Another FLSA Suit for FDNY

Three FDNY Motor Vehicle Operators (MVOs) filed a lawsuit in the U.S. District Court for the Southern District of New York last week alleging the City of New York violated the FLSA. More specifically, the plaintiffs allege the city failed to pay them for all hours worked and is not paying overtime at the correct rate of pay.

Plaintiffs Christopher Viera, Genadiy Mints, and Devin Sparks are all assigned to FDNY’s Technical Services Medical Supply Unit. According to the complaint, MVOs assigned to the Medical Supply Unit travel throughout New York City distributing medical supplies to various firehouses. The three allege the city utilizes a computerized time tracking system that only pays employees for scheduled work hours and pre-approved overtime hours. However, the three plaintiffs (and possibly other similarly situated individuals) claim to regularly work additional hours which are not compensated. The complaint cites the following as examples:

• Plaintiff Mints is regularly scheduled to work from 7:00 a.m. to 3:30 p.m., Monday through Friday. He arrives and begins working approximately 20 to 25 minutes before the start of every shift. During this time, he prepares for his shift by retrieving equipment for his work vehicle and retrieving the work vehicle keys, turning on the delivery truck so that it can have sufficient time to warm up, performing a pre-trip vehicle inspection and preparing the truck for deliveries. Additionally, plaintiff Mints occasionally works through his meal period, performing the duties listed in paragraph 9.

• Plaintiff Sparks is regularly scheduled to work from 7:00 a.m. to 3:30 p.m., Monday through Friday. He arrives and begins working approximately 20 to 25 minutes before the start of every shift. During this time, he prepares for his shift by retrieving equipment for his work vehicle and retrieving the work vehicle keys, turning on the delivery truck so that it can have sufficient time to warm up, performing a pre-trip vehicle inspection and preparing the truck for deliveries. Additionally, plaintiff Sparks occasionally works through his meal period, performing the duties listed in paragraph 9.

The plaintiffs also allege the city failed to include all remuneration in the EVOs regular rate of pay for FLSA overtime purposes. Specifically, the city provides the plaintiffs with a shift differential (in addition to their hourly wage) for driving “certain commercial vehicles.” This differential can range from $4.89 to $40.46 per shift. The plaintiffs claim this differential is not included in their regular rate of pay and as a result they are being short-changed on their overtime rate.

The FLSA requires virtually all the money an employer pays an employee included in the regular rate of pay. Fair Labor Standards Act (FLSA) overtime must be at-least time and one-half of the employee’s regular rate. Failure to include wage augments (like shift differentials) in the regular rate will likely result in an FLSA violation. This is an especially common problem in the fire service.

Additionally, the FLSA requires employers pay employees for all hours suffered or permitted to work. As a general rule, this includes the time spent loading up a work vehicle, conducting a pre-trip inspection of a work vehicle, fueling the vehicle, etc. “Off-the-clock” overtime lawsuits like this are common. Fire departments are not immune from these types of claims. Whether an employee is successful in pursuing legal claims for this time worked very often hinges on the employer’s policies, procedures, and recordkeeping.

Employers that have effective policies and procedures governing compensation practices for reported off-the-clock overtime claims and accurate records as required by the FLSA will find themselves in a much better position in the event an unclaimed overtime suit is filed.

Here is a copy of the MVO’s complaint.