Whether three Denton employees can sue the city for on-call pay now waits for the Texas Supreme Court to decide.
Attorneys gave oral arguments before the full court Wednesday. Most of the eight justices peppered both sides with questions but gave no hint whether they will let the case proceed.
The employees’ attorney, Brian Cartwright, said he expected a decision in two to six weeks but declined to comment further. First Assistant City Attorney Jerry Drake was present at the hearing and said he was confident the legal issues were laid out for the court.
“From the context of their questions, we are optimistic that the majority will agree with the City’s position; but, if it turns out otherwise, we are satisfied that all issues on both sides were well briefed, well argued, and well received by the Court,” Drake wrote in an email to the Denton Record-Chronicle.
The long-running case began in 2015 when Brian Rushing, Calvin Patterson and Michael Marshall sued the city government, claiming they were required to be on call but weren’t paid for their time.
Denton appealed to the state’s highest court in hopes of overturning two lower court rulings and allowing its government immunity to stand, effectively ending the case.
The men all drive heavy equipment for Beneficial Reuse, a division of Denton’s water utilities department that turns yard waste into soil, compost and similar products at the landfill. In addition to their regular shifts, the men also were required to be available in case of an emergency 24 hours per day, one week each month.
For example, if materials at the landfill caught fire, the on-call employee would be expected to return to the landfill within 30 minutes to drive a bulldozer to help contain the fire. If they came back to work, they were paid for their time, but weren’t paid otherwise. The city also disciplined or fired employees who didn’t respond in a timely manner when on call.
In oral arguments, Cartwright told the high court the strict on-call requirements meant the men could not use their personal time effectively.
“They cannot go out to eat or to a sporting event, or get a second job,” Cartwright said.
He told the court the “fatal flaw” in the city’s argument could have broad implications for unilateral contract law if the state’s highest court sided with the city. Unilateral contract law is the promise of payment for legal work.
In other words, an employer could force someone to work and decide later not to pay, he said.
But the city’s attorney, Amy Emerson, told the court the city’s employee manual puts workers on notice that the manual is not an employment contract.
“Nothing in the manual constitutes a contract for employment or guarantees continued employment,” Emerson said.
In addition, she told the court that even if the policy manual could be seen as a one-sided contract, the city remained immune because the former city manager amended the on-call policy without City Council approval.
In his 31-year-career, the appearance was Cartwright’s first before the state’s highest court. Drake called the city’s opportunity to present its case “a honor.”
“It is an opportunity rarely granted,” Drake said. “When our office last took a case to the Texas Supreme Court, we prevailed but were not invited to make an oral argument.”
The Texas 2nd Court of Appeals in Fort Worth sided with the trial court and the three employees, saying the employees could sue the city for failing to pay them for being on call.
Judge Bruce McFarling presides over the case in Denton County’s 362nd District Court.
If the Texas Supreme Court sides with the other courts, the city ultimately could be on the hook for more than $200,000 in back pay for the employees, damages and attorney and court costs. Rushing has worked for the city since 2001, Marshall since 2006 and Patterson since 2008.
All three men still work for the city, earning about $25 per hour.