David RUTLIN, Plaintiff-Appellant, v. PRIME SUCCESSION, INC.; Kerley & Starks Funeral Homes, Inc., jointly and severally, Defendants-Appellees, 220 F.3d 737

COLE, J., delivered the opinion of the court, in which NORRIS, J., joined. MOORE, J. (pp. 744-52), delivered a separate dissenting opinion. OPINION COLE, Circuit Judge. David Rutlin, a licensed funeral director and embalmer, filed this action against his former employer under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., claiming that he was not compensated for his overtime services and on-call time. The district court granted partial

summary judgment to each party, finding, inter alia, that Rutlin was a professional and, therefore, exempt from the overtime requirements of the FLSA. The district court further found that Rutlin’s on-call time was not so restrictive as to require compensation. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND to the district court for further proceedings in accordance with this opinion. I. From 1968 until 1997, Rutlin was employed by Kerley & Starks Funeral Homes, Inc. and its successor, Prime Succession, Inc. (“Prime Succession”), as a licensed funeral director and embalmer.

In order to become a licensed funeral director in Michigan, Rutlin was required to complete a year of mortuary science instruction and two years of college, including classes in chemistry and psychology; pass national board tests that covered embalming, pathology, anatomy, and cosmetology; practice as an apprentice for one year; and pass an examination given by the state. See Mich. Comp. Laws § 339.1806. Rutlin’s job responsibilities included embalming bodies and preparing them for funerals, counseling families, directing funerals, and supervising burials.

Rutlin also did chores such as receiving and directing flower deliveries, arranging for newspaper notices, mowing the lawn, and cleaning the funeral home. From 1985 to 1997, Prime Succession paid Rutlin under five different salary arrangements. The district court described the five periods as follows: 1) From November 1974 to February 1995 (“Period I”), plaintiff was paid a salary of $1623.00 every two weeks with no overtime. 2) From February 1995 to March 1996 (“Period II”), plaintiff was paid on a “fluctuating workweek” plan.

Under this plan, plaintiff received $1540.00 every two weeks and some overtime (one-half plaintiffs regular rate) for every hour worked over forty per week. Plaintiffs regular rate for any,given week was calculated by dividing his fixed salary by the number of hours worked that week. 3) From March 1996 to December 1996 (“Period III”), plaintiff was paid on a “guaranteed workweek” plan.

Under this plan, plaintiff received $1750.00 every two weeks for all hours worked up to and including sixty hours, and overtime at one and one-half his regular rate for hours worked over sixty per wéek. 4) From January 1997 to [m]id-April 1997 (“Period IV”), plaintiff was paid a salary of $1750.00 every two weeks without overtime. 5) From [m]id-April 1997 to October 1997 (“Period V”), plaintiff was paid on an hourly basis with overtime at one and one-half times his regular rate for hours worked over forty per week. Rutlin v. Prime Succession, Inc., 29 F.Supp.2d 794, 796 (W.D.Mich.1998) (footnote omitted).

As one of three funeral directors employed by Prime Succession, Rutlin was required to be on call during certain nights and weekends. When Rutlin was on call; Prime Succession’s phone line was transferred to his home, where he was responsible for answering calls. This duty was rotated, such that for two weeks Rutlin would be on call two week nights from 5 p.m. to 8 a.m., and the third week he would be on call over the weekend, from 5 p.m. Friday to 8 a.m. Monday.

