The Basis For The Lawsuit
The lawsuit alleges five separate Fair Labor Standards Act (FLSA) claims against the City of New York.
Denial of the Use of Compensatory Time Off. Under the FLSA, if an employee requests to use compensatory time off in a "reasonable period" prior to its anticipated use, the employer must allow the employee to use the time off unless to do so would "unduly disrupt" the employer's operations. “Undue disruption" means that the employer will not be able to perform its basic functions if it allows the employee to take the compensatory time off. Simply having to replace an employee desiring to use compensatory time off with another employee on an overtime basis is not an undue disruption justifying the denial of compensatory time off.
Numerous employees have indicated that the Department routinely denies requests for compensatory time off, citing as a justification that a shift is at minimum staffing. If the Department could call in employees on an overtime basis in such circumstances, it is violating the FLSA by not granting the compensatory time off request. Since it would be an extraordinary circumstance where the Department could not call in replacement employees on an overtime basis, our conclusion is that the Department's compensatory time off practices violate the FLSA.
Forced Accrual of Compensatory Time Off.Under the FLSA, if employees have a collective bargaining representative, an employer may not use compensatory time off in lieu of cash compensation for overtime hours worked absent a collective bargaining agreement authorizing such use, and then only pursuant to the terms of the collective bargaining agreement.
It is a common practice within Department to force employees to accept compensatory time off in lieu of cash compensation for overtime work. The Department achieves this result by either requiring that employees agree upfront to be compensated in time in order to be eligible for specified overtime work opportunities, or the Department imposes a cap on the amount of cash compensation an officer can receive for overtime work with disciplinary or promotional consequences for employees who violate the cap.
Neither the collective bargaining agreement negotiated by the PBA nor the agreement negotiated by the DEA authorize this practice. Both collective bargaining agreements state that overtime hours shall be compensated by either cash compensation or compensatory time off at “the sole option of the employee.” In consequence, the Department is only authorized to use compensatory time off as compensation for overtime hours worked when the employee exercises his or her option to be compensated in time. When the Department forces the acceptance of compensatory time off it violates the FLSA.
Uncompensated Overtime Built Into Employees’ Work Schedules. The City claims to have established the 28-day work period under Section 7(k) of the FLSA. Under the Section 7(k) exemption, employees are not entitled to overtime until they work more than 171 hours in a 28-day period.
Employees of the Department work a variety of work schedules that can generate more than 171 hours in a 28-day period. For example, a 5-2, 5-3 schedule with a 8 hour, 35 minute workday produces a 15-day "cycle." Once every five 28-day periods, the schedule produces 171.67 hours of work, or 0.67 hours of overtime under the 28-day Section 7(k) work period. The overtime is generated because of the alignment of days off and work days throughout the course of the 28-day period. Though this might seem inconsequential, the damages for this violation potentially run into the millions of dollars. Other work schedules that generate possible uncompensated overtime are (i) the 5-2, 5-2 schedule with 8 hour, 35 minute days, (ii) the 4-2, 4-2 schedule with 8 hour, 35 minute days, (iii) the 3-3 schedule with 12 hour days, (iv) the “boat chart” worked by members of the Harbor Unit, and (v) slippage days worked by detectives. Each of these schedules can potentially generate in excess of 171 hours of work within a 28 day period for which the employee should receive overtime compensation for all hours beyond the 171 hour threshold.
Shift Differential, Longevity Pay, and the Overtime Rate. Section 7(a) and Section 7(e) of the FLSA require that all FLSA overtime be paid at time and one-half the "regular rate of pay." The "regular rate of pay" is based on "all remuneration for employment" received in the work period by the regular hours of work in that work period. This means that the regular rate of pay - and the overtime rate - must take into account wages, longevity pay, working out of classification pay, shift differential, specialty pay, hazardous duty pay, and virtually all other compensation that shows up on an employee's paycheck as gross wages.
The FLSA demands that the "regular rate" calculation be performed on a work period by work period basis. For each 28-day work period, all remuneration for employment must be totaled, and then divided by the regular hours worked by the employee to produce the "regular rate." This means that, each 28 days, the City must count up the amount of shift differential and longevity pay actually received by employees, and take that amount into account in calculating the overtime rate. The City's practice -- which is impermissible under the FLSA, is to not include shift differential and longevity pay in the overtime rate for all hours of overtime worked.
The "Rounding" Problem.The FLSA demands that compensation be paid to the nearest 15 minutes. In other words, an employer must begin to compensate employees when they have worked more than 7.5 minutes of overtime. The City's practice is to begin to compensate employees when they work 15 minutes of overtime, not the 7.5 minutes required by the law.