$3 Million Reasons Why a Collectively Bargained ‘MOU’ Will Not Trump the FLSA’s Overtime and Regular Rate Requirements

Today’s FLSA Question: Can the terms of a negotiated agreement between a union and an employer [i.e., collective bargaining agreement, memorandum of understanding, etc.] supersede the FLSA’s overtime requirements?

Answer: No, a negotiated agreement between a union and an employer will not supersede the FLSA’s overtime requirements. This is a relatively common misconception when it comes to the impact of collective bargaining on an individual’s rights under the FLSA. The FLSA sets the minimum requirements related to minimum wage and overtime. As a rule, collective bargaining agreements (CBAs) and Memorandum of Understandings (MOUs) between a union and an employer can provide better or more lucrative wages and overtime eligibility for union members. However, any CBA or MOU that provides a lesser benefit then required by the FLSA is unenforceable.  

A recent settlement of a longstanding dispute between emergency 911 dispatchers and Nassau County, New York shows the importance of understanding the potential FLSA implications of a mutually agreed upon labor agreement. In October 2016, a group of eight police dispatchers filed a federal lawsuit in the Eastern District of New York. The dispatchers made several claims including violations of state and federal laws related to their wages and overtime. Eventually more than 200 dispatchers would join the suit. For the sake of this post, we will only focus on their FLSA claims.

According to the dispatchers, the county and the union that represented the dispatchers entered into a “Memorandum of Understanding” in 1994 that set the dispatchers’ work and pay schedule. The dispatchers’ schedule was based on a 7-week rotation of alternating 12-hour work shifts. The dispatchers worked three 12-hour shifts per week [36 hours per week] for six weeks. This was followed by a seventh week in which the dispatchers worked four 12-hour shifts [48 hours]. At the conclusion of the seventh week, the schedule would repeat itself.

The dispatchers claimed that the county failed to pay overtime for hours worked over forty during this seventh week. Additionally, the dispatchers argued that he county improperly calculated their regular rate as a result of the varying hours worked between the different workweeks. The FLSA’s default overtime provisions require that overtime be paid for hours worked over forty every 7-day workweek. The FLSA forbids the averaging of a civilian public safety dispatcher’s hours worked [when in excess of 40] across multiple workweeks. In 2021, following years of contentious litigation, the parties agreed to a $3 million settlement to settle all claims related to the initial lawsuit. A total of $2.1 million was allocated to back wages and damages, and an additional $900,000 to pay the dispatchers’ attorneys.

Now fast forward to March 2023. The county agreed to settle another virtually identical lawsuit between thirty-six dispatchers that could not be included in the original lawsuit, because they were hired during the tail end of the initial litigation. This settlement amounted to another $41,750 in back wages and attorney fees for the second smaller group of dispatchers. As is common in most, if not all FLSA settlements, the county maintains that it did not violate either the FLSA or state laws, however at the end of the day opted to settle the dispatchers’ claims to avoid the costs and uncertainty of continued litigation.

The specific facts of this settlement are not as important as the underlying principle that the FLSA’s minimum standards cannot be reduced or waived under collective bargaining agreements. It is imperative that professionals responsible for paying firefighters and other emergency service workers have a good understanding of the FLSA. The art of collective bargaining often requires give-and-take on both sides of the bargaining table. There are no winners when a mutually agreed upon compromise between labor and management violates the FLSA.

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Here are the copies of the initial complaint and eventual settlement(s) between the 911 dispatchers and Nassau County.