In August 1997, Rutlin filed a complaint in Michigan state court, claiming that he was denied overtime pay and on-call compensation in violation of the FLSA, the Michigan Wages and Fringe Benefits Act (WFBA), MiCH. Comp. Laws §§ 408.471 et seq., and Michigan contract law. Prime Succession removed the case to federal court in October 1997; both parties then filed motions for

summary judgment. On December 3, 1998, the district court granted partial

summary judgment to each party. The district court found that Rutlin was a professional employee during pay periods I through IV and, therefore, exempt from the FLSA’s overtime provisions. Accordingly, the district court granted Prime Succession’s motion for

summary judgment for pay periods I through IV. With respect to pay period V, the district court granted

summary judgment in favor of Rutlin, finding that he was not a professional during that time because he was not paid on'a salary basis. The district court thus held that Rutlin was entitled to overtime pay for pay period V. As for on-call compensation, the district court granted

summary judgment in favor of Prime Succession, finding that Rutlin’s on-call time was not so restrictive as to require pay. The district court stated: Plaintiff admits that he could usually swap on call schedules with another funeral director in order to accommodate his plans, and that he could forward the phones and be reached by a pager if he had to leave home while on call. Plaintiff states that on average he received between 15 and 20 phone calls a night, taking up about one hour of his time, while he was on call.

Sometimes plaintiff would be required to make other phone calls in response to the calls he received. Also, plaintiff received, on average, one “death call” per week. A death call required the plaintiff to leave home, pick up the hearse, remove the body, and return the body to the funeral home. Plaintiff clocked in and out, and was compensated, for the time he spent on a death call.

Finally, plaintiff stated that he was able to engage in personal activities while on call, including watching television, computing, talking on the phone with friends and family, engaging in activities with his wife, and going out to dinner. Given these facts, it is apparent to the Court that plaintiffs on call time was not “so onerous” as to prevent him from engaging in personal pursuits. Plaintiff had flexibility in his on call schedule, and the ability to leave his home. The phone calls plaintiff received, though fairly frequent, rarely involved calls to duty, or death calls.

Finally, plaintiff was able to engage in a significant number of personal pursuits while on call. For these reasons, the Court finds that plaintiffs on call time is not compensable under the FLSA. Rutlin, 29 F.Supp.2d at 799-800 (citation omitted). In regard to Rutlin’s WFBA claims, the court granted

summary judgment to Prime Succession for pay periods I through IV, based on the fact that the WFBA does not create an independent right to overtime pay. The court did not grant

summary judgment to either party for pay period V on Rutlin’s WFBA claim. Finally, the district court addressed Rutlin’s state contract law claims. The court found no evidence that Rutlin understood he was entitled to overtime pay for periods I through IV, but found there was á contract for overtime pay during period V. The district court granted

summary judgment to Rutlin for this time period. The parties then stipulated that the WFBA claim for Period V would be dismissed, to enable Rutlin to appeal to this court. Rutlin now appeals the adverse rulings of the district court. The Secretary of Labor has filed a brief as amicus curiae in support of Rutlin. II. We review a district court’s grant of

summary judgment de novo. See Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The decision to deny a motion for

summary judgment, while ordinarily reviewed for abuse of discretion, is reviewed de novo when it is based on the resolution of a legal issue rather than on the presence of a material issue of fact for trial. See Douglas v. Argo-Tech Corp., 113 F.3d 67, 70 (6th Cir.1997).

Summary judgment is proper if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R.CIV.P. 56(c). We view the evidence in the light most favorable to the non-moving party. See Birgel v. Board of Comm’rs, 125 F.3d 948, 950 (6th Cir.1997). III. A. Rutlin contests the district court’s finding that he was a professional and, therefore, not entitled to overtime compensation under the FLSA for pay periods I through IV.

The FLSA requires an employer to compensate an employee who works over forty hours a week “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)(1). There is an exemption from the overtime pay requirement, however, for those employed in a “bona fide executive, administrative, or professional capacity.” See 29 U.S.C. § 213(a)(1). This exemption is “narrowly construed against the employers seeking to assert [it].” Douglas, 113 F.3d at 70 (citation and quotation omitted). The employer bears the burden of proving that an employee fits into the exemption. See id.

