Opinion
02 Civ. 9530 (SAS).
November 18, 2008
For Plaintiffs: Thomas P. Puccio, Esq., Law Offices of Thomas P. Puccio, New York, New York.
Gary A. Orseck, Esq., Lawrence S. Robbins, Esq., Damon W. Taaffe, Esq., Robbins, Russell, Englert, Orseck, Untereiner Sauber LLP, Washington, DC.
Will Aitchison, Esq., Mark A. Crabtree, Esq., Aitchison Vick, Inc., Portland, Oregon.
John T. Brennan, Esq., Law Offices of John T. Brennan, Brooklyn, New York.
For Defendants: Lorie E. Almon, Esq., Gerald L. Maatman, Jr., Esq., Peter A. Walker, Esq., Robert S. Witman, Esq., Seyfarth Shaw LLP, New York, New York.
James Lemonedes, Georgia Pestana, Assistant Corporation Counsel, New York, New York.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION AND BACKGROUND
Over fifteen thousand current and former New York City police officers and detectives ("plaintiffs") assert that the City of New York and the New York City Police Department ("NYPD") (collectively "defendants") systematically violate plaintiffs' overtime rights under the Fair Labor Standards Act ("FLSA"). This lawsuit addresses the policies and practices of the nation's largest police department, and plaintiffs claim hundreds of millions of dollars in damages based on defendants' alleged failures concerning the accrual, use, and payment of overtime.
29 U.S.C. §§ 201- 219.
The question has arisen whether defendants are permitted by law to limit the availability of overtime assignments in the future to an officer who elects to receive a large amount of cash overtime in a single work period. For the reasons described below, I hold that an employer has the right to limit the availability of future overtime assignments in response to an officer's choice to receive cash compensation for mandatory overtime.
II. BACKGROUND
III. APPLICABLE LAW
12/18/95 Patrolmen's Benevolent Association 1995-2000 Agreement ("1995 PBA CBA"), art. III, Ex. A to 8/27/08 Declaration of John E. Kanganis, Lieutenant, NYPD. Other CBAs relevant to this case include identical language.
See Amended Complaint ¶¶ 14-21.
See 29 U.S.C. § 207(o).
Scott v. City of New York (" Scott III"), No. 02 Civ. 9530, 2008 WL 4104020, at *7 (S.D.N.Y. Aug. 28, 2008) (quoting Collins v. Lobdell, 188 F.3d 1124, 1130 (9th Cir. 1999) and 29 C.F.R. § 553.23(a)(2)).
Scott III, 2008 WL 4104020, at *10.
Neither the FLSA nor any other federal statute creates a right to overtime opportunities. Rather, the FLSA refers to overtime that an employer "suffers or permits" employees to work. Nor is there any constitutionally protected right to work overtime.
29 U.S.C. § 203(g). Accord Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441, at *6 (S.D. Tex. Feb. 16, 2007) (noting that plaintiff conceded "that the FLSA does not guarantee any employee a right to work overtime hours").
See Boland v. Police Dep't, No. 06 Civ. 15312, 2007 WL 4225484, at *2 (S.D.N.Y. Nov. 29, 2007).
IV. DISCUSSION
Although the CBAs preclude defendants from requiring an officer to take compensatory time rather than cash overtime when an officer is ordered to work overtime, the NYPD may choose to make future overtime opportunities available to officers based on the officer's prior decisions. The NYPD could not selectively offer this benefit to officers based on a host of factors barred by statute — such as race, religion, sex, national origin, or age — but there is no categorical protection for officers who choose to exercise contractual rights. The decision concerning which officer will be offered overtime is akin to a decision regarding promotion; it is discretionary and may reflect an employer's preference that employees select a particular action within a range of permissible options.
See 29 U.S.C. § 623(a)(1) (age); 42 U.S.C. § 2000e-2(a)(1) (race, color, religion, sex, or national origin).
Cf. 29 U.S.C. § 215(a)(3) (barring discrimination against an individual who has "filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee").
Drawing an analogy closer to the hearts and minds of attorneys, associates at most law firms are not required by contract to bill more than 2500 hours per year. However, a law firm is entitled to — and often does — select for partnership the associate who declines to exercise her right to go home and bills hundreds of additional hours per year.
Plaintiffs argue that if the NYPD limits future overtime opportunities in response to an officer's choice between cash and compensatory time, it will "burden" the officer's right to compensated "by cash payment or compensatory time off . . . at [his] sole option." But choices have consequences. This opinion in no way limits an officer's ability to choose between cash and compensatory time when mandatory overtime is assigned; that is an express contractual right. However, the NYPD may limit the availability of future overtime to officers who consistently choose cash compensation for mandatory overtime. An officer must therefore decide whether he or she wishes to have greater future overtime opportunities or whether the officer prefers to be compensated in cash for the overtime he or she has already worked.
1995 PBA CBA art. III.
V. CONCLUSION
For the foregoing reasons, the jury shall be instructed that the NYPD may choose to offer or order overtime to particular police officers based on an officer's past selection of cash versus compensatory time as compensation for overtime.
SO ORDERED: