Perry v. City of New York

• Docket Number: 21-2095
• Decision Date: 25 August 2023
• Parties: Chaz Perry, Wayne Askew, Brandan Bass, James Beddia, Frantz Bonneau, et al. Plaintiffs-Appellees, v. City of New York, New York City Fire Department, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Chaz Perry, Wayne Askew, Brandan Bass, James Beddia, Frantz Bonneau, et al. Plaintiffs-Appellees,
v.
City of New York, New York City Fire Department, Defendants-Appellants.

No. 21-2095

United States Court of Appeals, Second Circuit

August 25, 2023

Argued: February 7, 2023

In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City. A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City. The City now appeals, raising four arguments: (1) the jury's liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue; (2) the jury's willfulness finding was not supported by the evidence; (3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and (4) the district court incorrectly forbade the jury from considering whether one

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component of the plaintiffs' post-shift work was de minimis and therefore noncompensable. The City accordingly asks that we reverse the jury's verdict or remand for a new trial on damages. We decline to do so and instead AFFIRM in toto.

JAMISON DAVIES (Richard Dearing, Devin Slack, Daniel Matza-Brown, on the brief), of counsel, for Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY for Defendants-Appellants.

SARA L. FAULMAN (Gregory K. McGillivary, Molly A. Elkin, Diana J. Nobile, on the brief), McGillivary Steele Elkin LLP, Washington, DC for Plaintiffs-Appellees.

Before: JACOBS, LEE, and PEREZ, Circuit Judges.

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DENNIS JACOBS, Circuit Judge:

In this collective action, a group of EMTs and paramedics won a multimillion-dollar verdict against their employer, the City of New York, for unpaid overtime wages. The 2,519 plaintiffs alleged that the City required the plaintiffs to perform work tasks before and after their shifts but compensated for that time only if plaintiffs requested overtime pay. After a twelve-day trial, the jury agreed and found that the City's failure to pay for work it required was a willful violation of the Fair Labor Standards Act ("FLSA").

The City's principal argument on appeal is that it cannot be held liable for the unpaid overtime because it affords an opportunity to report overtime work and, since the plaintiffs failed to report the work at issue, the City did not know that any plaintiff was being short-changed. But an employer must pay for all work it knows about or requires, even if the employee does not specifically request compensation for it. Whether an employee reports overtime work will often be relevant to an employer's knowledge of the work-but allowing, or even requiring, an employee to report overtime work does not absolve employers of the obligation to compensate for work they suffer or permit.

Moreover, we now hold that whether an employer knows an employee is not being paid is irrelevant to FLSA liability. If the employer suffers or permits the work-either by requiring it, knowing about it, or failing to exercise reasonable diligence to discover it-then it must compensate the employee, even if the employee failed to report the work and even if the employer did not know that the employee was working unpaid. And because the record supports the jury's finding that the City had a policy or practice of requiring plaintiffs to perform work before and after their shifts, we uphold the jury's verdict that the City violated the FLSA by not compensating them for that work.

Nor do the City's other arguments require reversal or vacatur. First, the jury's willfulness finding is adequately supported by evidence that the City knew the plaintiffs were performing unreported extra-shift work yet took insufficient action to remedy the situation or to confirm its assumption that it

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was in compliance with the law. Next, the City complains that the district court should have-but did not-instruct the jury that plaintiffs had to show that 100 percent of the time included in plaintiffs' damages calculation was FLSA-compensable. We conclude that this was not fatal to the verdict, since making such a showing would have been impossible in this case, and plaintiffs put forward an adequate approximation that showed the amount of their uncompensated work as a matter of just and reasonable inference. Finally, the City was not entitled to have the jury determine whether one certain component of the plaintiffs' post-shift work was de minimis-an issue decided against the City at summary judgment. The de minimis inquiry generally applies to the claimed work as a whole, not to each task the employer requires. An employer may not avoid FLSA liability by segmenting extra-shift work into small tasks that may separately be deemed de minimis. And here, remand is inappropriate because no reasonable jury could have found for the City under any permissible framing of the de minimis inquiry.