The determination of whether a plaintiff is a professional is “intensely fact bound and case specific.” Bohn v. Park City Group, Inc., 94 F.3d 1457, 1461 (10th Cir.1996). Congress did not define the phrase “bona fide executive, administrative, or professional capacity” in the FLSA; instead, it delegated to the Secretary of Labor the responsibility of promulgating regulations to define the scope of the

section at issue. See 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.2. The Secretary’s regulations must be given controlling weight unless those regulations are found, to be “arbitrary, capricious, or manifestly contrary to the statute.” Freeman v. National Broad. Co., 80 F.3d 78, 82 (2d Cir.1996).

With respect to determining whether the exemption for overtime pay applies because an employee is a professional, the implementing regulations of the FLSA set out a “long test” and a “short test.” The short test applies to employees who are paid “on a salary or fee basis at a rate of not less than $250 per week.” 29 C.F.R. § 541.2(e)(2). Here, the parties do not dispute the fact that the short test applies to this case.

Under the short test, Prime Succession must prove that: 1) it paid Rutlin on a salary or fee basis; 2) Rutlin’s work required “knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes,” 29 C.F.R. § 541.3(a); and 3) Rut-lin’s job duties required him to customarily and regularly exercise discretion and independent judgment. See Owsley v. San Antonio Indep.

Sch. Dist., 187 F.3d 521, 524 (5th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1423, 146 L.Ed.2d 314 (2000); cf. Douglas, 113 F.3d at 70-71 (citing 29 C.F.R. § 541.2(a)(1), (e)(2) in applying the exception for administrative employees). We are aware of only one circuit court that has faced the issue of whether a licensed funeral director and embalmer is a professional under the FLSA.

In an unpublished decision, the Seventh Circuit affirmed a district court’s finding that a licensed funeral director and embalmer was a professional, noting that the employee often operated the funeral home alone in the absence of the owner, and that embalming required independent judgment and discretion. See Szarnych v. Theis-Gorski Funeral Home, Inc., No. 97-3069, 1998 WL 382891, at *1 (7th Cir. June 4, 1998).

Turning to other occupations, the Fifth Circuit has held that athletic trainers are professionals, in light of Texas’ requirement that trainers obtain a bachelor’s degree in any field, but also must take certain courses such as anatomy and physiology, perform a three-year apprenticeship, and obtain CPR certification. See Owsley, 187 F.3d at 525; see also Reich v.

Wyoming, 993 F.2d 739, 743 (10th Cir.1993) (finding gáme wardens to be professionals, stating: “In order to accomplish the tasks associated with wildlife management, the wardens must have particular knowledge of various species and their habitats as well as the vegetation and general terrain within their districts. A degree in wildlife management or biology or similar field provides the wardens with this requisite knowledge.”). But see Dybach v.

Florida Dep’t of Corrections, 942 F.2d 1562, 1566 (11th Cir.1991) (holding that a probation officer not a professional because the job did not require an advanced degree in a specialized field of knowledge). In the present case, there is no argument regarding whether Prime Succession can establish the first prong of the short test for establishing that Rutlin was a professional: Prime Succession paid Rutlin on a salaried basis for pay periods I through IV.

As for the second prong of the short test, Prime Succession must show that Rutlin’s work required “knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes.” 29 C.F.R. § 541.3(a).

The FLSA regulations further explain that the word “customarily” implies that in the vast majority of cases the specific academic training is a prerequisite for entrance into the profession. See 29 C.F.R. § 541.302(d). The Secretary’s

interpretations recognize that “[t]he areas in which professional exemptions may be available are expanding,” 29 C.F.R. § 541.301(e)(2), but, “[generally speaking ... include law, medicine, . nursing, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical, and biological sciences, including pharmacy and registered or certified medical technology and so forth,” 29 C.F.R. § 541.301(e)(1).

Here, the district court found that plaintiffs work required knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as required by federal regulations: As a funeral, director and embalmer, plaintiff had to be licensed by the state.

