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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fred Meyer of Alaska, Inc. v. Bailey (11/05/2004) sp-5840

Fred Meyer of Alaska, Inc. v. Bailey (11/05/2004) sp-5840

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

FRED MEYER OF ALASKA, INC.,   )
                              )       Supreme   Court   Nos.   S-
10958/10968
             Appellant/            )
             Cross-Appellee,       )    Superior Court No.
                              )    3AN-98-05471 CI
     v.                       )
                              )    O P I N I O N
RON BAILEY,                   )
                              )    [No. 5840 - November 5, 2004]
             Appellee/             )
             Cross-Appellant.      )
                              )



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Dan A. Hensley, Judge.

          Appearances:  Peter Gruenstein, Gruenstein  &
          Hickey,  Anchorage,  and  James  R.  Dickens,
          Miller  Nash  LLP, Seattle,  Washington,  for
          Appellant/Cross-Appellee.  John E. Casperson,
          Holmes,  Weddle  &  Barcott,  Anchorage,  for
          Appellee/Cross-Appellant.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.


I.   INTRODUCTION

          This appeal arises out of Fred Meyers classification of

manager Ron Bailey as an exempt employee and therefore ineligible

for  overtime  pay  under the Alaska Wage and  Hour  Act  (AWHA).

Bailey opted out of a class action for overtime pay because of  a

threat by his store manager.  Within two years of being told by a

different manager that participation in a court action would  not

jeopardize  his  job,  Bailey filed a lawsuit  claiming  overtime

compensation.   Fred  Meyer appeals the superior  courts  finding

that  Bailey  was  not  exempt, as well as  the  superior  courts

allowance  of  claims not within the statute of limitations.   It

also challenges the superior courts admission of an expert report

and  its  finding  that  Fred Meyer did not  show  by  clear  and

convincing evidence that it acted in good faith.  Bailey  appeals

the  superior  courts  failure  to  award  prejudgment  interest.

Because the superior court did not err when it found that  Bailey

was not exempt, we affirm that ruling.  We also conclude that the

superior  court did not err in its determination that Fred  Meyer

failed to show by clear and convincing evidence that it acted  in

good  faith.   Because Bailey claims that he was not notified  of

the  entry  of judgment, we remand so that he may be provided  an

opportunity to submit his calculation of prejudgment interest and

his cost bill.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Ron Bailey began working at the Anchorage Fred Meyer on

Dimond  in June 1985.  He was transferred to the home electronics

department in late 1985 and remained in home electronics until he

left  Fred Meyer in 1997.  Bailey was promoted to manager of  the

department in August 1989 and was transferred  to the Fred  Meyer

in  Juneau  in March 1990 as the manager of the home  electronics

department.   Although  Bailey  received  a  weekly  salary  with

bonuses,  he did not receive any overtime compensation.   In  May

1996  Bailey transferred to the Anchorage Fred Meyer on  Northern

Lights.

          In  May  1991, while Bailey was working at  the  Juneau

store, a class action complaint in a suit entitled Adams v.  Fred

Meyer claiming overtime violations under the Alaska Wage and Hour

Act  was  filed against Fred Meyer.1  The manager of  the  Juneau

store,  Keith  Flynn, told all department managers that  if  they

stayed  in the lawsuit, they would not be promoted.  All  of  the

          managers, including Bailey, excluded themselves from the class.

Bailey  signed  his  request for exclusion in  May  1996.   After

Bailey moved to the Northern Lights store, his new store manager,

Nancy  Carey,  contradicted Flynn and assured Bailey  that  there

would be no retaliation if he participated in the class action.

     B.   Procedural History

          Bailey  filed this lawsuit against Fred Meyer on  April

15, 1998.  Fred Meyer moved to exclude as time barred evidence of

overtime  claims  prior to April 15, 1996.   The  superior  court

denied Fred Meyers motion.

