United States District Court, W.D. New York
JOHN A. CRESPO, Jr.; MICHAEL J. AQUILINA; MARY ANN AUCKLAND; CHARLIE BARKOWSKI; STEVEN A. CAPPON; JAMES DeCANN; CHRISTOPHER HOWELL; VINCENT LOMBARDINI; RICHARD M. ORSINO; ROBERTO ORTIZ; DANIEL POWELL; JOHN TADDONIO; KENNETH M. WILLIS, on behalf of themselves and all others similarly situated, Plaintiffs,
COUNTY OF MONROE, NEW YORK; MONROE COUNTY SHERIFF'S DEPARTMENT; PATRICK M. O'FLYNN, in his official capacity as MONROE COUNTY SHERIFF, Defendants.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Thirteen named plaintiffs bring this action on behalf of themselves and others similarly situated, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law. Plaintiffs, employees of the Monroe County Sheriff's Department ("Sheriff's Department"), allege that defendants - Monroe County ("County"), the Sheriff's Department, and Patrick O'Flynn, who is sued in his official capacity as Monroe County Sheriff-have violated those statutes in a number of ways, which generally relate to plaintiffs' pay for attending or conducting "roll call briefings, " which are meetings that take place at the start of plaintiffs' shifts.
Defendant has moved for summary judgment dismissing the complaint. Plaintiffs have cross-moved for summary judgment on the issue of liability.
Many of the relevant facts are undisputed; at the Court's request, the parties have filed a "Joint Statement of Facts and Issues" ("JSFI"), laying out the facts and issues that are not in dispute, along with the relevant facts and issues that are in dispute. Dkt. #54.
All of the plaintiffs are currently employed in the Sheriff's Department's Court Security Bureau. All of the plaintiffs also have one of the following civil service titles: (1) Deputy Sheriff Court Security Sergeant ("sergeant"); or (2) Deputy Sheriff Court Security ("deputy").
The collective bargaining agreement ("CBA") governing plaintiffs' employment provides for a 37.5-hour workweek, from Monday through Friday; in other words, plaintiffs work a 7.5-hour shift each workday.
Under the CBA, the plaintiffs are paid at their contractual hourly rate for all hours worked up to 37.5 hours in a workweek. JSFI ¶ 1. The CBA further states that "[h]ours worked between [37.5] and  hours within the workweek shall be paid for in compensatory time off at the straight time rate." See CBA (Dkt. #46-4) § 10.2.1. Thus, for time worked between 37.5 and 40 hours in a workweek, plaintiffs earn time credits that they can use in the future.
For all hours worked in excess of 40 hours in a workweek, the CBA provides that employees will be paid at one and a half times the employee's basic contractual rate. Id. When calculating overtime, the CBA provides that hours paid but not worked for holidays, compensatory time off and vacation leave are counted as time worked, id. § 10.2.3, and that "[c]ompensatory time may be considered a manner of payment in-lieu of overtime at the option of the employee...." Id.
The parties do not dispute that at the beginning of their shifts, deputies are required to attend a 15-minute "roll call briefing." Sergeants are required to attend their own 15-minute roll call briefing, and then to attend and administer the deputies' 15-minute briefing. In other words, sergeants begin work 30 minutes before their shifts formally begin, and deputies begin work 15 minutes prior to their shifts. Those roll call briefings are not counted in plaintiffs' basic 37.5hour workweek.
With respect to these briefings, the CBA states that "[i]n recognition of the fact that all members of the bargaining unit are required to assemble for a briefing fifteen (15) minutes prior to the beginning of their tour of duty, payment for roll call shall be made." Id. § 8.5.1. Sergeants are paid a lump-sum payment ("stipend") of $88 per pay period for these briefings, while deputies receive $60 per pay period. While the parties do not dispute that in practice, sergeants are required to attend both their own and deputies' roll call briefings, the CBA does not expressly acknowledge that fact; it simply refers to employees' attendance at "a briefing, " as stated above.
Prior to July 2011, the stipends for attending roll call briefings were not used when calculating overtime pay. In other words, the County did not include the stipends when determining plaintiffs' "regular rate" of pay, which is the baseline upon which overtime pay is calculated.
The details of calculating an employee's "regular rate" are set forth in greater detail below, but at this point suffice it so say that defendants admit that the stipends should have been included in the overtime calculation. Defendants contend (which plaintiffs dispute) that their failure to do so was inadvertent and was caused by faulty programming of the County's computer system that is used for calculating employees' pay. See Def. Statement of Material Facts not in Dispute ("DSMF") (Dkt. #44-1) ¶¶ 31, 32.
The County began including the lump-sum roll call payments in July 2011. According to defendants, the County did so after an investigation undertaken in response to an action that was commenced against the County by the Deputy Sheriffs' Association in July 2009. See Dkt. #44-2 at 20, ¶ 22. The County contends, however, that its prior failure to include the stipends when calculating overtime pay did not result in paying the plaintiffs less than they were entitled to under the FLSA for overtime, because the rate used by the County has always been more generous than the rate required by the FLSA. DSMF ¶ 36. Plaintiffs dispute that contention. Plaintiffs' Response to DSMF (Dkt. #46-2) ¶ 36.
