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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moody v. Royal Wolf Lodge (12/14/2018) sp-7322

Moody v. Royal Wolf Lodge (12/14/2018) sp-7322

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                          

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                       



JEFF  MOODY,                                                     )  

                                                                 )                                       

                                                                      Supreme Court Nos. S-16713/16733  

                                                  

                                Appellant and                    )  

                                Cross-Appellee,                                                                                 

                                                                 )    Superior Court No. 3AN-08-07621 CI  

                                                                 )  

           v.                                                                             

                                                                 )    O P I N I O N  

                                                                 )  

                                            

ROYAL WOLF LODGE, LINDA                                                                                          

                                                                 )    No. 7322 - December 14, 2018  

                                           

BRANHAM, and CHRIS BRANHAM, )  

                                                                 )  

                                                  

                                Appellees and                    )  

                                Cross-Appellants.                )  

                                                                 )  



                                                                                                              

                                   

                     Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                  

                     Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                                

                     Appearances:                Kenneth   W.   Legacki,   Anchorage,   for  

                                                                                                             

                     Appellant/Cross-Appellee. William M. Bankston and Renee  

                                                                                                                  

                     J. Sheyko, Bankston Gronning O'Hara, P.C., Anchorage, for  

                     Appellees/Cross-Appellants.  



                                                                                                          

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                     and Carney, Justices.  



                                            

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                     This appeal involves apilot'sclaimfor unpaidovertimecompensation. The  



                                                                                                                                          

superior court concluded after a bench trial that the pilot, who flew seasonally for a  


----------------------- Page 2-----------------------

remote   wilderness   lodge,   was   a   professional   employee   and   therefore   subject   to   an  



exemption from the overtime requirements of the Alaska Wage and Hour Act (AWHA).                                                                     



We   reversed   that   decision   on   appeal,   holding   that   the   pilot   was   not   exempt,   and  

remanded the case for a determination of the overtime hours actually worked.                                                        1  



                       On remand the superior court framed the issue as whether the pilot, during  

                                                                                                                                         



his time at the lodge, was "engaged to wait or waiting to be engaged."  The superior  

                                                                                                                                     



court applied a multi-factor test and found that the pilot was "waiting to be engaged" and  

                                                                                                                                              



therefore was not entitled to overtime compensation for hours other than those he spent  

                                                                                                                                           



actually performing duties for his employer.  The court found that the pilot had worked  

                                                                                                                                       



6.4 hours of unpaid overtime but declined to award liquidated damages, finding that an  

                                                                                                                                               



exception  to  the  liquidated  damages  statute  applied  because  the  lodge  had  acted  

                                                                                                                                          



reasonably and in good faith.  The court also declined to award attorney's fees to the  

                                                                                                                                              



lodge despite the fact that it had bettered the terms of several offers of judgment.  

                                                                                                                         



                       Both parties appeal.  We conclude that the superior court did not err in its  

                                                                                                                                                



legalanalysis when determining whether thepilotwasentitledtoovertimecompensation.  

                                                                                                                                                     



We also affirmthe superior court's decision not to award attorney's fees to the employer.  

                                                                                                                                                     



But because the superior court made no findings about the lodge's subjective good faith,  

                                                                                                                                           



we remand the liquidated damages issue to the superior court for further consideration  

                                                                                                                             



of whether the good-faith exception applies.  

                                                               



II.        FACTS AND PROCEEDINGS  

                                     



           A.          Facts  



                       LindaandChris BranhamownedandoperatedRoyal WolfLodge, afishing  

                                                                                                                                        



           1          Moody  v.  Royal   Wolf  Lodge,  339  P.3d  636,  642  (Alaska  2014)  (Moody  I).  



                                                                       -2-                                                                     7322  


----------------------- Page 3-----------------------

                                                                                                                                                  2  

lodge in Katmai National Park that operated seasonally from June to late September.                                                                   



                                                                                                                                             

Employees lived there for the season, and because the lodge had no road access they  



                                                                                 3  

                                                                                     

                                                                   

depended on aircraft for materials and supplies. 



                                                                                                       

                       Royal Wolf Lodge employed Jeff Moody as a pilot for six seasons, from  

                                                                                                                           4    A  separate  

                                                                                                                                     

2002  through  2007,  to  fly  the  lodge's  de  Havilland  Beaver  aircraft. 



employment agreement covered each year.  In January 2008 the Branhams sent Moody  

                                                                                                                                        



a letter informing him that he would not be rehired for the 2008 season.  

                                                                                                                            



           B.          Proceedings  



                       1.         Trial before Judge Joannides and Moody I  

                                                                                                               



                       Moody filed a complaint against the Branhams and Royal Wolf Lodge in  

                                                                                                                                                 



May  2008,  seeking  damages under  AWHA for unpaid  overtime compensation  and  

                                                                                                                                             



liquidated damages in an equal amount.  Superior Court Judge Stephanie E. Joannides  

                                                                                       



issued a decision in June 2011 following a bench trial, making specific findings about  



Moody's job responsibilities and his other activities while at the lodge.  She found that  

                                                                                                                                              



Moody was "responsible for preparing the plane for  flights," properly loading and  

                                                                                                                                              



unloading it, flying guests to and from the lodge for fishing, and flying in "supplies and  

                                                                                                                                              



other materials," and that he sometimes volunteered for other duties around the lodge.  

                                                                                                                                                      



She also found, however, that the time he spent on tasks "not directly related to" his  

                                                                                                                                               



duties as a pilot "comprised only a small percentage of his  time."   She found that  

                                                                                                                                             



between flights Moody "was able to visit with other employees and guests while eating,  

                                                                                                                                         



use the internet, watch movies, do laundry, stay in his room, and take naps," though she  

                                                                                                                                               



recognized that the lodge's remote location meant he had to stay nearby.  