          A  bench  trial took place on October 23 and 24,  2000,

and  Superior Court Judge Dan A. Hensley issued his oral decision

on  November 22, 2000. The superior court determined that  Bailey

was  not  an  exempt employee and was thus entitled  to  overtime

compensation.   Fred Meyer sought amendment of the  judgment  and

reconsideration,  arguing  that the  superior  court  incorrectly

tolled  Baileys claim and erroneously found that Bailey  was  not

exempt.  The superior court denied Fred Meyers motion.

          The parties filed supplemental pleadings on two issues:

the regular hourly rate applicable to Bailey and Fred Meyers good

faith  defense.  Fred Meyer objected to the trial court receiving

a  report  that  was prepared by a defense expert  in  Adams  and

appended  to  Baileys supplemental pleading, but the trial  court

considered the defense experts advice to Fred Meyer that the home

electronics  managers should not be considered  exempt.   In  its

supplemental  filing,  Fred Meyer also  addressed  the  issue  of

prejudgment  interest, although the court had  not  directed  the

parties to do so.  The court limited Baileys award of prejudgment

interest  under  AS  09.30.070(b)  and  although  Bailey   sought

reconsideration on this issue, this relief was denied.

          On  December  22, 2002, the trial court  entered  final

judgment  for Bailey in the amount of $254,056.34, half  of  this

being liquidated damages, and awarded him $70,087.50 in attorneys

fees.   It  also gave Bailey fifteen days to submit his  proposed

calculation of prejudgment interest.  Baileys counsel claims that

he did not receive a copy of the judgment and did not learn of it

until  he received Fred Meyers notice of appeal.  Although Bailey

promptly   moved  to  file  a  late  calculation  of  prejudgment

interest,  the superior court did not act on Baileys  motion  and

Bailey cross-appeals on this issue.

III. DISCUSSION

     A.   Standards of Review

          We  set aside a lower courts factual findings only when

they  are clearly erroneous.2  We determine that factual findings

are  clearly  erroneous when, after a review of the record  as  a

whole,  we  are left with a definite and firm conviction  that  a

mistake has been made.3  In a mixed question of law and fact,  we

review  the  legal question separately, applying our  independent

judgment to adopt the legal rule that is most persuasive in light

of precedent, reason, and policy.4

     B.   The  Superior  Court  Did Not Err when  It  Found  that
          Bailey Was Not Exempt.
          
          Fred  Meyer  appeals the superior courts  finding  that

Bailey  was not an executive employee who was exempt from payment

of overtime under the AWHA.  Fred Meyer relies principally on the

argument that Baileys tasks were directly and closely related  to

management duties.5

          Under  the  AWHA,  employees who work more  than  eight

hours  in a day or forty hours in a week are entitled to overtime

pay6  unless  an  exemption  applies.7   One  of  the  exemptions

excludes  an  individual  employed  in  a  bona  fide  executive,

administrative,   or   professional   capacity.8    The    Alaska

Administrative  Code  defines an exempt executive  employee9  and

considers the amount of time that such an employee can  spend  on

nonmanagerial tasks.  An exempt executive employee  in  a  retail

establishment is one who does not devote more than 40 percent  of

the  employees weekly hours to activities that are  not  directly

and  closely  related to the work described in this  paragraph.10

The  burden is on the employer to prove beyond a reasonable doubt

          that the employee is exempt.11  And we have determined that

[e]xemptions are to be narrowly construed against the employer.12

          Neither  the  AWHA  nor the Alaska Administrative  Code

defines the term directly or closely related, but the definitions

section  of  the AWHA does provide that any terms not defined  in

the  AWHA  or  in the regulations shall be defined  as  they  are

defined  in  the  federal Fair Labor Standards Act  of  1938,  as

amended,  or  the regulations adopted under it.13   The  Code  of

Federal  Regulations describes and illustrates  the  phrase  work

directly  or  closely related.14  29 C.F.R.  541.108(e)  provides

that  certain  activities  on the sales  floor  are  not  closely

related to management work, except when they are done to train or

demonstrate.   A  supervisors actual  participation,  except  for

supervisory   training  or  demonstration   purposes,   in   such

activities as making sales to customers, replenishing  stocks  of

merchandise on the sales floor, removing merchandise from fitting

rooms  and  returning  to  stock  or  shelves,  however,  is  not

[directly  and  closely  related to  managerial  and  supervisory

functions].15

          The  federal  regulations note that it is  one  of  the

objectives of [the regulation] to exclude from the definition [of

executive]   foremen   who  hold  dual  or  combination   jobs,16

distinguishing production work from true managerial  functions.17

Tasks  such  as recordkeeping, setup work, inspecting, examining,

and observing actually may be production work when they take up a

large  part of the employees time and are not a function directly

and  closely  related  to the supervisory or  managerial  duties,

making  the  employee a combination foreman  setup  man,  .  .  .

floorman-salesperson, . . . rather than a bona fide executive.18

          The  question before the trial court in this  case  was

whether  Bailey devoted more than forty percent of  his  time  to

work  that  was  not directly and closely related  to  management

work.19  In its oral findings, the superior court explained  that

because directly or closely related is not defined in Alaska law,

          it looked to federal law as guidance.  The superior court, citing

29  C.F.R.  541.108(g), accurately characterized the test  to  be

applied:

          [The]  federal  regulations  explain  that  a
          working   supervisor  in   a   large   retail
          establishment  who actually  participates  in
          sales,  stocking  and  those  kind  of  floor
          activities,   that  those   kind   of   floor
          activities   are  not  closely   related   to
          managerial functions as distinguished from  a
          working supervisor who observes his employees
          on   the  floor,  spot  checks  in  order  to
          evaluate the employees conduct.
          
In  its oral findings, the superior court focused on testimony by

Fred  Meyers employees that it is important to have a  supervisor

on the floor to provide service to the customers, . . . to act as

a  role  model  so that other sales personnel do a good  job  and

.  .  . so that customers can ask the manager questions and  that

Baileys  strongest  point as . . . a manager,  was  his  customer

service  skills.   The superior court found  that  Bailey  worked

substantially  more  than 40 percent of  his  time  and  actually

approached 60 percent performing nonmanagement tasks,  making  it

clear  that  Mr.  Bailey is not exempt.  And while  the  superior

court acknowledged that Baileys floor activities provided a model

to  his  employees, it concluded that Bailey was performing  dual

roles; thus, pursuant to the federal regulations, Bailey was  not

exempt.

          Fred   Meyer   relies  on  our  decision  in   American

Restaurant Group v. Clark to argue that the superior court failed

to  consider the nature of the employers business and the role of

management  in the particular business when evaluating  how  much

time Bailey spent on nonmanagerial work.20  In American Restaurant

Group,  we reversed summary judgment against the employer because

there was a factual issue as to how much time the employees spent

performing  tasks  that were not directly or closely  related  to

their executive duties.21  We announced that the question whether

the  employees  activities were closely and directly  related  to

their  management  duties  is a factual  question.22   Here,  the

          superior court conducted a trial, hearing testimony from Bailey

and  both  of his supervisors, Keith Flynn and Nancy  Carey.   It

heard  substantial testimony that Bailey spent much of  his  time

doing nonmanagerial work, and it made an express finding that Mr.

Baileys  actual  time  on the floor doing sales,  restocking  and

similar  work approached 60 percent.  Because the superior  court

applied  the  correct  law to the facts and because  its  factual

finding  was not clearly erroneous, we conclude that the superior

court  did  not err when it found that Bailey was not  an  exempt

executive employee.

