of the clients’ activities or needs. While there is no evidence in this case of any disciplinary action being taken against these plaintiffs or other HSIAs for a failure to become aware of an incident or emergency, it can be inferred from the evidence that LOMR would not continue to employ staff whose inattention jeopardized the safety and health of individual clients or the group home as a whole, and I so find. The alarms on clients doors and windows also demonstrate the necessity for staff attentiveness in these group homes. In short, it is clear that LOMR requires overnight staff to be alert to client movements and activities in the night. In many cases the plaintiffs’ sleep was interrupted on brief but numerous occasions on an overnight shift. Many of these clients, albeit unintentionally, were loud and disruptive when they arose at night simply to make a bathroom visit, and even these routine night activities woke the plaintiffs. Often these activities were uneventful, but the plaintiffs, while remaining in bed, were required to listen for the client activities in the bathroom and be certain that the client was returning to his or her room within a reasonable amount of time. These interruptions were not compensated because the plaintiffs did not have to attend to the client and the time was generally less than ten minutes. On other occasions the plaintiffs were required to get out of bed to check on a client’s activities, if the bathroom visit was taking too long, or if it was clear from listening that a client had not returned to his or her room upon leaving the bathroom. The evidence amply demonstrates that many times the interruptions which required the plaintiffs to get up involved merely taking the client back to his room or directing him to go back to bed. Even when a plaintiff was required to attend to a client, if the “call to duty” was of a duration of less than ten minutes it was uncompensated. The evidence shows that on numerous occasions the plaintiffs were required to get out of bed and be up for less than ten minutes and were not compensated for the interruptions. These uncompensated interruptions were not rare occurrences. In fact, the evidence shows that they were frequent during each night and consistent over the course of the plaintiffs’ employment. The majority of the group homes described by the plaintiffs had as many five clients, most of whom were up at night on more than one occasion and often several times. In fact, the evidence shows that a client who did not get up at night was the exception rather than the rule. Whether or not the plaintiffs had to get out of bed to attend to a client does not alter the fact that numerous interruptions occurred on the majority of nights which required the plaintiffs to awaken and be alert to the activities of a client or clients. Such interruptions made several hours of uninterrupted sleep impossible for the plaintiffs. The defendants presented testimony from two residential managers which conflicted to some degree with the plaintiffs’ testimony as to the frequency of nighttime interruptions at the Starr Street facility and the Ridgeview facility. Nel Kotschwar had been the residential manager at the Starr Street facility from July 7, 1980 to the time if trial. She testified that her sleep was seldom interrupted by the three female clients at the facility and at the maximum was interrupted two or three times per month. In addition she stated that she generally received seven and one-half hours of sleep per night and never less than four. On cross examination, the witness admitted that the clients were more comfortable around her and did act “differently” toward strangers. Hultgren’s testimony relating to the Starr Street facility indicates that her sleep interruptions were less frequent at that facility and that ninety per cent of the time she was able to get five and six hours of sleep per night. She was generally interrupted once per night with a client going to and from the bathroom and was interrupted every weekend by one of the clients who talked loudly in her sleep. Two or three of Hultgren’s overnights were interrupted by a client who was afraid of a thunderstorm and needed comfort. Ms. Kotschwar testified that the client was “not particularly” afraid of lightening and thunder. Leonard Brewer, residential manager for the Ridgeview facility, testified for the defendant and stated that his sleep was generally interrupted two or three times per week and only for two to three minutes each time. He also testified that on two different occasions a client had seizures which required his attention for a longer period of time. The witness indicated that he averaged seven to seven and one-half hours of sleep per night and never as little as four. Brewer’s testimony corroborated Turner’s and Smith’s description of the clients at that facility as well as the difficulties experienced with each client, but contrasted with their testimony, detailed earlier, as to sleep interruptions. He admitted on cross examination, however, that the clients knew him well due to the amount of time he spent with them, and that they were comfortable with him. Despite the conflict in testimony as to the number of nightly interruptions and average amount of sleep time, I do not believe that it is a reflection on the plaintiffs’ credibility. The testimony indicates and it is reasonable to infer that these clients were far more likely to rest better and be more at ease when the residential managers were at the homes. Testimony from residential managers who reside at these facilities for extended periods of time and are familiar with the clients is not easily equated with testimony from relief staff who do not have the luxury of knowing the clients as well or having the clients become comfortable with their presence. Undoubtedly there is comfort in familiarity, and I do not believe that the testimony of these residential managers detracts from the plaintiffs’ descriptions of interruptions and disturbances they encountered as relief staff. In addition, the plaintiffs testified that there are a few occasions on which they were uncomfortable at the homes and got little sleep even without client interruptions, such as with Hultgren at the North 14th Street. It must be remembered that the residential managers who testified had slept at the same facility for many years while these plaintiffs moved from facility to facility for one or two overnights. Indeed, the notion that there is comfort in familiarity is true for the plaintiffs as well. Again, this is but one of the negative aspects inherent in their jobs which tends to decrease the chances that the plaintiffs might usually