                                                                                                                              



           2           Id.  at 637.   



           3  

                             

                       Id.  



           4           Id.  

                             



                                                                        -3-                                                                7322
  


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                        A determinative issue was whether Moody was a professional employee                                                



                                                                                     5  

exempt from AWHA's overtime requirements.                                                                                                             

                                                                                         Judge Joannides decided he was and  



                                                                                                                                           

therefore was not entitled to overtime compensation.  She found that he was, however,  



                                                                                                                                                      

entitled to contract damages because his agreed salary was based on a 30-day month and  



                                                                                                                                                        

one day off per week, and it was uncontested that he did not take days off in 2006 or  



                                                                                                                                                       

2007. While awarding no overtime, Judge Joannides awarded Moody unpaid wages for  



                                                                                                                                                              

July 31 and August 31 of 2006 and 2007 and for the extra day he worked every week.  



                                                                                                                                                      

                        In Moody I we reversed Judge Joannides's determination that Moody fell  

                                                                                6   We followed United States Department  

                                                                                                                                       

under the professional employee exemption. 



of Labor advice and federal cases holding that airline pilots do not meet the definition  



of "professional employees" for the purpose of the exemption because their "primary  

                                                                                                                                            

                                                                                                                                           7   But we  

duty" - piloting an aircraft - does not require specialized academic training.                                                                         

                                                                                                                             



affirmed Judge Joannides's factual findings about the days Moody worked  and his  

                                                                                                                                                      

                                                           8   We remanded the case "for further proceedings on  

entitlement to contract damages.                                                                                                                       

                                           



whether Moody in fact worked overtime as defined by AS 23.10.060 and whether he is  

                                                                                                                                                         

entitled to recover compensation for unpaid overtime."9  

                                                                                 



                        2.          Remand proceedings before Judge Marston  

                                                                                                        



                        The case on remand was assigned to Superior Court Judge Erin B. Marston.  

                                                                                                                                                              



Following a four-day bench trial in May 2016, Judge Marston issued a written decision,  

                                                                                                                                                              



            5           Id.  at 637-38.   



            6  

                                   

                        Id. at 639-42.  



            7  

                                   

                        Id. at 641-42.  



            8  

                                   

                        Id. at 642-43.  



            9           Id.  at 642.   



                                                                           -4-                                                                     7322
  


----------------------- Page 5-----------------------

 finding that Moody had worked a total of 6.4 hours of uncompensated overtime.                                                                                                                                                                                                    To  



reach this conclusion the judge first had to determine whether Moody was "engaged to                                                                                                                                                                                                    



wait" -                        i.e., was entitled to pay while waiting for the lodge to call for his services -                                                                                                                  



 or was "waiting to be engaged" - i.e., was on his own time and not entitled to pay until                                                                                                                                                                                      



 called.    Judge Marston noted that "parties are permitted to agree on what constitutes                                                                                                                                                                  



work hours in situations where an employee lives on the work site."                                                                                                                                                                     He determined,   



however, that the contracts at issue were "unclear and inconsistent" and reflected "no                                                                                                                                                                                            



meeting of the minds" as to job requirements, number of work hours, or hourly rate.                                                                                                                                                                                                              



 Therefore, in order "[t]o determine whether Mr. Moody was engaged to wait, the court                                                                                                                                                                                        



must determine whether he was permitted to use his time for his own purposes."                                                                                                                                                                                              



                                             Judge Marston reviewed the factors set out in                                                                                                               Owens v. Local No. 169,                                               

                                                                                                                                                            10  for determining whether an employee  

Association of Western Pulp & Paper Workers                                                                                                               ,                                                                                                   



 is free to engage in personal activities, and found that Moody's job responsibilities left  

                                                                                                                                                                                                                                                                                   



him "free to do whatever he decided to do for much of the day."  The judge found that  

                                                                                                                                                                                                                                                                                  



 "none of the employment agreements between the parties contemplated on[-]call or  

                                                                                                                                                                                                                                                                                      



 standby time[,] . . . there were no policies, written or otherwise, that required any of the  

                                                                                                                                                                                                                                                                                    



pilots to be on call[,] . . . [and] [t]he 2007 employment agreement specifically states there  

                                                                                                                                                                                                                                                                              



 is no on[-]call or standby time."  He concluded that because the parties had not agreed  

                                                                                                                                                                                                                                                                        



to standby or on-call time, and because "in practice Mr. Moody was free to use his  

                                                                                                                                                                                                                                                                                    



non[-]flying time for his own purposes, he was not engaged to wait, but rather was  

                                                                                                                                                                                                                                                                                



waiting to be engaged."  