     C.   The Superior Court Did Not Err by Permitting Bailey  To
          Recover for All of His Overtime Hours.
          
          Fred  Meyer  argues that Bailey should only  have  been

permitted to recover for those overtime claims arising during  or

after  the April 15, 1996 pay period.  Fred Meyer relies  on  the

statute  of  limitations,  arguing that the  two-year  limitation

period23 bars any of Baileys overtime claims that arose more than

two  years  prior  to Baileys April 15, 1998  filing.   Thus,  it

contends the superior court erred by considering Baileys pre-1996

claims.   But  Bailey presented evidence, and the superior  court

found, that Bailey opted out of the class action covering his pre-

1996 claims because of the threat of retaliation by Baileys store

manager, Keith Flynn.  The superior court further found  that  in

May 1996, when his new store manager assured him that there would

be  no  retaliation for participation in the class action, Bailey

no longer had a reasonable basis to be concerned about the threat

and the court concluded that the statute of limitations began  to

run  in  May 1996.  Bailey brought his case in April  1998.   The

superior  court  determined that Bailey had  the  full  statutory

period to file once the threat was removed.

          Fred  Meyer contends that the superior court improperly

applied  the doctrine of equitable tolling to Baileys  situation,

arguing  that  equitable  estoppel is the  appropriate  equitable

remedy.  Bailey responds that the superior courts decision may be

sustained under equitable tolling principles.

          As  we evaluate Baileys situation, we take note of  the

general   principles  relating  to  the  statute  of  limitations

defense.   In Fred Meyer v. Adams, we observed that we look  upon

the  defense  of  statute of limitations with disfavor  and  will

strain neither the law nor the facts in its aid.24  In Adams,  we

also  described the purposes of limitations periods:  to  provide

defendants with notice of the nature of adverse claims and to bar

plaintiffs who have slept on their rights.25

          The   doctrine   of  equitable  tolling  relieve[s]   a

plaintiff from the bar of the statute of limitations when he  has

more  than one legal remedy available to him26 so that after  the

plaintiff adopts a single course of action which is dismissed  or

otherwise fails, courts generally allow the plaintiff to pursue a

second remedy based on the same right or claim.27  The statute of

limitations  is  thus tolled during the pendency of  the  initial

defective action, giving the plaintiff the full statutory  period

to file once tolling ceases.28 In such circumstances, the statute

is  equitably  tolled if (1) pursuit of the initial remedy  gives

defendant  notice of plaintiffs claim, (2) defendants ability  to

gather evidence is not prejudiced by the delay, and (3) plaintiff

acted reasonably and in good faith.29

          In  Baileys  case  the superior court found  that  Fred

Meyer,  through its coercive conduct, forced Bailey  out  of  the

existing class action.  Generally, equitable tolling applies when

the  plaintiff  files an action in court after an  administrative

proceeding  or  initial  court  action  is  dismissed  or  proves

unavailing.30  But this principle applies to Baileys situation as

well.   The class action was Baileys initial remedy:  Once Bailey

was  forced  to opt out of the class action, this initial  remedy

proved  unavailing.   As  the superior court  found,  the  threat

existed and Mr. Baileys failure to file a lawsuit was reasonable.

The statute of limitations began to run when the threat abated in

May  1996 and Bailey was free to pursue his second legal  remedy,

an  individual  action. Because of Fred Meyers coercive  conduct,

          Bailey was foreclosed from participating in the initial remedy

available  to him; he only later discovered that he could  pursue

an   individual  claim  against  Fred  Meyer  without   fear   of

retaliation.   Thus,  under equitable tolling principles,  Bailey

had the full statutory period to file his claim.