enjoy an uninterrupted night’s sleep. The sleeping facilities provided by LOMR for the plaintiffs varied from house to house. Many of the group homes had staff bedrooms which were normally used by the residential managers when they were at the facility. These rooms were available to the plaintiffs if they were the only staff person at the home on an overnight. Besides the bedrooms provided, LOMR also provided couch hide-a-beds located in the living rooms at some of the homes or simply a standard couch in others. The plaintiffs testified that they often slept on the couch or hide-a-bed in the living room even if they had the option of the staff bedroom. The plaintiffs’ choice of where to sleep was dictated by the particular group home at which they were staying and such factors as whether they had clients that tended to try to sneak away at night (making the living room the most logical place to sleep for prevention purposes), the cleanliness of the staff bedroom, or the location of the staff bedroom and the noise level coming from client bedrooms. APPLICATION OF THE LAW The crucial question to be answered by this court is whether the plaintiffs’ “sleep time” constitutes “working time” within the FLSA and as such must be included in determining whether the plaintiffs are entitled to overtime compensation. As noted in a recent case on this very question, “[i]t is well settled that under appropriate circumstances sleep time constitutes work time.” Beaston v. Scotland School for Veterans’ Children, 693 F.Supp. 234, 236 (M.D.Pa.1988). See, Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). It is also well settled that the question of whether sleep time constitutes working time is a question of fact for the trial court. Skidmore, supra at 136-37, 65 S.Ct. at 162-63. See also, Central Missouri Tel. Co. v. Conwell, 170 F.2d 641, 646 (8th Cir.1948). The factors to be considered by the trial court in resolving this factual question were described as follows: This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged. * * % The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was. Skidmore, supra, 323 U.S. at 137, 65 S.Ct. at 163. In addition, the Court in Armour noted the importance of determining whether the “waiting time” was spent for the benefit of the employer or the employee. [A]n employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominately for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case. Armour, supra, 323 U.S. at 133, 65 S.Ct. at 168. In FLSA cases the courts are assisted by interpretive bulletins issued by the Administrator of the Wage and Hour Division of the United States Department of Labor. These bulletins are not binding on the courts but do offer guidance in the form of “specialized experience” and “informed judgments.” Skidmore, supra 323 U.S. at 139-40, 65 S.Ct. at 164; Beaston, supra, at 237. Specifically, the Administrator’s “sleep time” policy is explained in the Interpretive Bulletin on Hours Worked found at 29 C.F.R. Part 785 (1988). The relevant sections are set out in the margin. Although the evidence shows that many of the overnights worked by the plaintiffs were part of a shift of less than 24 hours, the defendant contends that § 785.21 is inapplicable because in reality their HSIAs were always “scheduled” for 24-hour shifts whether they were at the group home or not. The defendants assert that the 24-hour shift was made up of duty hours, sleep time and “off-duty” or so called “on call” time during which the HSIA may be called back to the group home for emergencies. The example given in testimony at trial was that an HSIA may begin a shift at 2:45 P.M. on 4/15/86, be on duty until 11:00 P.M. at which time they “clock out” for sleep time, clock back in on the morning of 4/16/86 at 7:00 A.M. and be on duty until 8:30 A.M., then leave the facility and be “off-duty” but “on call” until 2:45 P.M. the afternoon of 4/16/86. (Exhibit 16) During that “on call” time the employee is not being paid, leaves the group home and is free to do whatever he or she wishes. Frank Faughn, former business director of LOMR and present interim executive director, testified that this 24-hour shift interpretation was based on an opinion letter from the deputy administrator of the Wage and Hour Division of the Department of Labor (Exhibit 1(a)) which LOMR apparently received from Region V Mental Retardation Services located in Nebraska. In that letter the deputy administrator stated, in pertinent part, as follows: Your third and final question related to employees who do not reside at the community residences but who, as relief employees, remain therefor at least 2k hours, and often as long as two or three days. You have informed us that these relief employees, during a 2k hour period, have off-duty time during the day with complete freedom from all responsibilities, thereby enabling them to use the time effectively for their own purposes. Such employees, as you have pointed out, are arguably on duty for less than 2k hours. Your specific question is whether the sleep time of such employees can be deducted from working time. Under the particular circumstances you have described, we believe that such sleep time can be deducted from hours worked, provided that the employer and employees agree in advance to do so, and that no more than 8 hours per night (or actual, uninterrupted sleep-time, if that is less than 8 hours) is deducted. We have reached this conclusion, which represents a departure from the general rule under 29 CFR 785.21, because of the home-like environment afforded to these employees in community residences, with private quarters and other amenities. * * * (Exhibit 1(a), p. 4) (Emphasis in original). Faughn also testified that HSIAs had knowledge of the “24-hour shift” policy by means of the “employment agreements” such as that signed by each plaintiff, (Exhibits 2 through 5) and the monthly schedules (Exhibit 20) posted at each facility. Beginning in June 1986, these schedules indicated that overnight staff were scheduled for “full shifts”; as of August 1986 they included the following: All staff scheduled for overnights are scheduled for 24 hour shifts, which may include duty, evening and off duty hours. Off duty hours are not shown on the schedule and the employee is relieved from performing required duties and may engage in normal private pursuits. In February 1988 that notice was changed to read: All staff scheduled for overnights must be scheduled for 24 hour shifts, which may include duty, evening, and off duty hours. Exceptions must be approved by the Coordinator. Off duty hours must not be greater than 4 per 24 hour shift and evening hours must not be more than 8 pe