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Alex B. v. City of New York

May 13, 2008


The opinion of the court was delivered by: Barbara S. Jones United States District Judge

Opinion and Order

Plaintiffs, 327 former and current Juvenile Counselors and Associate Juvenile Counselors employed by the City of New York's Department of Juvenile Justice ("DJJ"), filed this action on June 15, 2004, pursuant to the Fair Labor Standards Act of 1983, as amended, 29 U.S.C. § 201 et seq. ("FLSA"), against the City of New York and the DJJ (collectively "Defendants"), alleging that the City's compensation policies and practices violate the FLSA. On February 1, 2007, the parties entered into a partial settlement agreement, settling three claims, and agreeing to litigate the three remaining claims at issue here. Plaintiffs' remaining claims are that: (1) pursuant to 29 U.S.C. § 207(o) and associated regulations, Defendants must compensate employees in cash (rather than compensatory time) for time worked between 35 and 40 hours, in any workweek in which the employee works more than 40 hours; (2) Defendants have failed to comply with 29 U.S.C. § 207(o)(5), which requires public employers to grant requests for compensatory time off within a reasonable period; and (3) Defendants violate the FLSA's prompt payment requirement by paying overtime that is earned in the second week of a biweekly pay period in the paycheck that covers the succeeding pay period. For the reasons that follow, the Court GRANTS summary judgment in favor of Defendants.


As noted above, Plaintiffs in this case are 327 current and former juvenile counselors and associate juvenile counselors ("JCs" and "AJCs") employed by the DJJ and assigned to one of three secure detention facilities and/or to Court Services.*fn2 JCs are responsible for the custody, supervision, direct care and counseling of the juveniles in DJJ's custody. The DJJ is required by statute to maintain a minimum staff-to-resident ratio of at least one JC per every eight juveniles. N.Y. Comp. Codes R. & Regs. tit. 9, § 180.9(c)(15). On top of the responsibilities of the JCs, AJCs are responsible for supervising JCs. Specifically, AJCs approve and deny JCs' requests for leave in accordance with DJJ guidelines, complete basic annual performance appraisals for the JCs, and generally direct the work of the JCs in accordance with DJJ policies.

Under the provisions of the controlling collective bargaining agreement (the "Citywide Agreement"), Plaintiffs' salary is based on a 35 hour workweek. (See Pls.' Rule 56.1 Statement ¶ 8; Defs.' Resp. to Pls' Rule 56.1 Statement ¶ 8.) Plaintiffs are scheduled to work five shifts, commonly called "tours," each week. During each tour, JCs are scheduled to receive an unpaid duty-free hour lunch each tour. Throughout the relevant period, DJJ has had a shortage of JCs which resulted in JCs regularly working through their lunch hours or working overtime tours in order to maintain the statutory staff-to-resident ratio. Accordingly, since at least June 2001, the Plaintiffs have regularly worked more than 35 hours in a workweek.*fn3

The hours between the contractual maximum hours as set forth in an employment agreement and the FLSA statutory maximum of 40 hours are commonly referred to as "gap time" hours. In this case, the gap-time hours are those worked between 35 and 40 hours because the hours worked below 35 are compensated according to the collective bargaining agreement and hours worked beyond 40 hours are covered by the overtime provisions of the FLSA.

During the relevant period, for hours worked between 35 and 40, Plaintiffs were provided with either compensatory time or paid in cash both of which are calculated at the straight time rate. When Plaintiffs are given a choice between earning cash or compensatory time for hours worked between 35 and 40 hours, they generally choose cash.*fn4 For the most part, Plaintiffs who have received compensatory time for working these hours, did not request to receive this type of payment.*fn5


I. Plaintiffs' Compensatory Time Claims

Two of Plaintiffs' three remaining claims focus on Defendants' policies with respect to the payment of and use of compensatory time; they contend that Section 207(o) mandates that Defendants pay Plaintiffs in cash rather than compensatory time for gap-time hours and that Defendants do not grant Plaintiffs' requests to use compensatory time within a reasonable period as required by Section 207(o)(5). For the reasons that follow, Plaintiffs' contentions are unavailing.