          The three additional requirements for equitable tolling

notice  to  the  defendant  of  the  plaintiffs  claim,  lack  of

prejudice to the defendant, and reasonable, good faith conduct on

the  part of the plaintiff  are satisfied here.  Baileys  initial

inclusion  in  the class claiming unpaid overtime  provided  Fred

Meyer with notice of Baileys legal claim.31  For the same reason,

equitable   tollings  second  requirement,  that  the  defendants

ability  to gather evidence not be prejudiced by the delay,32  is

satisfied.   Fred  Meyers defense of the  class  action  provided

ample  opportunity  to gather evidence on  the  issue  of  unpaid

overtime  for  electronics managers,  and  there  is  nothing  to

indicate  that it could not furnish evidence on Baileys  specific

claim for unpaid overtime hours.  Tolling also requires that  the

plaintiff act reasonably and in good faith.33  This third element,

too,  is satisfied:  Bailey filed his individual suit within  the

two-year limitations period after the disability abated.  And  in

Dayhoff  v. Temsco Helicopters, we concluded that an employee  is

entitled  to the benefit of the full statutory period  after  the

circumstances  which justify equitable tolling  abate,  rejecting

the  defendants claim that the plaintiffs failed to exercise  due

diligence  as  a matter of law because they failed to  file  suit

immediately   after  the  initial  remedy  proved   unavailing.34

Accordingly,  we affirm the superior courts finding  that  Bailey

can recover for all of his overtime hours.

     D.   The  Superior  Court Did Not Err in Finding  that  Fred
          Meyers  Classification of Bailey as Exempt Was  Not  in
          Good Faith.
          
          Fred  Meyer  also appeals the superior  courts  finding

that  Fred Meyer failed to produce clear and convincing  evidence

that  it  acted  in good faith when it classified  Bailey  as  an

          exempt employee, resulting in Fred Meyers liability for

liquidated  damages and reasonable attorneys  fees.   Fred  Meyer

contends  that it met its burden of demonstrating good  faith  by

clear  and  convincing  evidence through  testimony  from  former

senior  vice president for human resources, Keith W.  Lovett,  as

well  as  evidence of Fred Meyers prompt evaluation of  remaining

salaried  positions.   And  Fred Meyer  challenges  the  superior

courts  admission of and reliance on a report prepared by defense

counsels  expert in the earlier Adams overtime case against  Fred

Meyer   which   concluded  that  photo  electronics    managerial

positions should not be classified as exempt.

          Alaska  Statute  23.10.110(d) gives discretion  to  the

court  to  decline to award liquidated damages if  the  defendant

shows  by clear and convincing evidence that the defendant  acted

in  good  faith.35   In  cases where the plaintiff  prevails,  AS

23.10.110(e) mandates that the court award attorneys fees  unless

the  defendant  shows by clear and convincing evidence  that  the

defendant acted in good faith.36

          In  its  findings rejecting Fred Meyers claim  of  good

faith, the superior court recognized Fred Meyers argument that it

had  reviewed its pay structures in order to comply with the AWHA

and its submission of a January 6, 1997 memorandum describing the

changes undertaken in an effort to comply with the statute.   But

the  superior  court relied on the opinion of Stan  Owings,  Fred

Meyers own expert in Adams, who informed Fred Meyer in 1995  that

the   position  of  photo  electronics  manager  should  not   be

classified  as  exempt.  The superior court concluded  that  Fred

Meyer ignored Owingss determination.

          Fred  Meyer contends that the superior court  erred  in

admitting  an  expert  report by Owings  that  was  prepared  for

defense  counsel  in Adams.  Specifically, the  report  described

Owingss   review  of  Fred  Meyers  various  department   manager

positions  and  concluded that while most of the  positions  were

properly   classified  as  exempt  under  the  AWHA,  the   photo

          electronics manager did not meet the AWHA requirements for exempt

status  because  the photo electronics manager  spent  more  than

forty  percent of his or her time on non-exempt job  duties.   In

Adams,  Owings testified for Fred Meyer after being  deposed  and

having  his report produced.  In this case, Owings was not listed

as  an expert witness for Fred Meyer; instead, he was included in

Baileys  amended list of lay witnesses.  Although Owings did  not

testify  at  Baileys trial on the question of whether Bailey  was

exempt,  in  the  post-trial  proceedings  Bailey  submitted   an

affidavit  from  Owings,  as well as  Owingss  Adams  report,  in

support of Baileys contention that Fred Meyer did not act in good

faith.

