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Second Circuit Holds Employers Cannot Avoid Overtime Pay By Relying On Employee Reporting

Disclaimer: The discussion contained herein may not apply to the specific facts of your situation. Moreover, posts may not reflect subsequent developments in the law. As such, nothing contained in any blog post is meant to constitute legal advice. There is no substitute for the tailored advice of a qualified attorney who has listened to your story and investigated your case. Burdick Law PLLC did not represent either party in the herein-described case.


Has an employer ever told you that they're paying you for a shift, but the time before and after that you work for free? Read on.


New York City ambulance workers typically work eight-hour shifts, five days a week. But they regularly (even usually) must come in a few minutes early and leave a few minutes late in order to complete all their assigned tasks, such as preparing and storing their personal protective equipment ("PPE"), which often meant they worked more than forty hours a week. Employees punched a time clock when they arrived and left, which should have made it easy for the City to pay for all hours worked.


But for years, despite having the information handy, the City did not pay overtime unless employees filed paperwork specifically requesting it. Possibly due to a mistaken belief they were not entitled to overtime for these activities, employees almost never did file that paperwork. (Sidebar: Employees are entitled to be paid for all hours worked, but by law, certain "preliminary" and "postliminary" activities – like commuting, changing and showering – are not usually considered "hours worked." See 29 CFR § 790.7. The work here did not fall within that exception.)


In the long-running Perry v. City of New York litigation, a group of over 2,500 EMTs and paramedics alleged that they were not paid overtime for their pre-shift and post-shift work. After a nearly $18 million verdict for the plaintiffs (that's a lot of plaintiffs!), the City appealed. It insisted that employees were free to request overtime and they didn't do so. Therefore, in the City's view, it was free to assume they hadn't worked overtime if they didn't report overtime.

The Second Circuit unanimously rejected the City's argument, reiterating the well-worn rule that "an employee’s failure to report work the employer in fact knew about or required does not protect the employer from [Fair Labor Standards Act] liability." Sure, an employer is free to require reporting, and an employer may in some cases argue that it did not know about work that was not reported. But if the employer did know about the work – as the City did here from the time clocks – it could not shift the recordkeeping burden to the employee. As the court wrote,


In any wage-and-hour regulatory scheme, somebody must bear ultimate responsibility for recording time worked and for ensuring that payment is made. From Caserta [v. Home Lines Agency, Inc., 273 F.2d 943 (2d Cir. 1959)] on, we have recognized that the FLSA places the payment obligation on employers, a congressional choice consistent with the desire to "remedy the 'evil of overwork'" and to "apply financial pressure on employers to reduce overtime" ... If it wishes to avoid the expense of overtime work it requires, the employer must prevent the work from occurring.


Slip op. at 9 (cleaned up).


The City had to pay nearly $18 million - over $7 million in back pay, the same amount in liquidated damages, plus attorneys' fees. If the City had simply paid for the time that employees were punched in, it would have avoided over $10 million in damages and fees.


Employees should be aware of their right to be paid for all hours worked. Employers will often try to designate some time as "nonproductive" or "preliminary" to avoid paying what they owe, but don't buy it! Work is work, and you're generally entitled to be paid for all of it – and time and a half for overtime. If your employer has refused to pay you overtime for hours you worked over 40 in a week, contact Burdick Law PLLC today.

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