Perry v. City of New York

Majority - Dennis Jacobs

No, an employer violates the Fair Labor Standards Act by failing to compensate employees for required pre- and post-shift work, even if the employees do not specifically request overtime pay and the employer claims it did not know the employees were working unpaid, because the FLSA's broad definition of 'employ' requires compensation for all work an employer suffers or permits. The court reasoned that the FLSA's definition of 'employ' includes work an employer requires, actually knows about, or should have known about through reasonable diligence, placing the payment obligation squarely on the employer. Citing Caserta v. Home Lines Agency, Inc., the court affirmed that an employee's failure to report known or required work does not absolve the employer of liability. The court explicitly rejected the City's argument that knowledge of non-payment is a prerequisite for FLSA liability, stating that such a rule would add an extra-statutory precondition, allow employees to waive non-waivable FLSA protections, and improperly collapse the statutory distinction between ordinary and willful violations. The court found that the jury had a legally sufficient evidentiary basis to conclude that the City maintained a policy or practice of 'requiring' plaintiffs to perform uncompensated extra-shift work. Evidence included FDNY regulations requiring EMTs to be 'ready for duty' at shift start (necessitating pre-shift prep), the necessity of ambulance inspections at the beginning of the paid shift, and the requirement for EMTs to keep equipment until the very end of their shift (necessitating post-shift wrap-up tasks). The jury's finding of 'willfulness' was also affirmed. The court found evidence that the City knew of its FLSA obligations through a senior labor lawyer's testimony, was aware of uncompensated extra-shift work (from 2005 CityTime design complaints and a 2008 draft order), but took insufficient action to remedy it (e.g., six-year delay in promulgating an order, lack of consistent understanding among FDNY senior managers regarding payment for unreported work). The City's failure to audit uncompensated time 'slivers' in CityTime records despite knowing of their existence also supported a finding of reckless disregard. Regarding damages, the court upheld the district court's instruction allowing the jury to use the modified CityTime 'slivers' as a reasonable approximation. It noted that FLSA damages do not require mathematical precision when the employer's records are 'inadequate' and the employee provides 'sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference,' as established in Anderson v. Mt. Clemens Pottery Co. The plaintiffs' calculation, with adjustments for paid slivers, FLSA overtime thresholds, rounding, and a 15-minute cap, was deemed a 'sufficiently accurate approximation.' Finally, the court rejected the City's 'de minimis' argument regarding post-shift equipment exchange. It clarified that the de minimis doctrine applies to the aggregate amount of time for which employees are otherwise legally entitled to compensation, not to individual tasks viewed separately (citing Perez v. Mountaire Farms, Inc.). Applying the three-factor test from Singh v. City of New York, the court found that EMTs' post-shift work was not de minimis because: 1) CityTime already recorded the time, making administrative difficulty of recording low; 2) the aggregate amount of time over years was substantial; and 3) the tasks were performed regularly.