          Fred Meyer argues that Alaska Civil Rule 26(b)(4)(B),37

the rule limiting access to non-testifying experts except upon  a

showing  of  exceptional  circumstances,  should  have  prevented

Baileys  use  of Owingss report.  Fred Meyer claims that  because

Bailey  did not show exceptional circumstances to justify  access

to  Owingss report, the report was improperly admitted.   But  as

Bailey  correctly notes, Civil Rule 26(b)(4)(B)  does  not  apply

because Owings was not an expert witness for either Fred Meyer or

Bailey;  instead,  his report was used to demonstrate  that  Fred

Meyer was notified that Baileys position should not be classified

as exempt and failed to take corrective action.

          Fred  Meyer also contends that as a lay witness, Owings

possessed  limited  personal knowledge of the  facts  surrounding

managerial duties.  But Owingss report was not offered to support

Baileys  contention  that he was not an exempt  manager;  it  was

offered  solely to demonstrate Fred Meyers state of mind  and  to

show  Fred  Meyers  lack  of good faith and  lack  of  reasonable

efforts  to comply with Alaska law.  Fred Meyer also argues  that

the report should have been excluded as hearsay under Alaska Rule

of  Evidence 802.38  But Bailey did not offer the report for  the

truth of the matters stated;39 rather he offered it to show  that

Fred Meyer had notice of its potential violations of Alaska law.

          Fred  Meyer also points to the declaration of Keith  W.

Lovett  which described the actions that Fred Meyer  took  during

and  after the Adams litigation.  But the court found that Lovett

offered differing recollections of the companys efforts to comply

with  the  AWHA; Lovett testified that he reviewed  the  salaried

positions  around  January 1997 but in a 1997  deposition  Lovett

testified that, to his knowledge, the company had never  hired  a

consultant  or  studied whether the company  was  complying  with

Alaska law.  The court concluded that the contradictory testimony

did  not  amount to clear and convincing evidence of Fred  Meyers

good faith.

          In  finding that Fred Meyer did not act in good  faith,

the  superior court properly relied on Owingss report  and  found

that  Fred Meyers primary witness, Lovett, was not credible.   We

affirm the superior courts award of attorneys fees and liquidated

damages because the superior courts determination that Fred Meyer

failed to produce clear and convincing evidence of good faith was

not clearly erroneous.

     E.   Bailey Should Be Permitted To Seek Prejudgment Interest

          and Costs.

          Bailey  argues  that  he  is  entitled  to  prejudgment

interest and costs even though he did not file for either  within

the  permissible time.40  Bailey claims that his untimely  filing

resulted from the fact that he never received the superior courts

final judgment.41

          Fred  Meyer  argues that a motion to alter or  amend  a

judgment  must  be  made  in a timely fashion,  after  which  the

judgment  cannot  be  disturbed.42  While  the  general  rule  is

certainly  to  leave final judgments undisturbed,  in  this  case

Bailey  apparently had no opportunity to comply with  the  courts

request for submission of interest or with Rule 79s allowance for

submission  of  a cost bill and  moved for relief upon  receiving

the  judgment.  If the superior court finds this to be the  case,

it  is  appropriate  to  permit Bailey to  file  his  prejudgment

          interest and costs.43

          Because   Bailey   claims   that   his    motion    for

reconsideration   was  not  untimely  and  because   Bailey   was

previously denied an opportunity to brief the issue, we remand so

that the superior court can consider whether Bailey was, in fact,

improperly  denied  the  opportunity to comply  with  the  courts

requested submission and with Civil Rule 79, and can then  choose

the  correct  date  for  interest to begin  to  accrue  based  on

briefing by both parties.