In order to become licensed, plaintiff had to complete a year of mortuary science school and two years of college, including classes such as chemistry and psychology, take national board tests covering embalming, pathology, anatomy, and cosmetology, practice as an apprentice for one year, and pass an examination given by the state. Rutlin, 29 F.Supp.2d at 798. We agree with the district court. Rutlin completed a specialized course of instruction directly relating to his primary duty of embalming human remains. The fact that Rutlin was not required to obtain a bachelor’s degree fails to persuade us otherwise.

The FLSA regulations do not require that an exempt professional hold a bachelor’s degree; rather, the regulations require that the duties of a professional entail advanced, specialized knowledge. We conclude that a licensed funeral director and embalmer must have advanced, specialized knowledge in order to perform his duties. Rutlin argues, however, that even if a licensed funeral director and embalmer’s duties are considered professional, he spent only fifteen hours a week actually embalming bodies and directing funerals.

Rutlin thus contends that his primary duties were not professional because those duties consisted of general upkeep of the funeral home. The district court disagreed, finding that even if Rutlin’s other, non-professional duties took more than fifty percent of his working time, his professional duties were of principal importance to Prime Succession and, therefore, constituted his primary duties. Again, we agree with the district court.

Although the amount of time an employee spends in the performance of particular tasks is a useful guide to determining that employee’s primary duty, see 29 C.F.R. § 541.103, “courts evaluate whether an employee’s responsibilities constitute his primary duty based on the importance of the duties, the frequency with which they require the employee to exercise discretion, and the relative freedom of the employee from supervision, as well as the percentage of time the employee spends performing them,” Piscione v. Ernst & Young,, 171 F.3d 527, 545 (7th Cir.1999).

Here, it is clear that Rutlin’s duties that were of principal importance to Prime Succession were those related to directing funerals and embalming bodies. Accordingly, these were Rutlin’s primary- duties. The fact that Rutlin performed collateral tasks, even if those tasks took more time than his primary duties, does not change this fact. See Reich, 993 F.2d at 742. Turning to the third prong of the short test for determining whether Rutlin is an exempt professional, we must consider whether Rutlin’s job required that he exercise discretion and independent judgment.

In this respect, the district court found: This claim is supported by the nature of plaintiffs duties, including counseling grieving families, and removing, embalming and cosmetizing bodies, and by the fact that plaintiff was often unsupervised in those duties. While plaintiff gained expertise in his work over the course of his employment, such expertise does not change the professional nature of plaintiffs work, or eliminate the discretion and judgment plaintiff exercised in performing his duties.

Rutlin contends that embalming is “routine and contained within well-defined parameters.” He asserts that the techniques of embalming have changed very little over the past thirty years, and notes that Michigan has no continuing education requirement for his profession. Prime Succession, on the other hand, claims that several of Rutlin’s responsibilities, such as removing bodies, counseling families, arranging funerals and visitations, cosmetizing bodies, and the actual embalming process, require discretion and judgment.

Prime Succession further claims that Rutlin was unsupervised in performing these duties and that he was in charge of the funeral home when the manager was absent. The exercise of discretion and independent judgment “involves the comparison and the evaluation of possible courses of conduct.” 29 C.F.R. § 541.207. The Fifth Circuit found that athletic trainers met this standard because they determined whether an athlete could continue playing following an injury, assessed the extent of an injury, and communicated with parents and coaches, among other things. See Owsley, 187 F.3d at 525-27.

Similarly, the Tenth Circuit found that game wardens exercised discretion and judgment because they have little supervision, manage their own time each day, and make their own analyses of wildlife populations and their needs. See Reich, 993 F.2d at 743. In the present case, we conclude that Rutlin exercised discretion and independent judgment in performing his duties.

