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Conzo v. City of New York

October 23, 2009


The opinion of the court was delivered by: Cedarbaum, J.


This is a collective action under the Fair Labor Standards Act ("FLSA") on behalf of 1478 current and former paramedics and emergency medical technicians ("EMTs") employed in the New York City Fire Department ("FDNY"). Plaintiffs move for summary judgment that defendants are liable for three separate violations of the overtime requirements of the FLSA, 29 U.S.C. § 207(a).

First, they move for summary judgment on their claim that they are owed compensation for "gap time," or hours worked between regularly scheduled hours and overtime hours. Second, they move for summary judgment on their claim that they are owed back pay for fifteen to thirty minutes of uncompensated overtime performed prior to the official start of their shifts. Finally, plaintiffs claim that their overtime payments violate the prompt payment requirement of the FLSA because they regularly receive overtime pay more than two pay periods (26 days) after the overtime is worked.

Defendants also move for summary judgment on each of these three claims, on the ground that they have not violated the FLSA. In addition, defendants move for summary judgment on the ground that any damages that could be assessed against them for violations of the FLSA are offset by overpayments they have already made to plaintiffs, which may be credited toward overtime compensation under 29 U.S.C. § 207(h)(2).

For the reasons set forth below, plaintiffs' motion for summary judgment is denied. Defendants' motion for summary judgment is granted in part and denied in part.


I. Undisputed Facts

A. Gap Time

The applicable collective bargaining agreement ("CBA") specifies that plaintiffs' regular rate of pay is computed by dividing annual salary by 1957.5 hours. The CBA further specifies that plaintiffs' regularly scheduled workweek will be 37.5 hours, or five 7.5 hour shifts per week. Plaintiffs' overtime rate of compensation, mandated by the FLSA to be 1.5 times the regular rate of pay, is calculated by taking weekly salary plus shift differentials, dividing the total by 37.5 hours, and then multiplying by 1.5.

Despite the fact that the applicable CBA refers to 7.5 hour shifts, plaintiffs' actual shifts are eight hours long. Moreover, plaintiffs work a 5/2, 5/3 schedule. This means that one week they work five shifts of 8 hours and the next week they work four shifts of 8 hours. When an EMT or paramedic works an extra shift, this counts as 8 additional hours of work.

While some employees receive a half hour meal break during each shift, so that they are only on duty for 7.5 hours, it is undisputed that those plaintiffs working in the field do not receive such a break. Effective July 2006, the 2006 CBA instituted the payment of "meal money" which is paid to those workers who do not receive one half hour, duty-free meal break per shift. The 2006 CBA made the payment of meal money retroactive to 2002. Meal money is equivalent to one hour per week at the regular rate of pay.

B. Pre and Post Shift Work

Plaintiffs allege that EMTs and paramedics are required to check in with a lieutenant, change into uniform and gather and inspect personal equipment before their shifts begin. In addition, plaintiffs claim that they must change out of uniform before going home.

For the purpose of expediency, the parties agreed to designate every tenth plaintiff a "test plaintiff" and limited initial discovery to production of records related to test plaintiffs. Twenty of the approximately 140 test plaintiffs (of the 1478 total plaintiffs) were deposed in this case. Each deponent was asked whether work is regularly performed before the start of each shift. The deposition testimony documents the amount of time it takes each test plaintiff to perform each alleged pre-shift task and how often each task is performed. Plaintiffs' testimony regarding each task varies. Some plaintiffs testified that an individual task takes only a minute or two to complete while others report that the same individual task takes them 15 minutes. Some plaintiffs testified that they perform each task daily and other plaintiffs testified that they perform some tasks only once a month or never at all.

C. Late Payment of Overtime Wages

Plaintiffs receive biweekly paychecks. Generally, overtime worked in Week 1 is paid in the paycheck for Week 1 and Week 2.

Overtime worked in Week 2 is paid in the following paycheck, the paycheck for Week 3 and Week 4, along with overtime worked in Week 3.

EMTs and paramedics fill out weekly sign-in sheets which include regularly scheduled start and end times, additional hours worked and any shift differentials. These time sheets are transcribed onto Time and Payroll Report ("TPR") forms by a supervisor, checked by a Captain, reviewed and scanned by the payroll department and sent on to the city-wide payroll network, which processes them and sends out paychecks.

Between January 1, 2002 and August 19, 2006, approximately $50,000 worth of overtime was paid to the test plaintiffs more than two pay periods after the date on which it was worked. Looking at the same data from a different angle, of the 44,998 cash overtime payments paid to test plaintiffs during this time, 431, or approximately 1 percent, were late.

In order to update its accounting procedures, the FDNY is in the midst of implementing "CityTime," an electronic payroll system, which is expected to automate the FDNY's payroll. CityTime was first introduced in a limited number of FDNY locations on July 15, 2007 and is in the process of being implemented at all stations.

D. Cumulative Offsets

Plaintiffs work a 5/2, 5/3 schedule. This means that every other week, they are regularly scheduled to work four 8 hour shifts. In those weeks, the FDNY pays plaintiffs time and a half for any additional time that they work beyond their regularly scheduled 32 hours.*fn1 In addition, if a plaintiff works "late call" beyond a regularly scheduled 8 hour shift, defendants pay time and a half for those late call hours regardless of whether the 40 hour threshold is met that week.*fn2


I. Summary Judgment Standard

Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists when the evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of fact exists, the court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). Summary judgment is appropriate when "the nonmoving party fail[s] to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. ...

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