 IV. CONCLUSION

          Because  the superior court did not err when  it  found

that Bailey was exempt or when it permitted Bailey to recover for

all  of  his  overtime  claims,  we  AFFIRM  the  determinations.

Because the superior courts finding that Fred Meyer had not shown

by  clear and convincing evidence that it acted in good faith was

not  clearly  erroneous, we AFFIRM the finding.   Because  Bailey

claims he was not notified of the entry of judgment and the  need

to  file prejudgment interest calculations and his cost bill,  we

REMAND  for the superior court to determine whether Bailey should

be provided with an opportunity to seek such costs.

_______________________________
     1    Alaska Superior Court Case No. 3AN-90-10286 Civil.

     2    Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

     3    Id. (citation and internal quotations omitted).

     4    Wyller v. Madsen, 69 P.3d 482, 485 (Alaska 2003).

     5    See Am. Rest. Group v. Clark, 889 P.2d 595, 597 (Alaska
1995).

     6    AS 23.10.060.

     7    AS 23.10.055.

     8    AS 23.10.055(9).

     9    8 AAC 15.910(7).

     10     8  AAC 15.910(7)(E).  The paragraph describes  duties
such as:  management of the enterprise or a branch thereof (8 AAC
15.910(7)(A)); directing the work of two or more employees (8 AAC
15.910(7)(B));  the authority to hire and fire employees  (8  AAC
15.910(7)(C)); and the exercise of discretionary authority (8 AAC
15.910(7)(D)).

     11     Dayhoff  v. Temsco Helicopters, Inc., 848 P.2d  1367,
1371-72  (Alaska  1993).  Contrary to the  explicit  language  in
Dayhoff, Fred Meyer argues that the AWHA requires proof only by a
preponderance of the evidence.

     12    Id. at 1372 (citation and internal quotations omitted).

     13     AS 23.10.145; see Whitesides v. U-Haul Co. of Alaska,
16  P.3d  729, 732 (Alaska 2001) (noting that AWHA provides  that
terms not defined in the AWHA or in regulations adopted under  it
shall  be  defined  as  they  are defined  in  the  FLSA  or  the
regulations adopted under it).

     14    29 C.F.R.  541.108.

     15    29 C.F.R.  541.108(e).

     16    29 C.F.R.  541.108(g).

     17    Id.

     18    Id.

     19    8 AAC 15.910(7)(E).

     20    889 P.2d 595, 599 (Alaska 1995).

     21    Id. at 597.

     22    Id. at 598-99.

     23    AS 23.10.130 provides:

          An  action  for unpaid minimum wages,  unpaid
          overtime compensation, or liquidated  damages
          under   AS  23.10.050  23.10.150  is  forever
          barred unless it is started within two  years
          after  the cause of action accrues.  For  the
          purposes   of  this  section  an  action   is
          considered to be started on the date when the
          complaint is filed.
          
     24    963 P.2d 1025, 1027 n.6 (Alaska 1998).

     25    Id. at 1028.

     26     Dayhoff  v. Temsco Helicopters, Inc., 772 P.2d  1085,
1087  (Alaska  1989) (citing Gudenau & Co. v. Sweeney  Ins.,  736
P.2d 763, 768 (Alaska 1987)).

     27    Gudenau, 736 P.2d at 768.

     28    Id.

     29    Dayhoff, 772 P.2d at 1087.

     30     E.g., id. at 1087-88 (determining that Department  of
Labor proceedings are alternative administrative remedy that  may
toll  statute of limitations); Hosogai v. Kadota, 700 P.2d  1327,
1331-33  (Ariz. 1985) (superseded by statute, see Jepson v.  New,
792  P.2d 728 (Ariz. 1990)); Addison v. State of California,  578
P.2d  941, 943 (Cal. 1978); Collier v. City of Pasadena, 191 Cal.
Rptr. 681, 684-85 (Cal. App. 1983).

