Perry v. City of New York, 78 F.4th 502

Background

2,519 EMTs/paramedics employed by NYC sued under the FLSA alleging the City required unpaid pre- and post-shift work that was paid only if employees submitted overtime requests.
FDNY used CityTime, a “pay-to-schedule” system that automatically paid only scheduled shift minutes; short pre/post-shift intervals (“slivers”) required overtime requests to be paid.
Plaintiffs alleged a city-wide policy/practice of requiring preparatory and wrap-up tasks (PPE checks, ambulance inspections, equipment exchanges) that necessarily occur outside paid shifts.
After a 12-day trial a jury found the City liable and that its violation was willful; district court entered a $17.78 million judgment (backpay, liquidated damages, fees).
The City appealed, raising four principal arguments: (1) plaintiffs’ failure to request overtime defeats liability; (2) willfulness finding lacked support; (3) jury was improperly relieved of finding each sliver was 100% compensable time; (4) certain post-shift tasks were de minimis and should have been submitted to the jury.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether employer liability requires knowledge that employees were not being paid for the work	City must pay for work it suffers or permits; plaintiffs need not request pay for employer to be liable	City argues employer is not liable unless it knew employees would not be paid (i.e., employee reporting required to trigger liability)	Rejected: liability depends on whether employer required, knew of, or should have known of the work; employer knowledge of non-payment is irrelevant to liability
Whether the jury’s willfulness finding was supported	Plaintiffs: City knew or recklessly disregarded that compensable extra-shift work was occurring and unpaid	City: reasonable belief that employees would request/pay overtime and reliance on CityTime/attorney advice negates willfulness	Affirmed: record supports willfulness (knowledge of issue, drafts, complaints, failure to act for years, managerial misunderstandings); jury reasonably found reckless disregard
Whether jury instruction/direction allowed recovery without finding each sliver was 100% compensable	Plaintiffs used modified CityTime data, rounding, caps, and continuous-workday evidence; precise proof impossible but reasonable inference and approximation permitted	City: must prove each minute was compensable; district court improperly told jury slivers ‘‘captured’’ work rather than were exclusively work	Affirmed: Anderson/ Mt. Clemens principle allows reasonable approximation when employer records are inadequate; plaintiffs’ adjustments made a sufficiently accurate estimate
Whether post-shift equipment-exchange time was de minimis and thus for the jury	Plaintiffs: post-shift wrap-up is regular, recordable (CityTime), and substantial in the aggregate	City: specific task (equipment exchange) is de minimis and should have been submitted to jurors	Rejected: de minimis inquiry looks to aggregate matter in issue (pre- vs post-shift work), not piecemeal tasks; post-shift work not de minimis as a matter of law given regularity, ease of recording, and aggregate size

Key Cases Cited

Caserta v. Home Lines Agency, Inc., 273 F.2d 943 (2d Cir. 1959) (employer cannot escape FLSA payment duty because employee failed to record overtime)
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (when employer records are inadequate, employee may prove hours by reasonable inference)
Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) (liability requires actual or constructive employer knowledge of the work)
Chao v. Gotham Registry, Inc., 514 F.3d 280 (2d Cir. 2008) (§207 aims to limit overwork and impose payment burdens on employers)
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (distinguishes willful from non-willful FLSA violations)
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir. 1999) (failure to investigate known risks can support willfulness)
Aguilar v. Management & Training Corp., 948 F.3d 1270 (10th Cir. 2020) (employer aware of work must pay even if employee did not claim overtime)
White v. Baptist Memorial Health Care Corp., 699 F.3d 869 (6th Cir. 2012) (alternative view requiring knowledge of non-payment; discussed and rejected)
Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir. 1995) (de minimis analysis considers aggregate duties, not isolated micro-tasks)
Perez v. Mountaire Farms, Inc., 650 F.3d 350 (4th Cir. 2011) (rejects parceling work into micro-tasks to invoke de minimis rule)
Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008) (setting factors for de minimis analysis)
Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984) (aggregate claims can be substantial even if daily time is small)