Action to receive "gap time" compensation in cash denied
Parker v. City of
Plaintiffs, 327 former and current Juvenile Counselors and Associate Juvenile Counselors employed by New York City’s Department of Juvenile Justice (DJJ) filed this action pursuant to the Pair Labor Standards Act of 1983 (FLSA) against the City of New York and the DJJ, alleging that the City’s compensation policies and practices violate the FLSA.
Plaintiffs argued that pursuant to 29 U.S.C. §207(o) and associated regulations, Defendants must compensate employees in cash and not compensatory time for time worked between 35 and 40 hours in a workweek where employee works over 40 hours; Defendants failed to comply with 29 U.S.C. §207(o)(5) requiring public employers to grant requests for compensatory time off within a reasonable time period; and Defendants violate the FLSA’s prompt payment requirement by paying overtime that is earned in the second week of a biweekly pay period in the paycheck covering the succeeding pay period.
The Plaintiffs’ contention that Section 207(o) mandates cash payment rather than compensatory time payment for gap-time hours falls outside the ambit of the FLSA. Nothing in Section 207(o) required Defendants to compensate gap hours in cash. Plaintiffs’ interpretation of the relevant regulation is untenable
Regarding the claimed failure of Defendants to grant requests for compensatory time off within a reasonable time period, Plaintiffs submitted data that proves only that the employees did not make use of their compensatory time within a reasonable period within their requested date and not that the City failed to make such a date available to them.
Finally, in regards to Plaintiffs’ allegation that DJJ’s overtime payment policies violate prompt payment requirements of FLSA, there is no requirement in the Act that overtime compensation be paid weekly. Plaintiffs provided a variety of arguments but these contentions are nothing just conjecture and do not create triable issues of material fact.
Accordingly, the Supreme Court ordered that the Defendants’ motion for summary judgment is granted and Plaintiffs’ cross motion denied.