     31    Cf. Gudenau, 736 P.2d at 768.

     32    Id.

     33    Id.

     34    Dayhoff, 772 P.2d at 1088 n.6.

     35    Alaska Statute 23.10.110(d) provides:

          In  an  action under (a) of this  section  to
          recover   unpaid  overtime  compensation   or
          liquidated  damages for unpaid  overtime,  if
          the  defendant shows by clear and  convincing
          evidence that the act or omission giving rise
          to the action was made in good faith and that
          the   employer  had  reasonable  grounds  for
          believing that the act or omission was not in
          violation  of  AS 23.10.060,  the  court  may
          decline  to award liquidated damages  or  may
          award  an  amount of liquidated damages  less
          than  the  amount  set out  in  (a)  of  this
          section.
          
     36    Alaska Statute 23.10.110(e) provides in relevant part:

          If  the  plaintiff prevails in an action  for
          unpaid  overtime compensation  under  (a)  of
          this   section,   the   court   shall   award
          reasonable  attorney fees  to  the  plaintiff
          unless  the  defendant  shows  by  clear  and
          convincing evidence that the act or  omission
          giving  rise to the action was made  in  good
          faith  and  that the defendant had reasonable
          grounds  for  believing  that  the   act   or
          omission was not in violation of AS 23.10.060
          . . . .
          
     37    Civil Rule 26(b)(4)(B) provides in relevant part:

          A  party may, through interrogatories  or  by
          deposition, discover facts known or  opinions
          held  by  an expert who has been retained  or
          specially  employed  by  another   party   in
          anticipation of litigation or preparation for
          trial and who is not expected to be called as
          a  witness at trial, only as provided in Rule
          35(b)   or  upon  a  showing  of  exceptional
          circumstances under which it is impracticable
          for  the  party seeking discovery  to  obtain
          facts  or  opinions on the  same  subject  by
          other means.
          
     38     Alaska Rule of Evidence 802 states:  Hearsay  is  not
admissible  except  as provided by these rules,  by  other  rules
prescribed  by the Alaska Supreme Court, or by enactment  of  the
Alaska Legislature.

     39     Alaska Rule of Evidence 801(c) defines hearsay  as  a
statement,  other than one made by the declarant while testifying
at  the trial or hearing, offered in evidence to prove the  truth
of the matter asserted.

     40     The  trial court provided fifteen days for Bailey  to
submit  the  prejudgment interest calculation and Civil  Rule  79
gives  counsel  ten days to seek costs.  Rule 79(b)  provides  in
part:

          To  recover costs, the prevailing party  must
          file  and serve an itemized and verified cost
          bill,  showing the date costs were  incurred,
          within  10 days after the date shown  in  the
          clerks  certificate  of distribution  on  the
          judgment.  Failure  of a party  to  file  and
          serve  a  cost bill within 10 days,  or  such
          additional time as the court may allow,  will
          be  construed as a waiver of the partys right
          to recover costs.
          
     41     The  superior courts inaction on this issue may  have
been  because it thought that it had no jurisdiction to  consider
the issue once it was up on appeal.

     42     Fred Meyer cites to several rules in support  of  its
contention:  Civil Rule 52(b) provides that a motion to amend may
be made not later than 10 days after the date shown in the clerks
certificate  of distribution on the judgment.  Civil  Rule  59(f)
says that a motion to alter or amend the judgment shall be served
not  later  than 10 days after the entry of the judgment.   Civil
Rule  58.1(c)(3)  makes the date of notice of judgment  the  date
shown  in  the clerks certificate of distribution of the  written
judgment.

     43      Because  we  are  remanding  for  consideration   of
prejudgment  interest  and  because  the  parties  never  had  an
opportunity to present formal briefing on that topic,  the  trial
court  will  need  to  consider two related issues:   the  proper
prejudgment  interest  rate to use in  its  calculation  and  the
correct date for prejudgment interest to begin to accrue.