• Skip to primary navigation
  • Skip to main content

Third Ear Conflict Resolution

Court sucks. Let us help you create a sustainable resolution.

  • About
    • Our Vision
    • Nance L. Schick
    • In the Media
  • Who We Serve
    • Domestic Employers
    • Professionals and Employees
    • Employers and Managers
    • Small Business Owners
  • Services
    • Conflict Resolution
    • Employment Law
    • Education and Training
  • Resources
    • Blog
    • DIY Conflict Resolution Book
    • Newsletter
    • YouTube Channel
  • Contact
    • Community Engagement
  • Show Search
Hide Search

Case Study: Employees Collaborate to Get Overtime Pay Under FLSA

Nance Schick · Jan 13, 2025 ·


DISCLAIMER: This post is a general overview of FLSA for New York employers and employees, which change regularly. Nothing in this post is legal advice. If you require legal advice applied to your unique situation, please make an appointment to discuss it with an attorney of your choosing and in your jurisdiction.


How certain are you that your employees are not entitled to overtime (OT) pay under the Fair Labor Standards Act (FLSA)? For those of you who are funeral directors in New York State (NYS), you’ll have an opportunity to learn more about FLSA compliance on January 23, 2025 at 11 AM, when I present a continuing education course at Maple Grove Cemetery for the NYS Funeral Directors Association. This post addresses one of the cases we will discuss, Perry v. City of New York.


Who Has the Burden of Ensuring Overtime Pay Is Issued?

In Perry, a group of more than 2,500 Emergency Medical Technicians (EMTs) and paramedics filed a collective action lawsuit for overtime pay from their employer, the City of New York. They alleged that the City violated the FLSA by requiring them to perform work before and after their shifts without compensating them unless they specifically requested overtime pay. In other words, the City reportedly put the burden on employees to request overtime pay, instead of maintaining the appropriate records and automatically paying OT when it was warranted.


Photo of binder labeled "payroll" on desk with time sheet


What Is Considered Work?

The employees in the Perry case said they were required to perform tasks before and after their shifts without compensation. They performed tasks such as checking equipment and completing paperwork. The City argued these tasks were de minimis, or too trivial to be considered work requiring pay. The court disagreed, finding the time to perform the tasks was easy to record, significant in aggregate time, and occurred regularly. Additionally, the court emphasized that work qualifies for compensation under the FLSA when employers:

  • Demand it,
  • Are aware of it, or
  • Reasonably should have known about it


Willfulness Is a Consideration

In addition to its de minimis argument, the City asserted the OT pay was not warranted because the employees failed to request it as the employer required. This assertion worked against the City because the plaintiffs successfully used it to show their employer’s willful FLSA violation. It was clear the employees could not have performed their on-the-clock duties without also performing their uncompensated tasks, meaning the employer knew or should have known the work was being performed and that it was not being paid for. This resulted in a $17.78 million judgment against the City.


Photo of employee checking watch time with app entry


Tips for Employees

Often, employees feel powerless against their employers when they are being treated poorly or unlawfully. The power imbalance is exactly what the law intends to balance. Here are some important steps to take if you think you are entitled to overtime pay that is being denied:

  1. Review the FLSA and NYS Department of Labor websites. If you’re working beyond your scheduled hours, you may be entitled to overtime compensation. Know your rights before you assert them.
  2. Don’t rely solely on your employer’s records. Keep a personal record of the hours you work, including any time spent on tasks outside of your regular working hours.
  3. Speak up firmly, yet respectfully. If you believe you’re not being compensated fairly for your work, explain to your employer that an error might be occurring. Allow up to a week for the employer to investigate, and follow up until you get a clear response.
  4. Consult with an employment attorney. If your employer’s response is unclear or seems wrong, trust your instincts and get a second opinion.
  5. Consider collective action. If you and several co-workers are being denied overtime pay, consider a collective action. This can bring more attention to the problem and potentially lead to a resolution that benefits all affected employees.

Every situation is unique, so these lessons may not apply to every case. It’s always a good idea to seek legal advice if you’re unsure about your rights or the best course of action.


Tips for Employers

Remember, employment is a partnership toward mutually beneficial goals, but the law views employers as the more powerful partner and seeks to balance the power. It is up to you to ensure your employees are paid properly, including overtime pay. To do this:

  1. Use realtime time trackers. There are several smartphone apps that can help you avoid disputes about overtime pay and unpaid work.
  2. Hold employees accountable for using the time trackers correctly. Clearly communicate the procedures for reporting all work hours, including any tasks performed outside of regular shifts and ensure employees follow those procedures.
  3. Hold supervisors and managers accountable for accurate employee timekeeping. Make sure they understand the importance of accurate timekeeping and the legal implications of errors.
  4. Respond promptly to complaints. Conduct fair and impartial investigations, promptly resolving any conflicts found.
  5. Audit time records at least annually. Perform regular audits of time records and payroll to identify and correct any discrepancies before the Department of Labor or other government agency does it for you.

Not attending the continuing education course?

Request a Training


Keep Learning

  • Navigating FLSA Classifications: Insights for Employers in NYC & NYS
  • Seven Reasons to Pay People Who Perform Services for Your FOR-Profit Business
  • The Transformative Influence of Thoughtful Documentation

Case Studies, Workplace Dispute Resolution employee policies, employment partnership, risk management

About

Nance L. Schick Affiliates Blog Book Contact

The Seven Choices

Forgive Yourself Acknowledge Yourself Forgive the World Free the Emotions Clear Your Mind Assume Nothing Listen with Your Heart

The Five Actions

Define the Conflict Identify the Interests Play with the Possibilities Create the Future Stay on PARR

Attorney Advertising. Privacy Policy. Nance L. Schick © 2007–2025

  • Your Third Ear
  • Email
  • Facebook
  • LinkedIn