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On this appeal from a jury verdict, the facts are derived from trial testimony with all inferences drawn in favor of the plaintiffs. Plaintiffs are 2,519 Emergency Medical Technicians ("EMTs") and paramedics^[1] employed by the Emergency Medical Services ("EMS") division of the New York City Fire Department ("FDNY") and thus ultimately by the City of New York (collectively, "the City").^[2] As emergency responders, plaintiffs provide time-sensitive, potentially life-saving medical care in myriad emergency situations, including

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acute illness, drug overdoses, accidents, and shootings. Plaintiffs work eighthour shifts during which they are on call. Though based out of stationhouses throughout New York City, plaintiffs spend their shifts waiting in an ambulance at a designated location away from the stationhouse. An ambulance crew can receive a call at any time during the eight-hour shift.

Preparation is needed before EMTs can set out with an ambulance. In order to respond to calls effectively and safely, each EMT has a set of personal protective equipment ("PPE"), including helmet, gloves, pants, coat, and a respirator. Before an EMT can log on to her ambulance, she must retrieve this PPE from her locker and inspect it to make sure it is in order. The same goes for gear, including a radio, radio holster, stethoscope, shears, and a duty belt. An EMT also carries a "Technician's Bag" with additional first aid materials, which (like the other equipment) must be retrieved and inspected. Finally, once the outgoing shift has returned with the ambulance, EMTs must perform a thorough inspection of the vehicle before being able to log on as available to respond to a call.

There is a similar sequence at the end of a shift. After returning to the station, plaintiffs: exchange certain equipment with the oncoming shift, noting the exchange in a logbook; inform the oncoming shift of pertinent information, such as hospital capacity, special events in the city, or issues with the ambulance; and secure and store their PPE and personal gear in the appropriate lockers.

The City's electronic timekeeping and payroll system, CityTime, utilizes a "pay to schedule" approach. J.A. 2920. Under that system, employees are automatically paid only for time during their shift, not for time at the station performing work before or afterward. CityTime registers presence at the station to the minute using scanners located by the entrance of each stationhouse. So, if an EMT scans in to CityTime ten minutes before the shift and scans out ten minutes after it ends, she will automatically be paid for the eight hours during the shift but not for the ten-minute intervals before and after, chunks of time the parties call "slivers." See, e.g., id. Per City policy, an EMT who performs work

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during a sliver must submit an overtime request in order to be paid.^[3] Plaintiffs regularly requested overtime pay, including sometimes for pre-shift work. J.A. 2459. But plaintiffs did not request overtime pay on 99 percent of the occasions they scanned in before their shifts.^[4] J.A. 2410.

In February 2013, plaintiffs brought this lawsuit, alleging that the City willfully violated the FLSA through a policy or practice of requiring work without payment unless pay was requested. They sought backpay for their unpaid extra-shift work. The City's motion to dismiss the complaint was denied. Perry v. City of New York, No. 13-cv-1015, 2013 WL 6641893 (S.D.N.Y. Dec. 17, 2013).

Following discovery and supplemental pleading, the parties cross-moved for summary judgment; the district court granted each motion in (small) part but left for the jury the key questions of the City's policy regarding extra-shift work and the willfulness of any violation. See Perry v. City of New York, No. 13-cv-1015, 2018 WL 1474401 (S.D.N.Y. Mar. 26, 2018) ("Perry I"). The district court then certified plaintiffs' suit as a "collective action." Perry v. City of New York, No. 13-cv-1015, 2019 WL 1146581 (S.D.N.Y. Mar. 13, 2019) ("Perry II"); see 29 U.S.C. § 216(b) (permitting collective suits "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated"). The plaintiffs were similarly situated, the district court ruled, "with regard to [the allegation that] Defendants have a policy or practice requiring

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EMTs/Paramedics to conduct pre- and post-shift work, and that they are not compensated for all of this work." Perry II, 2019 WL 1146581, at *8.

In a twelve-day trial held six-and-a-half years after the complaint was initially filed, the jury heard testimony from thirteen plaintiffs, multiple FDNY supervisors and...