                                                                                 



                       10                    971 F.2d 347, 350-51 (9th Cir.1992),                                                                                     recognized in Air Logistics                                                             of Alaska,  



Inc.   v.   Throop,   181   P.3d   1084,   1091   (Alaska   2008);   see   also   Hutka   v.   Sisters   of  

Providence in Wash.                                                   , 102 P.3d 947, 958-59 (Alaska 2004) (citing                                                                                                          Owens, 971 F.2d at  

 350)   (noting   that   one   factor   to   consider   in   determining   whether   on-call   time   is  

 compensable as overtime is employee's freedom to engage in personal activities).                                                                                                                                                           



                                                                                                                                           -5-                                                                                                                                7322
  


----------------------- Page 6-----------------------

                                                Judge   Marston   next   determined  the   number   of   hours   Moody   actually  



worked. Finding the employment agreements unhelpful because of their inconsistencies                                                                                                                                                                             



and ambiguities, the judge found "Moody's log books to be the most accurate primary                                                                                                                                                                                                       



source," as they "were kept contemporaneously and have indicia of reliability."                                                                                                                                                                                                                Judge  



Marston determined how many flight hours Moody logged in 2006 and 2007 and added                                                                                                                                                                                                                  



some time for related duties, "such as preparing and preflighting the airplane, loading                                                                                                                                                                                                    



and unloading passengers, loading and unloading cargo[,] and making supply runs and                                                                                                                                                                                                                       



errand runs." He concluded that "[t]o exceed eight hours in a day, [Moody] would have                                                                                                                                                                                                                 



to have flown at least five and a half hours."                                                                                                                   Extrapolating from calendars that in turn                                                                                              



collectedinformation fromMoody's                                                                                                  flightlogs andChris                                                     Branham's summaries ofwork                                                                 



hours, Judge Marston concluded that "Moody worked overtime hours in 2006 in the                                                                                                                                                                                                                            



amount of 5.4 hours . . . [and] one hour of overtime in 2007."                                                                                                                                       



                                                JudgeMarstonthen                                                      decided thatliquidateddamagesunderAS23.10.110(a)                                                                                                    



were not appropriate because of the statute's exception for employers who have acted                                                                                                                                                                                                               



                                                                                                         11  

reasonably and in good faith.                                                                                   



                                                Royal Wolf Lodge moved for an award of costs and attorney's fees, citing  

                                                                                                                                                                                                                                                                                                   



AS   23.10.110(f),   which   allows   the   court   "in   an   action   for   unpaid   overtime  

                                                                                                                                                                                                                                                                                   



compensation" to award attorney's fees to aprevailing defendantwho has"madean offer  

                                                                                                                                                                                                                                                                                                      



of judgment to the plaintiff, . . . unless the plaintiff proves to the satisfaction of the court  

                                                                                                                                                                                                                                                                                                    



that the action was both brought and prosecuted in good faith and that the plaintiff had  

                                                                                                                                                                                                                                                                                                          



reasonable grounds for believing that the act or omission was in violation of [AWHA]."  

                                                                                                                                                                                                                                                                                                                          



Judge Marston denied the attorney's fees motion, finding that Moody had "pursued his  

                                                                                                                                                                                                                                                                                                            



legal claim on remand in good faith," but he awarded Royal Wolf Lodge its costs  

                                                                                                                                                                                                                                                                                                   



                        11  

                                                             

                                                AS 23.10.110(d).  



                                                                                                                                                       -6-                                                                                                                                                          7322  


----------------------- Page 7-----------------------

because such an award was mandated by Alaska Civil Rule 68 and not precluded by                                                                                                                                             



AWHA.   



                                   Both parties appealed.                                          Moody argues that the superior court erred or                                                                            



abused   its   discretion   in   the   following   ways:     (1)   by   failing   to   apply   the   proper  



methodology in determining whether Moody was entitled to compensation for unpaid                                                                                                                                



overtime; (2) by failing to apply the law of the case doctrine; (3) by declining to award                                                                                                                         



liquidated   damages;   and   (4)   by   failing   to   consider   the   public   policy   effects   of   its  



decision.    Royal Wolf Lodge argues that the superior court erred by not awarding it                                                                                                                                         



attorney's fees.   



III.              STANDARD OF REVIEW                               



                                   Whether a superior court "on remand has correctly applied our mandate is                                                                                                                    

                                                                                                                    12 as is "the interpretation of the controlling  

a question of law which we review de novo,"                                                                                                                                                           

 statutes and regulations."13  

                                                                         



                                   A "determination regarding subjective good faith is generally factual and  

                                                                                                                                                                                                                         



reviewed for clear error," while a "determination regarding objective reasonableness  

                                                                                                                                                                                           



 'involves applying the proper interpretation of the [law] to uncontested facts' " and is  

                                                                                                                                                                                                                              

primarily a legal determination we review de novo.14                                                                                             "Once it is established that the  

                                                                                                                                                                                                                          



 superior court did not err in finding clear and convincing evidence of good faith and  

                                                                                                                                                                                                                         



                  12               Beal v. Beal                     , 209 P.3d 1012, 1016 (Alaska 2009) (quoting                                                                                    Williams v.   



 Crawford ex rel. Estate of McVey                                                       , 47 P.3d 1077, 1079 (Alaska 2002)).                                           



                  13               Moody I, 339 P.3d at 638.  

                                                                                            



                  14               Air Logistics of Alaska , 181 P.3d at 1097 n.57 (quoting Bratt v. County of  

                                                                                                                                                                                                                             

Los Angeles, 912 F.2d 1066, 1072 (9th Cir. 1990)).  

                                                                                                                    



                                                                                                              -7-                                                                                                    7322
  


----------------------- Page 8-----------------------

reasonableness, the superior court's decision regarding whether or not to award                                                       any level   

of liquidated damages is reviewed for abuse of discretion."                                          15  



                                                                                                                          16  "An abuse of  

                       We review attorney's fees awards for abuse of discretion.                                                                  

                                                                                                        



discretion exists if an award is 'arbitrary, capricious, manifestly unreasonable, or the  

                                                                                                                                                

result of an improper motive.' "17                            "The trial court's application of law in awarding  

                                                                                                                                     

attorney's fees is reviewed de novo."18  

                                                     



IV.	       DISCUSSION  



                                                                                                                              

           A.	         Judge Marston Applied The Correct Methodology In Determining  

                                                                                                                              

                       Whether Moody Was Owed Compensation For Unpaid Overtime.  



