UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTEN SILLOWAY; CHRISTA No. 22-16079 DURAN; BRIGITTA VAN EWIJK, D.C. No. Plaintiffs-Appellants, 3:20-cv-07400-RS

v. OPINION CITY AND COUNTY OF SAN FRANCISCO,

Defendant-Appellee.

TATYANA LITVINOVA, No. 22-16568 individually and on behalf of all others similarly situated, D.C. No. 3:18-cv-01494-RS Plaintiffs-Appellants,

v. CITY AND COUNTY OF SAN FRANCISCO,

Defendant-Appellee. 2 SILLOWAY V. CITY & CNTY. OF SAN FRANCISCO

Appeals from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Argued and Submitted February 12, 2024 San Francisco, California

Filed September 11, 2024

Before: Carlos T. Bea, David F. Hamilton,* and Morgan Christen, Circuit Judges.

Opinion by Judge Hamilton; Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY**

Fair Labor Standards Act

The panel reversed the district court’s summary judgment for the City and County of San Francisco, and remanded, in two cases in which staff nurses employed by the City allege that the City violated the Fair Labor Standards Act (FLSA) by not paying them time-and-a-half for overtime work.

* The Honorable David F. Hamilton, United States Circuit Judge for the Seventh Circuit Court of Appeals, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SILLOWAY V. CITY & CNTY. OF SAN FRANCISCO 3

The FLSA provides that employees should generally receive time-and-a-half pay for working overtime, but one of the Act’s exemptions from that requirement applies to employees working in a bona fide professional capacity. The City claims that staff nurses fall into that exemption. The dispute over whether the professional-capacity exemption applies to staff nurses depends on whether the City has shown that staff nurses were paid on a “salary basis” during the relevant time. The City claims that staff nurses were compensated on a salary basis because their annual compensation figures were documented at the start of every year through employment agreements and published salary ordinances. The plaintiffs contend that the City compensated them on an hourly basis because it divided those annual figures into hourly rates and paid staff nurses only for each hour worked. The district court concluded that the annual pay figures published in the salary ordinance provided definitive evidence that the staff nurses were compensated on a salary basis. The panel held that the district court erred. To determine whether employees are compensated on a salary basis, courts must look beyond conclusory language in contracts and similar documents such as the salary ordinance. Courts must instead analyze how employees are actually paid. The proper focus for the salary basis test is whether an employee receives a predetermined amount of compensation on a weekly or less frequent basis, irrespective of any promises made in an employment contract. The panel held that material factual questions remain in dispute regarding whether the City satisfied the salary basis test as a matter of practice. Plaintiffs offered evidence 4 SILLOWAY V. CITY & CNTY. OF SAN FRANCISCO

showing that the City did not record them as working hours consistent with their full-time equivalencies in a significant number of pay periods. Those discrepancies raise material factual questions as to whethe