The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff Eric Edwards brings this suit on behalf of himself, and approximately 900 Corrections Officers employed or formerly employed by the New York City Department of Corrections ("DOC") who filed consents to join this action, alleging violations of the Fair Labor Standards Act ("FLSA"), principally for the failure to pay sufficient overtime. The plaintiffs assert: (1) that time spent donning and doffing their duty uniforms and equipment is compensable under the FLSA; (2) that they were not paid for overtime while waiting for relief officers to arrive; (3) that defendant failed to properly calculate overtime;*fn1 and, (4) that their overtime checks were delayed. Both plaintiffs and defendant City of New York ("City") have moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P. While the plaintiffs have moved for summary judgment on each of these four claims, the defendant only seeks
(1) to bar FLSA claims accruing earlier than two years before a plaintiff joined this lawsuit and, (2) summary judgment on the donning and doffing claim.*fn2 For the following reasons, the plaintiffs' motion is denied and the defendant's motion is granted.
Unless otherwise noted, the following facts are undisputed. The majority of corrections officers employed by defendant work on a schedule of four days on and two days off.*fn3 A regular tour is eight hours and thirty-one minutes. While many of the plaintiffs work on Riker's Island, others are assigned to different facilities, including the Manhattan Detention Complex; 100 Centre Street, Central Booking; Bellevue Hospital Prison Ward; Brooklyn Detention Complex; Elmhurst Hospital Prison Ward; and, the Queens Detention Complex.
A. Time Spent Donning and Doffing Uniforms
Most officers change into their uniforms and equipment in the locker room of their assigned facility.*fn4 The DOC "duty uniform" consists of a uniform shirt, to which DOC emblems and badge are attached; trousers; black socks; black military laced leather oxford or patent leather shoes; tie; and, tie clasp. DOC "duty uniform equipment" includes a bullet or slash resistant vest, a trouser belt, and an equipment or "utility" belt to which are attached a handcuff case, duty knife and case, flashlight, memo book, pen and pencil holder, and glove pouch.*fn5
Eight plaintiffs testified that it takes them between four and twenty minutes to put on or to take off both the duty uniform and equipment, including the slash resistant vest. Plaintiffs testified that it takes between one and five minutes to put on and between thirty seconds and three minutes to take off a slash resistant vest.
Officers bring their uniforms and slash resistant vests home for laundering. Although DOC regulations do not preclude plaintiffs from wearing their duty uniforms while travelling to and from work, only three plaintiffs report having arrived to their assigned tour in at least part of their uniform. Fourteen plaintiffs, by contrast, testified that they have never reported to a DOC facility in any part of their uniform. In addition to wanting to change into clean and comfortable clothing, plaintiffs testified that they do not wear their uniforms to work to avoid being recognized as a corrections officer by a former inmate, and being mistaken for a police officer.
Regulations forbid off-duty officers from wearing "any distinguishable uniform item with civilian clothes except the authorized shield when required." Deputy Warden Peter Panagi ("Panagi") testified that corrections officers are not permitted to wear their uniforms off duty if the purpose is "to be recognized as a correction officer," or "in order to speak as a spokesperson for the Department."
The parties dispute whether on-duty officers were routinely relieved from their shifts late, and whether supervisors discouraged officers from requesting compensation for overtime caused by late relief. Additionally, the parties dispute whether the defendant posted adequate notice of its employees' right to earn overtime compensation.*fn6
DOC tracks plaintiffs' hours by requiring corrections officers to sign in and out of a log book at the "exact time" of their arrival and departure from their assigned facility. To receive payment for overtime work, officers must submit overtime slips accounting for any time beyond ten minutes that they worked in excess of their regularly scheduled tours.
At least four plaintiffs testified that they did not sign in and out of their facility's log book at the "exact time" of their arrival and departure, and instead signed in and out at the time corresponding to the start and end of their tour. Additionally, while all plaintiffs testified that they had received overtime at some point during their employment with DOC, a number of plaintiffs testified that they only filed overtime slips if they worked more than fifteen to sixty minutes beyond the end of their shift: five only file overtime slips if they remain at their post for an additional fifteen minutes; and, nine only file for overtime if they work for an additional thirty to sixty minutes. Several plaintiffs testified that on certain occasions they did not submit overtime slips because they did not want the officer scheduled to relieve them to be penalized for being late. Several plaintiffs also testified that they believed that their supervisors would discard or refuse to sign-off on overtime slips for less than a certain amount of time. The plaintiffs have not identified any admissible evidence to support such a belief. For instance, the plaintiffs have not identified any supervisor who told them not to file overtime slips or any occasion on which they witnessed the destruction of an overtime slip.
C. Calculation of Overtime and Payroll Practices
Pursuant to a Collective Bargaining Agreement ("CBA") between the Correction Officer's Benevolent Association and the City for the period between May 1, 2005 and July 31, 2007, corrections officers are paid an annual salary plus "[a]ll ordered and/or authorized overtime in excess of forty (40) hours in any week or in excess of the hours required of an employee by reason of his regular duty chart if a week's measurement is not appropriate." As defendant's Rule 30(b)(6) witness explained, since many officers work either a 34 or a 42 hour week, instead of paying overtime for all hours in excess of 40 hours per week, officers "are paid overtime in excess of their daily tour." For instance, if an officer works a full eight and a half hour shift and then works an additional "hour and-a-half in excess . . . they get an hour and-a-half overtime regardless of what they do the rest of the week."
The CBA further provides that officers are entitled to eleven paid holidays. These holidays are days on which most City offices are closed. Officers who are required to work on these holidays receive double pay for those days.
The CBA establishes a ten percent night shift differential when more than one hour is worked between 4:00 p.m. and 8:00 a.m. If an officer assigned to a tour that qualifies for the night shift differential works overtime, overtime pay is based on a rate that includes the night shift differential.*fn7
The City uses the Payroll Management System to pay all of its employees, including the plaintiffs. DOC employees are paid on a bi-weekly basis. The pay period is referred to as the Regular Gross Period (the "RGP"), and it begins on a Sunday and ends on a Saturday two weeks later. A paycheck is issued on the Friday following the end of the RGP. The payroll calculation process is referred to as Pay Calculation ("PayCalc"). Time sheets are submitted after a week of work. Thus, the second week of the RGP is known as the "anticipatory week" since the City pays its employees their regular base salary for that week because timekeepers do not yet have the timesheets for that week.*fn8 If the timesheets for the anticipatory week include overtime hours, those hours are included in the next PayCalc processing and paid at the end of the next RGP. In short, overtime earned during the first week of the RGP is included in the paycheck covering that RGP and overtime from the anticipatory week is paid in the subsequent paycheck.
On March 27, 2008, Edwards filed this action. By Order dated August 7, all claims against DOC were dismissed. On September 5, the City filed its answer. On November 3, the Court approved a notice of pendency of a collective action to be distributed to prospective plaintiffs. On March 15, 2010, the Court so-ordered a stipulation between the parties which stated that:
For purposes of discovery, summary judgment, and trial, the parties have selected a group of Test Plaintiffs from all opt-in plaintiffs which consist of agreed upon representative test plaintiffs from a majority of DOC facilities which are among the facilities subject to the instant action (the "Test Plaintiffs").
The parties agreed that rulings on the fifty Test Plaintiffs would be binding on all plaintiffs. Discovery closed on February 28, 2011. An Order of May 17 struck points three through seven of the plaintiffs' memorandum of law in opposition to the defendant's motion for partial summary judgment. The ...