                                                                                                                                                 

                       Moody  argues  that  Judge  Marston  used  the  wrong  methodology  in  



                                                                                                                                                  

determining whether an employee like Moody is entitled to overtime pay.  He points to  



                                                                                                                                     

therelevant federal regulation, 29 C.F.R. 785.23, which recognizes that "[a]n employee  



                                                                                                                                                  

who resides on his employer's premises on a permanent basis or for extended periods of  



                                                                                                                                    

time is not considered as working all the time he is on the premises," because ordinarily  



                                                                                                                                            

he is given time to "engage in normal private pursuits" such as "eating, sleeping, [and]  



                                                                                                                                                 

entertaining."             The  regulation  also  recognizes  that  in  such  cases  it  is  "difficult  to  



                                                                                                                                                

determine the exact hours worked," and therefore "any reasonable agreement of the  



                                                                                                                                         19  

                                                                                                                                              The  

parties which takes into consideration all of the pertinent facts will be accepted." 



                                                                                                                                               

burden is on the employer to prove "plainly and unmistakably" both that (1) there was  



            15         Id.  at   1097.
  



            16         Bachner  Co.  v.  Weed,  315  P.3d  1184,  1189  (Alaska  2013)  (quoting  Krone
  



v.  State,  Dep't  of  Health  &  Soc.  Servs.,  222  P.3d  250,  252  (Alaska  2009)).  



            17         Id.  (quoting  Krone,  222  P.3d  at  252).  



            18         Id.  (citing  Krone,  222  P.3d  at  252).  



            19         29  C.F.R.    785.23  (2017).  



                                                                        -8-	                                                                7322
  


----------------------- Page 9-----------------------

an agreement to compensate the employee for overtime work, and (2) "the agreement                                                                  



                                                                                                                                           20  

was 'reasonable,' having taken into account 'all of the pertinent facts.' "                                                                     



                          Moody asserts that there was such an agreement, that both Judge Joannides  

                                                                                                                                                    



and our decision in Moody I recognized the agreement's existence and reasonableness,  

                                                                                                                                         



and that Judge Marston erred when he "undid the agreement" on remand.   But we  

                                                                                                                                                                 



disagree that the factual issues central to Moody's overtime claim had been established  

                                                                                                                                                  



for remand, and we conclude that Judge Marston applied the correct legal analysis to  

                                                                                                                                                                   



Moody's claim.  

                    



                          1.	          The decision on remand did not violate the law of the  

                                                                                                                                                   

                                       case.  



                          Moody relies on the law of the case doctrine to argue that Judge Marston  

                                                                                                                                                       



erred on remand by ignoring findings Judge Joannides made in the first trial and we  

                                                                                                                                                                 



affirmed  in Moody  I .                        "The  law  of  the  case  doctrine  .  .  .  generally  'prohibits  the  

                                                                                                                                                                



reconsideration of issues which have been adjudicated in a previous appeal in the same  

                                                                                                                                                             



case,' " unless there are "exceptional circumstances" presenting "clear error constituting  

                                                                                                                                                 

a manifest injustice."21  

                                              



                          Moody asserts that "[Judge] Joannides found that the agreement between  

                                                                                                                                                       



Moody and Royal Wolf [Lodge] under 29 C.F.R.  785.23, which stated Moody was to  

                                                                                                                                                                   



be compensated for 72 hours of work in a six-day workweek, was reasonable" and that  

                                                                                                                                                                



Royal Wolf Lodge has not challenged this finding.  He observes that in Moody I we  

                                                                                                                                                                 



affirmed Judge Joannides's decision on all issues other than the applicability of the  

                                                                                                                                                                 



             20           Leever   v.   Carson  City,   360   F.3d   1014,   1018   (9th   Cir.   2004)   (quoting  

Brigham v. Eugene Water & Elec. Bd.                                       , 357 F.3d 931, 941 (9                    th  

                                                                                                                                 

                                                                                                                        Cir. 2004)).  



             21           Beal  v.  Beal,  209  P.3d  1012,  1016-17  (Alaska  2009)  (quoting  State,  

                                                                                                                                                           

Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 & n.52 (Alaska  

                                                                                                                                                       

2003)).  



                                                                                 -9-	                                                                        7322
  


----------------------- Page 10-----------------------

                                                     22  

professional services exemption.                          Because AWHA requires overtime pay for any hours                             



                               23  

over 40 in a week,                                                                                                                       

                                   he asserts that, following Moody I, his right to overtime pay was  



                                                                                                                                       

governed by theparties' reasonableagreement thathewould work an additional 32 hours  



                                                                                                                                           

above the 40-hour maximum.  He asserts that all Judge Marston was left to decide on  



                                                                                                                                            

remand, therefore, was "the proper compensation due [Moody] for [that] 32 hours of  



                                                                                                                                         

overtime as set forth in the agreement," as well as "how many more hours Moody was  



                                                                                                     

to be compensated for when he worked the seventh day in a week."  



                                                                                                                           

                      ButJudgeJoannides's finding that theparties' agreementwas "reasonable"  



                                                                                                                          

was  in  the  context  of  her  determination  that  Moody  was  an  exempt  professional  



                                                                                                                                   

employee who was not entitled to overtime pay under AWHA regardless of the number  



                                                                                                                                      

of hours he was required to work.  She specifically declined to find "that the base salary  



                                                                                                      

was for only 40 hours of work," concluding that "even if the number of hours of work  



                                                                                                                                            

exceeded 40 hours, Moody would not be entitled to be paid additional funds unless he  



                                                                                                                                        

worked over 30 days per month and if he did not receive his paid days off."   She  



                                                                                                                                          

therefore awarded Moody additional base pay for days he worked and for which he had  



                                                                                                                                   

not been compensated at all (July 31, August 31, and scheduled days off).  She notably  



                                                                                                                                                 

did not find that the agreements required Moody to work any particular number of hours.  



