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August 8, 1986

RUTH WONG, Plaintiff,
THE CITY OF NEW YORK, HUMAN RESOURCES ADMINISTRATION AND GEORGE GROSS, in his official capacity as Commissioner of the Human Resources Administration, Defendants

The opinion of the court was delivered by: STANTON


Plaintiff Ruth Wong brings this action against the Human Resources Administration of the City of New York ("HRA"), Ms. Wong's former employer, and against George Gross, HRA's commissioner, alleging that HRA failed to pay her overtime wages, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a) and 215, and that HRA failed to pay her regular wages, in breach of the parties' employment contract. The defendants move pursuant to Fed. R. Civ. P. 56 for summary judgment. *fn1" The motion is granted.

 The parties do not disagree over the material facts. Plaintiff was employed by HRA as a "houseparent" from June, 1983 to June, 1984 pursuant to the terms of a collective bargaining agreement between New York City and the Social Services Employees' Union, Local 371, AFSCME, AFL-CIO. (Aff. of Ruth Wong, P 2; Aff. of Michael G. Davies, P 2.) Houseparents provide supervision and care for neglected or emotionally disturbed children, foster children, or other persons in need of supervision (see N.Y. Family Court Act § 712(a)) in group homes operated by the Department of Social Services of HRA, pursuant to N.Y. Social Services Law § 374-c. (Wong Aff., P 9; Aff. of June Nearon, PP 2, 3.) Houseparents are on call at their group homes 24 hours a day for ten days of each fourteen-day work period. (Wong Aff., P 5; Nearon Aff., P 5.)

 Plaintiff claims that though defendants required that she work over forty hours each week, she was not paid for her overtime hours as required by the FLSA, 29 U.S.C. § 207(a). The defendants argue that plaintiff was exempt from the overtime provision of the FLSA under National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), and that in any case the Fair Labor Standards Amendments of 1985 (the "FLSA Amendments"), 99 Stat. 787, preclude defendants' liability for the alleged violations of the FLSA overtime provision which took place before April 15, 1986.

 The overtime provision of the FLSA provides that an employee who is not otherwise exempt is entitled to receive overtime pay at a rate not less than one and one-half times his regular rate of pay for hours worked in excess of forty hours in a single work week. 29 U.S.C. § 207(a). It was enacted both to encourage employers to hire additional workers and to insure that employees are compensated for the strain of working over forty hours in one week. See Bay Ridge Operating Co., Inc. v. Aaron, 334 U.S. 446, 469-471, 92 L. Ed. 1502, 68 S. Ct. 1186 (1948); Donovan v. Brown Equipment and Service Tools, Inc., 666 F.2d 148, 152 (5th Cir. 1982).

 The applicability of § 207(a) to state and local government employees has been Protean. The original version of the FLSA passed in 1938 specifically excluded such employees from its coverage, but in 1966 Congress extended the FLSA to apply to certain school, hospital, nursing home and transit employees of states and localities. 80 Stat. 830. That extension of the statute's coverage was sustained by the Supreme Court in Maryland v. Wirtz, 392 U.S. 183, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968).

 In 1974 Congress further extended the FLSA to apply to almost all state and local government employees. 29 U.S.C. § 203(d) and (x). In National League the Court overruled Wirtz and struck down the 1974 extension of the FLSA's coverage, holding that the Commerce Clause did not empower Congress to enforce the minimum-wage and overtime provisions of the statute against the states "in areas of traditional governmental functions." Id. at 2474. Pursuant to National League the Department of Labor in 1979 issued final regulations defining such areas as libraries, schools, museums, hospitals, fire prevention, police protection, sanitation, public health and parks and recreation as traditional governmental functions of states and localities, 29 C.F.R. § 775.4; and defining state or local government operation of railroads, liquor stores, off-track betting corporations, local mass-transit systems, electric power companies, telephone and telegraph systems, sewage by-product businesses, agricultural concerns and marine repair and maintenance businesses as nontraditional, 29 C.F.R. § 775.3.

 In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985), the Court overruled National League. Garcia holds that any limits on Congress' power under the Commerce Clause to impose its will upon the states properly derive not from judicial assessments of whether federal legislation infringes on "traditional" state prerogatives, but rather from the structural arrangement of our federal system, through which the states may act to protect their sovereign interests. See Garcia, 105 S. Ct. at 1016-1020; Welch v. State Department of Highways and Public Transportation, 780 F.2d 1268, 1275-1276 (5th Cir. 1986)(en banc) (Higginbotham, J., concurring specially), petition for cert. filed, 54 U.S.L.W. 3730 (U.S. April 21, 1986); Dressman v. Costle, 759 F.2d 548, 557 (6th Cir. 1985). In upholding the application of the FLSA to employees of a public mass-transit authority, the Court stated:

[W]e need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA, as applied to [defendant] SAMTA, that is destructive of state sovereignty or violative of any constitutional provision.
. . .Congress has not simply placed a financial burden on the shoulders of States and localities that operate mass-transit systems, but has provided substantial countervailing financial assistance as well, assistance that may leave individual mass transit systems better off than they would have been had Congress never intervened at all in the area.
. . .
. . . The political process ensures that laws that unduly burden the States will not be promulgated. In the factual setting of these cases the internal safeguards of the political process have performed as intended.

 Garcia, 105 S. Ct. at 1020.

 One dramatic result of Garcia was the elimination of the exemption from FLSA overtime liability previously enjoyed by states and localities in areas of traditional governmental functions. Out of concern for the financial burden likely to be thus imposed upon state and local governments by the Garcia ruling, Congress enacted the FLSA Amendments. Among other things, they adjust "certain FLSA principles with respect to employees of states and their political subdivisions and [defer] the effective date of certain provisions of the FLSA insofar as they apply to the States and their political subdivisions." S. Rep. No. 159, 99th Cong., 1st Sess. 8, reprinted in 1985 U.S. Code Cong. & Ad. News 651, 655 (herinafter "S. Rep."); see also H. Conf. Rep. No. 357, 99th Cong., 1st Sess. 9, reprinted in 1985 U.S. Code Cong. & Ad. News 668, ...

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