Scott v. City of New York
| Citation | 592 F.Supp.2d 475 |
| Decision Date | 10 November 2008 |
| Docket Number | No. 02 Civ. 9530 (SAS).,02 Civ. 9530 (SAS). |
| Parties | Keenan M. SCOTT, et al., Plaintiffs, v. CITY OF NEW YORK and The New York City Police Department, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Thomas P. Puccio, Esq., Law Offices of Thomas P. Puccio, New York, NY, Gary A. Orseck, Esq., Lawrence S. Robbins, Esq., Damon W. Taaffe, Esq., Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, Will Aitchison, Esq., Mark A. Crabtree, Esq., Aitchison & Vick, Inc., Portland, OR, John T. Brennan, Esq., Law Offices of John T. Brennan, Brooklyn, NY, for Plaintiffs.
Lorie E. Almon, Esq., Gerald L. Maatman, Jr., Esq., Peter A. Walker, Esq., Robert S. Witman, Esq., Seyfarth Shaw LLP, James Lemonedes, Georgia Pestana, Assistant Corporation Counsel, New York, NY, for Defendants.
I. INTRODUCTION
Over fifteen thousand current and former New York City police officers and detectives ("plaintiffs") assert that the City of New York and the New York City Police Department ("NYPD") (collectively "defendants") systematically violate plaintiffs' overtime rights under the Fair Labor Standards Act ("FLSA").1 This lawsuit addresses the policies and practices of the nation's largest police department, and plaintiffs claim hundreds of millions of dollars in damages based on defendants' alleged failures concerning the accrual, use, and payment of overtime.
Plaintiffs now move for summary judgment concerning their expert's calculation of damages related to two of their five claims. Because I find that plaintiffs' calculations are based, in part, on several errors of law, their motion for summary judgment is denied. I will, however, explain the conclusions supporting this decision in order to facilitate more accurate calculations as this case proceeds.2
II. BACKGROUND
Plaintiffs filed their initial complaint on November 27, 2002, and an amended complaint on February 24, 2003. The amended complaint asserts five distinct claims; two are relevant to this motion. First, plaintiffs claim that some regular work schedules contain overtime, for which they are not compensated (the "chart" claim).3 Second, plaintiffs claim that defendants improperly exclude shift differentials and longevity pay when calculating FLSA overtime rates (the "regular rate" claim).4
On June 23, 2004, this Court denied defendants' motion to dismiss one of plaintiffs' claims, as well as defendants' motion to join plaintiffs' unions as necessary parties.5 On December 27, 2004, this Court denied defendants' motion to dismiss the chart claim, the regular rate claim, and another of plaintiffs' claims.6 Finally, on August 28, 2008, this Court granted in part and denied in part both parties' cross-motions for summary judgment.7 In particular, this Court granted summary judgment to plaintiffs as to liability only on their chart and regular rate claims.8
Plaintiffs' damages expert—Murray Simpson—has prepared damages figures concerning the chart and regular rate claims. These calculations include seven features that defendants contest. First, the calculations do not include officers' semi-annual "holiday pay" as a credit against outstanding FLSA liabilities.9 Second, the calculations apply FLSA credit only against liabilities accrued in the same twenty-eight day "work period" in which the credit is earned. If credit in a single work period exceeds liabilities, the excess credit is effectively lost.10 Third, plaintiffs' calculations include credit for contractual overtime only when officers were compensated in cash. If officers elected to receive compensatory time off in lieu of cash, no credit is included in plaintiffs' calculations.11 Fourth, plaintiffs determined an officer's regular rate of pay using only regularly scheduled tours of duty, rather than the total number of hours worked in a given work period.12 Fifth, plaintiffs value compensatory time used based on an officer's base hourly wage, rather than the regular rate of pay.13 Sixth, plaintiffs attribute the hours worked after an individual crosses the statutory overtime threshold to FLSA overtime, rather than permitting the employer to allocate time between contractual and statutory overtime.14 Seventh, plaintiffs calculate damages based on a three-year statute of limitations period, rather than the two-year statute of limitations used for nonwillful FLSA violations.15
The terms and conditions of plaintiffs' employment by defendants are set forth in the Collective Bargaining Agreements ("CBAs") reached between their unions and the City of New York.16 The CBAs state, "`Each employee shall receive eleven (11) paid holidays annually, payments for which shall be made in accord with existing procedures.'"17 This comports with the eleven paid holidays provided to all New York City employees.18 Unlike the actual work schedules of most city employees, however, officers' regular duty charts do not account for holidays.19 Officers are ordered to work some holidays and are given regular days off on others.
