In Perry et al. v. City of New York, the Second Circuit upheld a $17.7 million jury verdict in favor of a collective of workers regarding off-the-clock work under the Fair Labor Standards Act.  In doing so, the Court reaffirmed the principle that your employer may have to pay you for off-the-clock work, even if your hours aren't recorded. 

In Perry, a "collective" of over 2,500 EMTs and paramedics for the New York City Fire Department sued under the FLSA, contending that they were not compensated for all overtime worked because their various pre- and post-shift activities was not counted as time worked.  The case went to trial, and the jury found these activities were compensable and awarded the plaintiffs $17,780,063 for unpaid overtime, liquidated damages, and attorneys’ fees.  

The city argued in the trial court, and on appeal, that it couldn't be liable for the pre and post-shift work because it was not recorded on the city's timekeeping system. 

However, both the trial court and the rejected the city's argument. The courts affirmed the longstanding principle that and employer has to pay its employees for work if it knew or should have known that the work was being performed. Specifically, there was evidence showing that the employees could not have performed their jobs without completing the pre-and-post shift activities, and that they had complained to supervisors about being uncompensated for performing them.  Thus, according to the court, the City should have been aware that compensable work was being performed.  

This case serves as an important reminder that an employer cannot circumvent the pay requirements of the Fair Labor Standards Act by simply not recording employees' work. If the employer knew or should have known about the work, then the employees must be paid. 

At Gardy & Notis, we have faced issues very similar to the one in Perry. This often comes up in our cases involving an automatic lunch deduction. In those cases, employees' pay is reduced by an hour per day for a "lunch break" that the employees never take. These cases often arise in the context of nursing homes, which may be short-staffed and looking to wring extra profit out of the work of their employees. We are generally able to prove that the nursing home knew or should have known that the employees were working through lunch and not taking the full, uninterrupted break that is required under the FSLA and the New York Labor Law. 

If you are not being paid for all hours worked, contact us using this form or by calling us directly at 917-810-4303.