                          

Her finding on this issue - that the parties' agreements were reasonable as to the pay  



                                                                                                                             

of an exempt employee - cannot substitute for a determination whether the agreements  

                                                                                                          24   as to a non-exempt  

                                                                                                                           

were reasonable and accounted for "all of the pertinent facts" 



employee.  

                   



           22         Moody I  , 339 P.3d 636, 643-44 (Alaska 2014).                      



           23  

                             

                      AS 23.10.060(b).  



           24         Leever, 360 F.3d at 1017 (quoting 29 C.F.R.  785.23).  

                                                                                                    



                                                                    -10-                                                              7322
  


----------------------- Page 11-----------------------

                         Our decision in               Moody I      stated the superior court's task on remand:                                               to  



conduct "further proceedings on whether Moody in fact worked overtime as defined by                                                                          



                                                                                                                                                              25  

AS 23.10.060 and whether he is entitled to recover compensation for unpaid overtime."                                                                               



                                                                                                                                         

These open questions were inconsistent with a decision that Moody was contractually  



                                                                                                                                                        

entitled to 32 hours of overtime pay.   In a related footnote we stated:   "Royal Wolf  



                                                                                                                                                            

Lodge claims the superior court found that Moody never worked more than 40 hours per  

                                                                                                                                                      26  We  

week[, b]ut the superior court merely disclaimed a factual finding on the issue." 

concluded  "that  this  issue  remains  unresolved."27                                              The  trial  on  remand,  exploring  

                                                                                                                                               



"whether Moody in fact worked overtime," was thus consistent with our view of what  

                                       



remained to be decided.  

                              



                         2.	         Judge           Marston               applied            the       correct           legal         test       to      the  

                                                                                                                                                         

                                     determination of overtime.  

                                                                         



                         "The AWHA requires an employer to pay employees at the overtime rate  

                                                                                                                                                           



of one and one-half times the regular rate for 'hours worked in excess of eight hours a  

                                                                                                                  

day' or forty hours a week."28                           The starting point for determining whether overtime pay  

                                                                                                                                                           

is due is thus a determination of employee time spent "actually working."29  

                                                                                                                                                  Federal  



                                                                                                                                                              

courts have "looked to two predominant factors when dealing with [the] question" of  



                                                                                                                                                                    

whether employees' time is so restricted that they deserve to be compensated for it:  



                                                                                                                                                             

"(1) the degree to which the employee is free to engage in personal activities; and (2) the  



            25           Moody  I,  339  P.3d  at  642.  



            26           Id.  at  642  n.38.  



            27           Id.  



            28           Air  Logistics  of  Alaska,  Inc.  v.  Throop,  181  P.3d  1084,  1090  (Alaska  2008)  



(emphasis  in  original)  (quoting  AS  23.10.060(b)).  



            29           Id.   



                                                                             -11-	                                                                      7322
  


----------------------- Page 12-----------------------

                                                          30  

agreements between the parties."                                We adopted this analysis in                        Hutka v. Sisters of           



                                               31  

Providence in Washington                      .    



                       When considering the first of these two factors - the employee's degree  

                                                                                                                                          



of personal freedom - we consider the following subsidiary factors from the Ninth  

                                                                                                                                           



Circuit Court of Appeals' case Owens v. Local No. 169, Association of Western Pulp &  

                                                                                                                                                  



Paper Workers :  

             



                       (1) whether there was an on-premises living requirement;  

                                                                                            

                       (2) whether there were excessive geographical restrictions on  

                                                                                                                           

                       employee's movements; (3) whether the frequency of calls  

                                                                                                                       

                       was unduly restrictive;  (4)  whether a fixed time limit for  

                                                                                                                         

                       response  was  unduly  restrictive;  (5)  whether  the  on-call  

                                                                                                                  

                       employee             could        easily        trade       on-call         responsibilities;  

                                                                                                 

                       (6)  whether  use  of  a  pager  could  ease  restrictions;  and  

                                                                                                                       

                       (7) whether the employee had actually engaged in personal  

                                                                                            

                       activities during call-in time.[32]  

                                                                 

The "list is illustrative, not exhaustive," and "[n]o one factor is dispositive."33  

                                                                                                              



                       Consideration of the second factor of the two-part analysis - the parties'  

                                                                                                                                         



agreement - "assists the trier of fact in determining whether the parties characterized  

the time spent waiting on-call as actual work,"34 but the agreement is not determinative.35  

                                                                                                                                                      



Contractual provision for "at least some type of compensation for on-call waiting time  

                                                                                                                                              



            30         Id.  at 1091 (quoting               Owens v. Local No. 169, Ass'n of W. Pulp & Paper                                



 Workers, 971 F.2d 347, 350 (9th Cir. 1992)).                     



            31         102 P.3d 947, 959 (Alaska 2004).  

                                                                       



            32         Air  Logistics  of  Alaska ,  181  P.3d  at  1091  (quoting  Owens,  971  F.2d  at  351).  



            33         Id.  



            34         Id.  at   1093  (quoting  Berry  v.  County  of  Sonoma, 30 F.3d   1174,   1180-81  



(9th  Cir.   1994)).  



            35         See id. at 1092 n.28.  

                                                  



                                                                       -12-                                                                 7322
  


----------------------- Page 13-----------------------

may suggest the parties characterize waiting time as work," in contrast to an agreement                                                             



that "employees are to be paid only for time spent actually working, and not merely                                                                       

waiting to work."                 36  



                                                                                                                                                                

                          JudgeMarstonproperly applied thisanalyticalframework. Consistent with  



                                                                                                                                                          

the two-part analysis we adopted in Hutka, he considered both the impact of the parties'  



                                                                                                                                                                    

agreements and the Owens factors relevant to "making a determination as to whether an  



                                                                                                                                                  

employee is free to engage in personal activities." He discussed the parties' agreements  



                                                                                                                    

first, finding that they were "unclear and inconsistent" and that "the inconsistencies in  



                                                                                                                                                                    

the language . . . reflect . . . no meeting of the minds as to" job requirements, number of  



                                                                                                                                                              

hours,  or  hourly  rate.                       Therefore,  "[w]hile  parties  are  permitted  to  agree  on  what  



                                                                                                                                     

constitutes work hours in situations where an employee lives on the work site, such as  



                                                                                                                                               

Royal Wolf Lodge," the parties here had not reached such an agreement.  



                                                                                                                                                                  

                          Judge Marston next  considered the  Owens  factors.   He found that (1)  



                                                                                                                                                               

Moody "was required to reside on the premises because the job itself was being a pilot  



                                                                                                                                                  

for a remote wilderness fly fishing lodge"; (2) there were no excessive geographic  



                                                                                                                                                                

restrictions on Moody's mobility, as he was free to hike, fish, and explore on his own  



                                                                                                                                                                  

time and to run personal errands when he flew work-related trips to town; (3) the  



                                                                                                                                                       

frequency of calls to work was not unduly restrictive as he usually knew his schedule  



                                                                                                                                                                  

well in advance and was rarely called to work on short notice; (4) he was generally not  



                                                                                                                                                                    

expected to stay in a particular location, ready to fly; and (5) he "was free to engage in  



                                                                                                                                                   

personal activities during the time he was allegedly on call, and he did so":  socializing  



             36  

                                                                                                     

                          Id. at 1093 (quoting Berry, 30 F.3d at 1181).  



                                                                                -13-                                                                                7322  


----------------------- Page 14-----------------------

with other employees, watching movies, reading, using the internet, and doing "laundry                                                                



                                                     37  

and other personal chores."                               



                          Judge Marston then returned to the parties' agreements. He noted that none  

                                                                                                                                                              



of them "contemplated on[-]call or standby time and there were no policies, written or  

                                                                                                                                                                   



otherwise, that required any of the pilots to be on call," and that one agreement - from  

                                                                                                                                                              



2007 - "specifically states there is no on[-]call or standby time."  He concluded that  

                                                                                                                                                                



because "the parties did not agree to . . . [or] require standby or on[-]call time," and  

                                                                                                                                                                



because "in practice Mr. Moody was free to use his nonflying time for his own purposes,  

                                                                                                                                                     



he was not engaged to wait, but rather was waiting to be engaged" - in other words, his  

                                                                                                                                                                  



time spent waiting was not his employer's but his own, and he was not entitled to be  

                                                                                                                                             

compensated for it.38  

                                          



                          Judge Marston's factual findings are not challenged.   He appropriately  

                                                                                                                                             



applied to those findings the multi-factor test identified in Hutka and Owens, reaching  

                                                                                                                                       

a conclusion that is well supported by the evidence.  We see no error.39  

                                                                                                                            



             37           The court found other                     Owens  factors, "whether the on-call employee could                                      



easily trade on-call responsibilities" and "whether use of a                                                 pager could ease restrictions,"       

irrelevant given its finding that Moody was generally not on call.                                                              Owens, 971 F.2d at  

351.   



             38           In Air Logistics of Alaska , 181 P.3d at 1092, we found that "the isolated and  

                                                                                                                                                                

inaccessible location" of the employer's premises and "the extended period of time"  

                                                                                                                                                            

employees spent there outweighed other  Owens factors favoring the employer.   But  

                                                                                                                                                               

unlike here, the disputed hours were compensable overtime because both prongs of the  

                                                                                                                                                                 

Hutka  analysis - the  Owens factors and the employment agreement - favored the  

                                                                                                                                                                 

employees.  Id. at 1091-94.  

                                                       



             39           Moody argues that Judge Marston's decision is contrary to public policy  

                                                                                                                       

because Chris Branham admitted at trial that he failed to accurately report employee  

                                                                                                                                                    

wages to interested federal and state agencies.  He also notes Judge Joannides's finding  

                                                                                                                                                         

                                                                                                                                             (continued...)  



                                                                               -14-                                                                          7322
  


----------------------- Page 15-----------------------

            B.	         Remand Is Necessary To Address The Subjective Good Faith                                                    

                        Element Of Moody's Liquidated Damages Claim.                                      



                        Moody next argues that Judge Marston erred when he declined to award                                                   



liquidated   damages.     "An   employer   who  violates   the   overtime   or   minimum   wage  



provisions of the AWHA is usually liable for both unpaid overtime or minimum wage                                             



                                                                              40  

and an equal amount in liquidated damages."                                                                                               

                                                                                  The only exception is when the employer  



                                                                                                                                                   

can show good faith and reasonable grounds for believing it is in compliance; then "the  



                                                                                                                                                       41  

                                                                                                                                                            

court may decline to award liquidated damages" or award them in a reduced amount. 