The CBAs award overtime for three categories of work. First, overtime compensation at a rate of time and one-half is awarded for all work "in excess of forty (40) hours in any week or in excess of the hours required of an employee by reason of the employee's regular duty chart."20 Second, officers are awarded overtime compensation when they are recalled to duty between assigned shifts and released prior to commencement of their next shift.21 Third, patrol officers are awarded overtime for time spent traveling to posts outside of their permanent command.22 Compensation for this contractual overtime may be taken either in cash or compensatory time off, at the employee's sole option.23
Under the CBAs, police officers are entitled to longevity payments once they have reached certain thresholds of experience.24 The CBAs treat these payments as adjustments to basic salaries and include them in tables of officers' yearly "salary rates."25 In addition, the CBAs provide for shift differentials of ten percent for all hours worked between 4:00 p.m. and 8:00 a.m.26
Defendants' current bookkeeping methods place earned compensatory time in either a "FLSA bank" or a "non-FLSA bank."27 These "banks" hold only compensatory time, as cash overtime is disbursed at the end of a work period. These separate tallies distinguish between compensatory time provided as overtime compensation under the CBAs (the non-FLSA bank) and overtime compensation under the FLSA (the FLSA bank). The dividing line between FLSA overtime and non-FLSA overtime is the 171-hour threshold for statutory overtime for police officers.28 When designating overtime as FLSA or non-FLSA within a given work period, defendants' payroll system first counts regularly scheduled hours, then overtime for which officers elected to receive compensatory time, then overtime for which officers elected to receive cash.29 Therefore, under the NYPD's bookkeeping rules, officers will not accrue any time in their FLSA bank unless their regular hours and overtime hours for which they elect to receive compensatory time total more than 171 hours. Overtime hours worked for cash compensation can have no effect on this calculation.
III. APPLICABLE LAW
The August 28, 2008 summary judgment opinion laid out the legal standards concerning summary judgment, statutory interpretation, and deference to administrative materials.30 Those standards continue to govern this case, and the Court assumes familiarity with them for the purpose of this decision.
FLSA credits three categories of contractual compensation ("contract overtime") towards overtime compensation mandated by the Act ("statutory overtime").31 First, employers receive credit for "extra compensation provided by a premium rate" for hours worked "in excess" of an employee's regular working hours.32 Second, employers receive credit for "extra compensation provided by a premium rate" of one and one-half times the rate paid for non-overtime for work performed on weekends, holidays, and other days of rest.33 Third, employers receive credit for "extra compensation provided by a premium rate" of one and one-half times the rate paid for non-overtime for work performed "outside" the regular workday or workweek.34
On the other hand, several categories of compensation outside of regular wages are not credited against statutory overtime.35 Only one is relevant to this case:
payments made for occasional periods when no work is performed due to vacation, holiday, illness ... or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer's interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment.36
When an employee is "entitled to a certain sum as holiday or vacation pay, whether he works or not, ... the certain sum allocable to holiday or vacation pay is still to be excluded from" the category of supplemental pay that is credited against FLSA obligations.37 By contrast, where an employee is entitled to some holiday pay regardless of whether he works but will be given greater compensation if he is required to work on a holiday, the increased compensation is creditable against FLSA obligations.38
The FLSA fails to note expressly whether those credits must be applied in the particular workweek or work period in which they accrue. The text of the Act merely states, "Extra compensation ... shall be creditable toward overtime compensation payable pursuant to this section...
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