that the exception in subsection (6) is for an employer that makes a one-time improper deduction and then corrects its error. This provision is of no relevance in the case of an employer that, like the county of Kern, has adopted an express policy . . . .
We must acknowledge, therefore, that the clear weight of authority suggests that Naperville's corrective action was too little, too late. The deductions that Naperville made were not simply one-time slip-ups but routine matters.
Finally, Naperville has proposed a reading of the regulations that would permit even intentional (and presumably policy-driven) deductions to be excused. Naperville notes that § 541.118 (a)(6) states that the "window of correction" is available "where a deduction not permitted by these interpretations is inadvertent, or is made for reasons other than lack of work, to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future." Naperville would have us ignore the inadvertency language that has almost uniformly been deemed essential to the employment of the § 541.118(a)(6) "window." Because the phrase highlighted above is disjunctive, Naperville argues that the correction option remains open because the disciplinary deductions were clearly made "for reasons other than lack of work."
This is the reading relied upon very recently, without elaboration, in Keller v. City of Columbus, Indiana, 1991 WL 268728 (S.D. In. Dec. 13, 1991). We find more persuasive the careful analysis of this phrase accomplished in Dole, 758 F. Supp. at 905-906, rev'd on other grounds, Martin, 1991 WL 243540. The Dole court noted that we must defer to the administrator's interpretation of its own regulations, but here there has been no such interpretation. Dole, 758 F. Supp. at 905. The court went on to comment, and we agree, that the better reading of the regulation is in the conjunctive, requiring that the deductions have been made both inadvertently and for reasons other than lack of work. To read the regulation in this fashion would "prevent the incongruous situation of employers cynically undertaking corporate policies which subject the salaries of their professional, managerial and administrative employees to reduction for reasons other than lack of work, knowing that the exempt status of the affected employees would be restored through reimbursement and promise to comply, if the employer is caught." Id. at 906-07.
On a second consideration of this issue, we find that our original ruling must stand, although we agree with Naperville that our decision regarding the supervisory overtime policy should be vacated. Returning to the essentials of the FLSA for a moment, we recall that § 541.118(a) defines "salary basis" as receipt of "a predetermined amount . . . which amount is not subject to reduction because of variations in the quality or quantity of the work performed. . . . The employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked." It is clear to us that in Naperville between the date in 1986 when the FLSA came into effect and the date of the change in policy, police sergeants' paychecks were "subject to" reduction (and were reduced on several occasions) for disciplinary reasons. Naperville has not convinced us that this conduct may be excused. Consequently, we find that this policy was inconsistent with employment on a salary basis, and we deny Naperville's motion to reconsider our earlier Order granting summary judgment to the Plaintiffs.
This is a tough outcome for Naperville. This area of the law is currently churning, and federal courts issue often contradictory opinions on a daily basis. The interim final rule only begins to address the types of problems faced by local governments because of their negligence (or unwillingness) to bring their policies into line with the FLSA, but we decline to extend the reach of the interim rule's forgiveness too far beyond its language. At some point public sector employers must be held to answer for their conduct.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: January 7, 1992