The United States Court of Appeals for the Second Circuit has rejected an appeal filed by the City of New York following a 2019 jury verdict that awarded almost $18 million in unpaid wages, overtime, and damages to a class of more than 2,500 FDNY EMTs and paramedics. This most recent decision “might” signal an end to this long and arduous legal battle that began in 2013 when a group of FDNY EMTs and medics filed a federal lawsuit alleging FDNY violated the FLSA. The EMTs and medics successfully argued that they were required to perform uncompensated work before and after their work shifts in violation of the law. For more on the jury’s verdict, click here.
The FLSA requires employers pay employees for all hours worked. This requirement is not limited to an employees assigned work shift. The city raised several arguments in its appeal of the jury’s decision. The city’s main argument raised in the appeal was that the EMTs and medics had an obligation to report any undocumented work time. Since the EMTs and medics did not request to be paid for the pre-and-post shift work, the city shouldn’t be liable for that worktime. The court of appeals disagreed with that assertion. Quoting from the decision:
- 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.
The city also argued that the amount of time EMTs and medics spent at the end of their shift exchanging equipment with the incoming crew was so insignificant that it was not compensable. This argument was based on the de minimis doctrine. The Department of Labor (and the vast majority of courts) have found infrequent and insignificant periods of worktime beyond the scheduled work shift, “which cannot as a practical matter be precisely recorded for payroll purposes” do not have to compensated.
However, this only applies to worktime that involves “uncertain and indefinite periods of time” that last only “a few seconds or minutes in duration.” Department of Labor guidance further states that: “an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained.”
The court of appeals rejected the city’s de minimis claims. The court found that exchanging EMS equipment with oncoming personnel was one of several tasks required of the EMTs and medics that occurred both before and after their work shifts. It would be “incompatible” with the FLSA and past case law to allow an employer to differentiate between various required pre-and-post shift work activities and then argue that each activity only amounted to a few seconds or minutes of time. Quoting from the decision:
- The de minimis doctrine is a limited, judicially-created exception to the FLSA’s fundamental rule that employees must be paid for their work. The focus is on avoiding “[s]plit-second absurdities” and claims for “trifles.” The Department of Labor has warned against potential abuse of the de minimis doctrine: although “insubstantial or insignificant periods of time . . . may be disregarded,” “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.” So, once an employee “is required to give up a substantial measure of his time and effort,” “compensable working time is involved” and the claim is not de minimis.
- The City’s approach would make the de minimis doctrine a loophole that compromises the FLSA’s mission “to guarantee compensation for all work or employment engaged in by employees covered by the Act.” “[T]o give the de minimis rule too broad a reach would contradict congressional intent by denying proper effect to a statute that is ‘remedial and humanitarian in purpose.’”
Do you have questions about pre-and-post shift work activities and the FLSA? If yes, please join us next week for the last delivery of the FLSA for Fire Departments live webinar for 2023. Also, we recently announced that we will begin offering the FLSA for Fire Departments in-person for 2024. Our first live class is scheduled for February 2024 in Georgetown, Texas.
Here is a copy of the decision.