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a result of an investigation initiated by the PBA, a federal lawsuit was
filed on November 27, 2002, alleging that the NYPD was in significant
violation of the Fair Labor Standards Act (FLSA). The lawsuit contends
that police officers have not been properly compensated for overtime hours
worked and that, in many cases, the NYPD’s compensatory time-off
practices violate the FLSA. If successful, the suit will compensate members
for periods when they were unlawfully under-compensated and may go a long
way in helping our members to get a day off when they want or need it.
The FLSA is the nation’s basic wage and hour law. Originally enacted in 1938, it applied only to private employers until the mid-1960s. In 1985, the Supreme Court ruled that the FLSA could constitutionally be applied to cities and counties, opening the door to hundreds of successful law enforcement claims of FLSA violations.
One
major FLSA win occurred when Los Angeles police officers filed a suit
claiming that the LAPD wrongfully denied their requests to use compensatory
time off. The officers alleged that the city refused to allow them to
use their comp-time whenever it would cost the city overtime to “backfill”
for the absent officer, a practice contrary to the U.S. Department of
Labor’s comp-time rules. After an initial court ruling in their
favor, LAPD officers settled the case for $39 million.
One thing about the FLSA class action suits is unique — to be included, you must take action to join the suit. FLSA cases are not like traditional class action suits, where you are automatically included unless you choose to “opt out” of the litigation. Under the FLSA, you are not covered unless you affirmatively “opt in” to the suit. Unless you join the suit, you will not be covered by any settlement or judgment. So it’s important for all our members to take the time to join in this legal action.
The process is simple. You can go either to the PBA’s web page or to a special FLSA lawsuit page. At either of these sites, follow the instructions on how to join the suit. Or you can ask your delegate for the necessary paperwork you need to fill out to be included. Once you have sent in the necessary forms, the attorneys handling the case will be in touch with you to confirm that you’ve been added to the suit. Thousands of our members have already joined the Fair Labor Standards Act suit against the City of New York, with the number of participants growing rapidly each day. The action brings four basic claims against the city, though the number of claims will almost certainly grow in the future.
The four claims in the NYPD case range from the straightforward to the complicated.
Front-and-center in the suit is the claim — identical to the LAPD claim — that the city unlawfully denies requests to use comp-time. Under the FLSA, comp-time can only be denied if allowing the employee to use the time causes “undue disruption.” The law does not consider insufficient staffing an undue disruption if another officer can be paid overtime to fill the position. That’s a very important aspect of our case.
The second claim focuses on how the city counts overtime. The city’s practice is not to compensate officers for overtime until they work at least 15 minutes. Under the Department of Labor’s rules, an employer must start compensating employees for overtime when they work the greater part of fifteen minutes, or seven and a half minutes.
The third claim is that the city doesn’t always include shift differential in an officer’s overtime rate. Under the FLSA, shift differential received in a pay period must be included in the overtime rate no matter what tour the officer is assigned to. The city’s complicated shift differential practice has resulted in not including shift differential in the overtime rate for many day-shift officers.
The fourth claim is the most complicated, involving what’s known as the Section 7(k) exemption under the FLSA. Under that exemption, a law-enforcement employer has the option of not compensating police officers on a work-week basis and may instead establish a work period of between seven and 28 days in length.
The PBA has secured the services of the law firm of Aitchison and Vick, of Portland, Oregon, which has had great success in winning FLSA suits for law-enforcement groups across the nation. Will Aitchison, one of the lead attorneys in the NYPD FLSA case, has been involved in many high-profile FLSA cases across the country. He handled a suit against the Omaha Police Department, obtaining $5.8 million for police officers in a case involving comp-time violations, the failure by the city properly to compute the overtime rate, and numerous instances of officers working uncompensated “off-the-clock” time.
In Tarrant County, Texas (Ft. Worth’s county), Aitchison obtained a multi-million-dollar settlement on behalf of deputy sheriffs required to work through their meal periods without compensation. Aitchison has brought successful claims in places like Memphis and Washington State. In January, 2003, he wrapped up a case in which canine officers in Santa Clara County, California (San Jose’s County), recovered more than $30,000 each for canine unit members for at-home dog-care activities.
As this is written, PBA attorneys are reviewing the thousands of questionnaires filled out by the thousands of PBA members who have joined the suit. Already, the potential for additional claims exists.
The attorneys are also investigating whether a variety of NYPD practices violates the FLSA, including the city’s policies of capping cash overtime at 35 hours per month.
While the FLSA lawsuit may take a few years, it is a strong case to present. Again, do not forget, you have to take action to join the suit.