Rutlin was responsible for supervising and coordinating the removal of bodies from residences, hospitals and nursing homes; organizing, directing, and supervising funerals; performing embalming procedures, adjusting those procedures to the condition of the deceased; and counseling families. As noted by the Seventh Circuit, the duties of a licensed funeral director and embalmer “required consistent exercise of discretion and judgment and specialized knowledge in his field.” Szarnych, 1998 WL 382891, at *1.

In sum, we conclude that Rutlin was a professional for pay periods I through IV and, therefore, exempt from the overtime provisions of the FLSA. B. Rutlin also complains that he should have been compensated for time spent on call. The district court rejected this claim, finding that Rutlin’s on-call time was not so restrictive as to require pay. At the outset, we note that Rutlin’s claim for on-call compensation is applicable to pay period V only, because we have determined that Rutlin was an exempt professional for pay periods I through IV. See 29 U.S.C. § 213(a)(1); Aiken v.

City of Memphis, 190 F.3d 753, 760 (6th Cir.1999) (stating that on-call time can be considered overtime pursuant to 29 U.S.C. § 207(a)), cert. denied, — U.S. -, 120 S.Ct. 1164, 145 L.Ed.2d 1075 (2000). Accordingly, the following discussion applies only to pay period V. An employee must be compensated for on call time spent “predominantly for the employer’s benefit.” Aiken, 190 F.3d at 760. “[T]he question in on-call cases is whether the employer’s restrictions on [its employees’] time prevent the employees from effectively using the time for personal pursuits.” Id.

To be considered work time, an employee’s on-call time must be “severely restricted.” Id. This determination is fact-specifíc, and the circumstances of each case must be considered. Id. “The fact that some of the plaintiffs’ activities have been affected by the policy is not sufficient to make on-call time compensable. The plaintiffs must show that the policy is so onerous as to prevent them from effectively using their free time for personal pursuits.” Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 611 (6th Cir.1992).

Here, Rutlin claims that he was expected to remain at home while on call, where he was required to answer the funeral home’s calls, which were forwarded to his house. Rutlin claims that he answered an average of fifteen to twenty calls per night for Prime Succession while on call, spending approximately one hour per night on the phone. Rutlin claims that his on call duties prevented him from drinking alcohol, visiting his children, or boating, and that his meals, evening activities, and sleep were disrupted by his on-call duties.

Prime Succession, on the other hand, contends that Rutlin was free to engage in personal activities while on call. Prime Succession points to Rutlin.’s testimony that he could switch on call shifts “most of the time” when needed. Prime Succession also claims that it gave Rutlin a pager to allow him to leave his home if desired. We agree with Rutlin that, for pay period V, he should be compensated for the time spent answering the fifteen to twenty phone calls he received per night. Answering these phone calls was not typical on-call time; rather, Rutlin was actually working, albeit from home.

There is no question that the time Rutlin spent on those phone calls was primarily for the benefit of Prime Succession; therefore, Rutlin should be compensated for that time. As for the other time spent on call, we agree with the district court that the restrictions on Rutlin were not so onerous as to require compensation. Rutlin was free to use that time for personal pursuits. See Martin, 968 F.2d at 611.

Accordingly, we reverse the judgment of the district court as to this issue and remand the case to the district court to determine appropriate compensation for the time Rutlin spent answering phone calls while on call during pay period V. IV. Finally, Rutlin claims that he and Prime Succession entered into a contract providing that Rutlin would be paid overtime for pay periods I through IV. Even if Rutlin is a professional pursuant to the FLSA, the parties are free to enter into an agreement for overtime compensation.

However, the contract to which Rutlin refers, which appears to be an employee booklet, merely states that non-exempt employees will be paid overtime. Because Rutlin is an exempt professional, there is no contractual provision awarding him overtime compensation. We affirm the district court’s judgment as to this issue. V. For the foregoing reasons, we AFFIRM in part and REVERSE in part, and REMAND to the district court for the determination of Rutlin’s on-call compensation for pay period V. .

The FLSA regulations state that: An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. 29 C.F.R. § 785.17.