A. The FLSA and Compensatory Time

1. The FLSA, Generally

"The FLSA . . . was enacted to ensure that employees receive a fair day's pay for a fair day's work." Gorman v. Consolidated Edison Corp., 488 F.3d 586, 589 (2d Cir. 2007) (internal quotations omitted). The Supreme Court has noted that "[t]he principal congressional purpose in enacting the [FLSA] was to protect all covered workers from substandard wages and oppressive working hours," Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739 (1981), and observed that the protections of the FLSA encompass "an individual employee's right to a minimum wage and to overtime pay," id. at 740.

Section 207 of the FLSA, entitled "Maximum hours," governs overtime pay, and provides generally that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). "Although this requirement did not initially apply to public-sector employers, Congress amended the FLSA to subject States and their political subdivisions to its constraints, at first on a limited basis, . . . and then more broadly." Christensen v. Harris County, 529 U.S. 576, 579 (2000). "[T]o mitigate the effects of applying the FLSA to States and their political subdivisions," Congress passed the Fair Labor Standards Amendments of 1985, which "permit States and their political subdivisions to compensate employees for overtime by granting them compensatory time at a rate of 1 1/2 hours for every hour worked." Id. at 579.

2. Compensatory Time

The compensatory time amendment, Section 207(o), provides in pertinent part that

Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.

29 U.S.C. § 207(o)(1) (emphases added). Although a public employer is not required to grant compensatory time under this provision, if it does, "the FLSA expressly regulates some aspects of accrual and preservation of compensatory time." Christensen, 529 U.S. at 580.

For example, relevant to this case, Section 207(o)(5) mandates that employees who have accrued compensatory time and have requested its use "[s]hall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency."

B. The Gap-Time Claim

Despite both the FLSA's general and Section 207's specific silence on gap-time, Plaintiffs contend that the FLSA nevertheless requires that when an employee works beyond 40 hours in a workweek (i.e., works FLSA overtime), that the employee must be paid for his/her gap time hours in cash.*fn6

Specifically, Plaintiffs argue that because section 207(o) is silent with respect to the use of compensatory time for gap-time hours, such a practice is excluded from the "narrow exemption" contained in 207(o). (Pls.' Mem. at 27.) The Court disagrees.

Contrary to Plaintiffs' assertions, nothing in Section 207(o) requires Defendants to compensate those gap hours in cash; its silence with respect to the use of compensatory time does not denote ambiguity that permits an interpretation imposing such a requirement. Rather, such silence in light of the statutory scheme as a whole denotes that restrictions on compensatory time for the payment of gap-time hours fall outside of the ambit of the FLSA. While the FLSA expressly regulates the use and accrual of compensatory time for overtime hours in a number of ways,*fn7 the statutory scheme does not expressly or otherwise prohibit or limit the use of compensatory time as compensation for gap-time hours. Such an omission makes sense, because payment for gap-time hours under these circumstances simply does not implicate the "two central themes of the FLSA . . . [--]its minimum wage and overtime requirements," Arnold v. Arkansas, 910 F. Supp. 1385, 1392 (E.D. Ark. 1995), and thus falls outside of the scope of the FLSA.

The legislative history to the 1985 amendments provides further support of this reading of the text of the FLSA. Following the Supreme Court's opinion in Garcia v. San Antonio Transit Authority, 469 U.S. 528 (1985), which extended the protections of the FLSA to state and municipal employees, Congress assessed the impact this would have on state and local governments. See H.R. Rep. No. 99-331 at 8 (1985). In connection with this effort, Congress sought to clarify the employment practices permitted by the Act. As the House Report reveals, Congress specifically considered the issue of gap-time compensation and sought reassurance from the DOL that it was permissible under the FLSA to offer compensatory time for gap-time hours even in workweeks over 40 hours. See H.R. Rep. No. 99-331 at 12. In response to a written inquiry from a municipality regarding whether it could continue to provide compensatory time for gap-time hours, the DOL stated that: the practice of providing time-off with pay for ... hours of work, which are not FLSA overtime hours, can be continued provided two conditions are met: (1) The first condition is that wages which are paid to an employee must, when divided by his or her work period, average no less than the minimum wage[; and] (2) ...

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