                                                                                                                                             

"This provision contains both a subjective element - that the employer acted in good  



                                                                                                                                                    

faith - and an objective element - that the employer reasonably believed it was not  



                                                                        42  

                                                                             

violating AWHA's overtime provision." 



                                                                                                                                                 

                        Moody asserts that "[t]here was no evidence whatsoever that [Royal Wolf  

                                                                                                                                              43   and  

                                                                                                                                                   

Lodge]  attempted  to  comply  with  [AWHA],  as  mandated  by  the  statute," 



particularly that there was no evidence the lodge "went to the Department of Labor to  

                                                                                                                                                       



            39          (...continued)  



                                                                                                                                                       

that the lodge likely terminated him "in part" because of his refusal "to take sides" in  

                                                                                                                                                       

another employee's wage dispute and to support the lodge in a trooper investigation of  

                                                                                                                                                      

"an illegal bear hunting incident involving Chris Branham."  But Moody provides no  

                                                                                                                                              

legal analysis explaining why either of these arguments supports his claim to unpaid  

                                              

overtime compensation.  



            40         Air Logistics of Alaska , 181 P.3d at 1097; AS 23.10.110(a) ("An employer  

                                                                                                                                          

who violates a provision of AS 23.10.060 or 23.10.065 is liable to an employee affected  

                                                                                                                                            

in the amount of unpaid minimum wages, or unpaid overtime compensation, as the case  

                                                                                                                                                   

may be, and, except as provided in (d) of this section, in an additional equal amount as  

                                                                                                                                                       

liquidated damages.").  

                    



            41          AS 23.10.110(d) (emphasis added).  

                                                                           



            42         Air Logistics of Alaska , 181 P.3d at 1097.  

                                                                                                    



            43          Emphasis omitted.  

                                           



                                                                         -15-	                                                                   7322
  


----------------------- Page 16-----------------------

 determine whether it was in compliance with [AWHA], [or] that the employer attempted                                                                                                                                                  



to take affirmative steps to learn the law."                                                                                            Royal Wolf Lodge counters that Judge                                                                     



 Marston conducted the proper analysis under the statute and that his finding that the                                                                                                                                                                    



 lodge acted reasonably and in good faith is not clearly erroneous.                                                                                                                                   



                                         The only evidence Judge Marston cited in support of his conclusion that                                                                                                                                        



 Royal Wolf Lodge                                       acted reasonably and in good faith was Judge                                                                                         Joannides's conclusion,   



 following the first trial, that Moody was an exempt employee.                                                                                                                              "[T]he closeness of the                                        



 legal question" may indeed bear "on the issue of objective reasonableness," even if the                                                                                                                                                                  

                                                                                                                                                                                           44      But a finding of both  

 employer's interpretation is eventually rejected by the courts.                                                                                                                                                                                      



 objective reasonableness and subjective good faith requires more:  "For example, an  

                                                                                                                                                                                                                                                            



 employer who does not take affirmative steps to learn the law will not be able to show  

                                                                                                                                                                                                                                                    

                                                                                              45                                                                                              46 and Resurrection Bay  

                                                                                                     In both Air Logistics of Alaska                                                                                                                    

 good faith and reasonableness."                                                                                                                                                               

                                            



                                                                           47  

Auto Parts, Inc. v. Alder ,   we discussed the types of evidence relevant to a finding that  

                                                                                                                                                                                                                                                         



the employer acted in subjective good faith:  this included contacting the Department of  

                                                                                                                                                                                                                                                              



 Labor, seeking a lawyer's advice, and clearly explaining its policies to its employees.  

                                                                                                                                                                                                                                                                       



We recognize that in this case, as Royal Wolf Lodge argues,  the record contained  

                                                                                                                                                                                                                                     



 evidence that could be relevant to a finding of subjective good faith.  But the lack of  

                                                                                                                                                                                                                                                             

 specific findings on the issue inhibits meaningful appellate review.48                                                                                                                                                    We therefore  

                                                                                                                                                                                                                                        



                    44                  Air Logistics of Alaska                                              , 181 P.3d at 1099.                     



                    45                  Id.  at 1098;                      see also                  AS 23.10.110(g) ("Failure to inquire into Alaska law                                                                                                



 is not consistent with a claim of good faith under this section.").                                                                                              



                    46                   181 P.3d at 1097-99.  

                                                                            



                    47                   338 P.3d 305, 311 (Alaska 2014).  

                                                                                                                           



                    48                  See Petrilla v. Petrilla, 305 P.3d 302, 307 (Alaska 2013) ("We have held  

                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                            (continued...)  



                                                                                                                            -16-                                                                                                                     7322
  


----------------------- Page 17-----------------------

remand the issue to the superior court to expressly consider whether Royal Wolf Lodge                                                                                                                                              



acted   with   the   subjective   good   faith   required   by   the   exception   from the                                                                                                                            liquidated  



damages provision.                                       



                   C.	                Judge Marston Did Not Err By Denying Royal Wolf Lodge Attorney's                                                                                                               

                                      Fees.  



