The collective action involves a class of 3,879 safety agents who allege they were denied pay for pre-shift duties, meal period work, and travel time to their overtime stints.
Supervisors were unaware of pre-shift work performed by school safety agents (SSAs), given that the supervisors were sometimes located at different schools, had different arrival times, or worked a different tour, a federal district court in New York concluded. Therefore, the court denied the employees’ motion for summary judgment, and instead granted summary judgment in the employer’s favor, on their claims seeking compensation for unpaid pre-shift and meal period work. However, the court denied the employer’s summary judgment motion as to the SSAs’ other off-the-clock claims. Moreover, it awarded summary judgment in the employees’ favor on their claims for travel-time pay (Worley v. City of New York, February 12, 2020, Schofield, L.).
Uncompensated work. The plaintiffs were employed as School Safety Agents Level One within the School Safety Division of the New York Police Department. SSAs worked in one of three roles: (1) providing school security; (2) providing security services by vehicle; and (3) performing office work. SSAs are generally scheduled to work 40 hours per week and have a designated 30-minute meal period which is automatically deducted each day. Because SSAs are classified as a “pay-to-schedule” job title, they are paid only for their regularly scheduled shifts unless timekeepers affirmatively input overtime.
Overtime claims. The plaintiffs asserted that the school-based SSAs performed uncompensated work setting up prior to shift, and that mobile SSAs performed uncompensated work picking up their vehicles before the start of tour duties, responding to incidents during unpaid meal periods, and traveling to second work locations for overtime shifts. The parties dispute whether pre-shift, meal-period and travel-time work is compensated overtime work. According to the employees, the city does not pay for such time, and they are not permitted to use unscheduled overtime forms to request compensation for these types of work. The employer countered that the employees were paid for both scheduled and unscheduled overtime, which included these types of work.
Other allegations. In addition to the pre-shift, meal-period, and travel-time claims, the SSAs alleged that the employer failed to properly calculate their regular rate of pay, failed to pay overtime in a timely manner, and improperly compensated them at the straight-time rate (rather than the overtime rate) when paying overtime and compensatory time. They also asserted that the employer’s conduct was willful and not in good faith, such that they were entitled to liquidated damages and a third year of recovery.
Summary judgment motions. The parties filed cross-motions for partial summary judgment on the SSAs’ suit for alleged violations of the FLSA. For its part, the defendant argued that the off-the-clock claim failed as a matter of law because the employer lacked actual or constructive knowledge of any uncompensated work, and because the employees failed to comply with established procedures for reporting overtime. The employer also asserted that the employees were not entitled to liquidated damages because it acted in good faith, and that the FLSA’s statute of limitations should be limited to two years because the employees cannot show that it willfully violated the law.
Evidence of off-the-clock work. An employee must prove that he performed unpaid work, and also that the employer had actual or constructive knowledge of that work, in order to establish liability for off-the-clock work. Here, the employees proffered evidence that SSAs performed some amount of uncompensated pre-shift, meal-period and travel-time work as a matter of just and reasonable inference, the court found.
With regard to the pre-shift work, the employees pointed to deposition testimony from numerous SSAs that they consistently arrived at school locations approximately 10 to 20 minutes before their shifts to perform tasks such as opening logbooks, turning on security cameras, unlocking doors, and setting up front desk and main desk areas. Further, they submitted testimony that SSAs consistently picked up their vehicles approximately 10 to 15 minutes before the start of their tour start time. As for meal-period work, the plaintiffs presented testimony from numerous SSAs that they were frequently required to respond to incidents during lunch and did not take full meal breaks. There was also testimony from SSAs that they worked scheduled overtime shifts at second worksites following their normal shift.
In this case, there were no records showing the pre-shift, meal-period, and travel-time work. The employees attributed this to the fact that they were told they could not request overtime for pre-shift and meal-period work, and they were under the impression that if they requested it, it would not be given. Similarly, the employees said they did not report travel time because the employer does not pay SSAs for this type of work. Accordingly, the undisputed evidence was the SSAs performed some amount of uncompensated pre-shift, meal-period, and travel-time work.
However, a triable issue exists as to whether the employer had actual or constructive knowledge that the SSAs performed uncompensated pre-shift and meal-period work. When an employer has actual or constructive knowledge of uncompensated overtime, it cannot deny compensation simply because the employee did not properly record or claim the overtime hours. Thus, summary judgment was denied to both parties on these claims.
Pre-shift work. With respect to the pre-shift work, the SSAs alleged that their supervisors witnessed their arrival or instructed them to arrive approximately 10 to 20 minutes before their shifts to perform various school security services. Further, the SSAs could face discipline if pre-shift duties were not completed by the start of their tour, and they were required to call their supervisors to report they were on duty before the start time.
On the other hand, the employer presented evidence that supervisors were sometimes located at different schools, had a different arrival time, or worked a different tour, and so were unaware of the SSAs’ pre-shift work. Accordingly, the court found a triable issue of fact as to whether the employer had knowledge of their uncompensated pre-shift work.
Meal period work. The SSAs submitted deposition testimony that their supervisors were aware of their meal-period work because the SSAs reported via radio during meal periods, and often responded to incidents with the supervisors. They also reported to supervisors via radio when going on break.
The employer again argued that supervisors were unaware of meal-period work because they were sometimes located at different schools, or located at the same school but arrived at a different times or worked a different tour. The evidence created a triable issue of fact whether supervisors were aware SSAs performed uncompensated meal-period work.
Travel time. On the other hand, summary judgment was granted to the employees (and denied to the employer) as to the employer’s actual or constructive knowledge that the SSAs performed uncompensated travel-time work. The employees offered evidence that SSAs who travel to another school for an overtime shift are required to punch out at the school where the workday began and punch back in at the second location, and that SSAs are not paid for time spent traveling between schools. Because the employer did not submit any conflicting evidence, the employees’ evidence was sufficient to establish, as a matter of law, the employer’s awareness that SSAs performed uncompensated travel-time work. Consequently, summary judgment was granted in favor of the employees on this issue.
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