The amended complaint (Dkt. #15) contains six causes of action: three claims under the FLSA and three analogous claims under the New York Labor Law. All of the claims arise out of events that allegedly took place during the "Collective Period, " which is defined as the period beginning six years prior to the filing of the complaint, up to the date on which this action is resolved. Dkt. #15 ¶ 23.
Plaintiffs have stated that they do not oppose defendants' motion for summary judgment as to the first and third claims under the FLSA, and as to all of their Labor Law claims. See Plaintiffs' Memo (Dkt #46-1) at 4 n.3. That leaves only plaintiffs' second claim, which alleges that during the Collective Period, defendants violated the FLSA by willfully failing to include plaintiff's lump-sum stipends in their regular rate of pay when computing overtime payments. Dkt. #15 ¶ 40. That claim, however, implicates several areas of dispute, in addition to whether the lump-sum stipends should be included in the regular rate of pay, as discussed below.
I. Claims Against Sheriff's Department and Sheriff O'Flynn
Before proceeding to the merits of plaintiffs' claims, I note that plaintiffs' claims against the Sheriff's Department and Patrick O'Flynn all effectively claims against the County itself. As such, they are subsumed within plaintiffs' claims against the County. Plaintiffs' claims against the Sheriff's Department and Sheriff O'Flynn are therefore dismissed. See Doe v. Green, 593 F.Supp.2d 523, 535 (W.D.N.Y. 2009) (plaintiff's claims against county sheriff were subsumed within claims against county); Pierce v. Chautauqua County, No. 06-CV-644, 2007 WL 2902954, at *3 (W.D.N.Y. Sept. 28, 2007) ("since the Chautauqua County Sheriff's Department and DSS are merely administrative arms of Chautauqua County, the claims against them must be dismissed").
II. Stipends for Roll Call Briefings
Although only the second cause of action remains at issue, resolution of that claim presents several issues. As outlined in the parties' Joint Statement of Facts and Issues, the first area of dispute concerns the calculation of plaintiffs' "regular rate of pay" for purposes of determining their overtime rate. See JSFI ¶¶ 7-15.
Under the FLSA, employers are not permitted to "employ any... employee[ ]... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of [forty hours] 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). In common parlance, an hourly employee is entitled to be paid "time and a half" for overtime hours.
The basis for calculating an employee's overtime rate is the employee's "regular rate" of pay. The regular rate is determined "by dividing [the employee's] total remuneration for employment... in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid." 29 C.F.R. § 778.109. Thus, the calculation includes both a time component and a pay component.
"The Supreme Court has clarified that the regular rate is the hourly rate actually paid for the normal, non-overtime workweek.'" Albers v. Board of County Comm'rs of Jefferson County, Colo., 771 F.3d 697, 705 (10th Cir. 2014) (quoting Walling v. Helmerich & Payne, 323 U.S. 37, 40 (1944)). See Gorman v. Consolidated Edison Corp., 488 F.3d 586, 595-97 (2d Cir. 2007), cert. denied, 553 U.S. 1093 (2008); McNamara v. Associated Press, ___ F.Supp.2d ___, 2014 WL 4105961, at *6 (S.D.N.Y. 2014); 29 C.F.R. § 778.109. When calculating an employee's "regular rate, " an employer must generally include "all remuneration for employment." 29 U.S.C. § 207(e); Ramirez v. Riverbay Corp., 35 F.Supp.3d 513, 530 (S.D.N.Y. 2014). As this case demonstrates, however, that standard is sometimes easier to state than to apply.
As stated, the parties in this action have identified certain facts and issues about which they agree, and others about which they disagree. The parties agree that the 15 minutes each day that sergeants and deputies spend attending their own roll call briefings must be included in the time aspect of the "regular rate" calculation. JSFI ¶ 12. They also agree that the stipends that plaintiffs receive for attending briefings constitute remuneration for employment, and must therefore be included in the regular-rate calculation.
Beyond that, however, the parties disagree about certain matters related to the stipends. Specifically, they disagree about how to treat the 15 minutes that sergeants spend administering deputies' roll call briefings. Plaintiffs contend that those 15 minutes should not be counted when calculating sergeants' regular rate of pay under the FLSA, for purposes of calculating overtime.
In plaintiffs' view, sergeants' $88 stipend only compensates sergeants for attending their own briefings, not for conducting or attending deputies' briefings. JSFI ¶ 14. Defendants, on the other hand, contend that the sergeants' $88 stipend is meant to cover both the time they spend at their own briefings, and the time they spend conducting deputies' briefings. JSFI ¶ 15.
If defendants' position is correct, then sergeants' "regular rate" of pay (and therefore their overtime rate) would be less than it would be under plaintiffs' position. The reason is that, according to defendants, sergeants are compensated for 2.5 hours per week attending briefings (theirs and deputies'), as opposed to only 1.25 hours per week So defendants' position has the effect of increasing the denominator when calculating sergeants' regular rate of pay, which in turn decreases their regular rate of pay. In contrast, plaintiffs' argument that "the $88.00 biweekly roll call briefing payment [sergeants] receive is compensation for attending their own 15minute briefing, not for administering the Deputies' 15-minute briefing" (Dkt. #46-1 at 13), would decrease the denominator, and increase sergeants' regular rate of pay. That increase would result in a concomitant increase in their overtime rate.
The CBA does not expressly state whether sergeants' stipends are meant to cover their attendance at both their own and the deputies' briefings. A fair reading of the CBA, however, indicates that ...