                                      Under AS 23.10.110(f), a prevailing defendant who "previously made an                                                                                                                                   



offer of judgment to the plaintiff" is entitled to an award of attorney's fees "unless the                                                                                                                                                  



plaintiff proves to the satisfaction of the court that the action was both brought and                                                                                                                                                    



prosecuted in good faith and that the plaintiff had reasonable grounds for believing that                                                                                                                                                  



the act or omission was in violation of AS 23.10.060."                                                                                                    This statute "allows a defendant                             



to collect attorney's fees in an action for unpaid overtime compensation only in the event                                                                                                                                            



                                                                                                 49  

of a frivolous or bad faith claim."                                                                                                                                                                                                       

                                                                                                         In its cross-appeal Royal Wolf Lodge argues that  



                                                                                                                                                                                                                                     

Judge Marston erred by failing to award the lodge its attorney's fees because the lodge  



                                                                                                                                                                                                                                            

was the prevailing party, it had made offers of judgment, and Moody had failed "to  



                                                                                                                                                                                                                                            

prosecute his AWHA claim in good faith and on reasonable grounds . . . during the  



                                                                                 50  

                                                                                                                                                                                                                                      

second  phase  of  litigation."                                                             Royal  Wolf  Lodge  argues  that  Moody  should  have  



                                                                                                                                                                                                                                     

recognized the weakness of his position following the first trial -especially given Judge  



                                                                                                                                                                                                                                        

Joannides's extensive findings about his free time during work days - and should have  



                                                                                                                                                                                                                                               

made some effort to discover and present "new or more detailed evidence in support of  



                   48                 (...continued)  



                                                                                                                                                                                                                                   

on many occasions that the trial court must provide sufficient factual findings to enable  

                                                                                                                                                                                                                                         

appellate review."); Olmstead v. Ziegler, 42 P.3d 1102, 1107 (Alaska 2002) ("The trial  

                                                                                                                                                                                                                    

court is required to enter sufficiently detailed findings of fact to allow for meaningful  

                           

appellate review.").  



                   49                 Diaz v. Silver Bay Logging, Inc., 55 P.3d 732, 737 n.11 (Alaska 2002).  

                                                                                                                                                                                                                             



                   50                 Emphasis omitted.  

                                                                   



                                                                                                                     -17-	                                                                                                             7322
  


----------------------- Page 18-----------------------

his AWHA claim" on remand. Royal Wolf Lodge points out that Judge Marston reached                                                                                                                                                                                                                                                                                                                                                                                       



 essentially   the   same   factual   conclusions   following   remand   as   Judge   Joannides   had  



reached at the first trial.                                                                                                                 



                                                                             We   conclude   that   Judge   Marston   did   not   err   in   declining   to   award  



 attorney's fees to Royal Wolf Lodge.                                                                                                                                                                                    The judge reasoned that "Moody's claim that he                                                                                                                                                                                                                               



was 'engaged to wait,' while ultimately a losing one, involved a complex interpretation                                                                                                                                                                                                                                                                                                                                               



 of law and fact that merited a full trial on the merits" and that "[r]egardless of a lack of                                                                                                                                                                                                                                                                                                                                                                                                           



 further discovery on Moody's part, [he] pursued his legal claim on remand in good                                                                                                                                                                                                                                                                                                                                                                                                   



 faith."     These   findings   are   supported   by   the   record,   including   the   superior   court's  

                                                                                                                                                                                                                                                                                                                                                                  51                On these findings, the  

 extensive written findings and legal analysis following trial.                                                                                                                                                                                                                                                                                                                                                                                                                                  



 court properly concluded that AS 23.10.110(f) did not require an award of fees to Royal  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



Wolf Lodge.  

                                                                             



                                       51                                    Wenotethedistinction between our remandoftheliquidated damages issue                                                                                                                                                                                                                                                                                                                                       



- on the ground that the superior court failed to make specific findings of fact to support                                                                                                                                                                                                                                                                                                                                                                              

 its finding that Royal Wolf Lodge acted with subjective good faith - and our decision                                                                                                                                                                                                                                                                                                                                                                             

to affirm the superior court's bare finding that Moody "pursued his legal claim on                                                                                                                                                                                                                                                                                                                                                                                                                 

remand in good faith."                                                                                                               Whether Royal Wolf Lodge acted in good faith for purposes of                                                                                                                                                                                                                                                                                                       

AS 23.10.110(d) relates to its conduct before Moody's suit was filed, i.e., whether the                                                                                                                                                                                                                                                                                                                                                                                                           

 lodge's failure to pay overtime compensation was an "act or omission . . . made in good                                                                                                                                                                                                                                                                                                                                                                                               

 faith."   The finding thus depends on evidence submitted by the parties.                                                                                                                                                                                                                                                                                                                                                            On the other                                    

hand, whether Moody acted in good faith for purposes of the attorney's fees provision,                                                                                                                                                                                                                                                                                                                                                                   

AS 23.10.110(f), relates to his conduct as a litigant, directly observable by the superior                                                                                                                                                                                                                                                                                                                                                                          

 court.   We have repeatedly held that "the trial court is in the best position to evaluate a                                                                                                                                                                                                                                                                                                                                                                                                                

 litigant's good faith" and are likely to defer to its determination of the issue.                                                                                                                                                                                                                                                                                                                                                                       Khalsa v.   

 Chose, 261 P.3d 367, 375 (Alaska 2011);                                                                                                                                                                                                       see also Reid v. Williams                                                                                                                        , 964 P.2d 453, 461-                                                                     

 62 (Alaska 1998) ("The superior court was in the best position to determine whether a                                                                                                                                                                                                                                                                                                                                                                                                                       

party's behavior was excessively litigious or in bad faith.").                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                   -18-                                                                                                                                                                                                                  7322
  


----------------------- Page 19-----------------------

V.                         CONCLUSION  



                                                      We REMAND the liquidated damages issue to the superior court for its                                                                                                                                                                                                                            



consideration of Royal Wolf Lodge's subjective good faith.                                                                                                                                                                                                 In all other respects we                                                                



AFFIRM the judgment of the superior court.                                                                                                                     



                                                                                                                                                                                    -19-                                                                                                                                                   7322
  

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