(Photo: Anton Prado/iStockphoto.com.)
The U.S. Court of Appeals for the Third Circuit has rejected claims by a New Jersey town’s police officers that they were short-changed on overtime pay and for time spent at roll call and changing into uniforms.
The appeals court, in Rosano v. Township of Teaneck, held Tuesday that a federal judge in Newark properly dismissed a Fair Labor Standards Act claim by 88 current and retired police officers because Teaneck’s department qualifies under the statute’s limited exemption for public safety personnel.
In an issue of first impression, the appeals court held that the department was entitled to the exemption merely by meeting the factual criteria specified in FLSA § 207(k), even without announcing an intent to invoke it.
The court held that Teaneck police are not entitled to additional pay for 10-minute muster sessions at the start and end of each shift because they are compensated for that time as part of their negotiated salaries.
Nor are they entitled to be paid for changing clothes at the start and end of each shift, because their labor contracts never provided for such pay and because their failure to raise the issue before establishes a long-standing pattern of acquiescence.
The suit was filed in 2009 by the Teaneck Policemen’s Benevolent Association Local 215, in addition to the individual officers, as a putative class action. But an amended complaint omitted the union as a party, and class certification was never sought.
Under their collective bargaining contract, Teaneck officers work either five consecutive days before having two days off, or six days on and three days off. The shifts are combined so that officers work an average of 39.25 hours per week over the course of a calendar year.
U.S. District Judge Katharine Hayden granted summary judgment for Teaneck, finding it met the § 207(k) exemption, which creates an overtime threshold of 43 hours for those on a five-day schedule and 55 hours for those on a nine-day schedule.
Hayden also found the plaintiffs not entitled to extra pay because attending muster for 10 minutes before and after each shift is required in their contract. She also found the officers not entitled to extra pay for donning and doffing uniforms, because they had the option of changing clothes at home.
At the Third Circuit, the officers relied on cases from 1994 and 2004 in which employers were denied a § 207(k) exemption for failure to declare intent to apply it. But Chief Judge Theodore McKee and Judges D. Michael Fisher and Dolores Sloviter said those cases were foreclosed by a First Circuit case from 2010, Calvao v. Town of Framingham, which rejected the need to expressly state intent.
Regarding extra pay for roll call, Fisher cited contract language requiring police to attend muster before and after each shift, a reasonable reading which “lends itself to the conclusion that muster time is a required component of an officer’s daily tour schedule, a fact that both parties were aware of at the time employment-related negotiations took place.”
The officers also claimed on appeal that Hayden wrongly applied FLSA § 203(o), which says employees are foreclosed from seeking compensation for donning and doffing where a collective bargaining agreement is in place and such pay is excluded under the terms of the agreement or by custom or practice. The appeals court found § 203(o) applies because, in 30 years of labor contracts between Teaneck and its police, donning and doffing was never compensated nor was the subject of a grievance.
Teaneck’s lawyer, Angelo Genova of Genova, Burns, Giantomasi & Webster in Newark, says the court’s holding that no announcement of intent is required for a public sector employer to apply § 207(k) “will be read by a lot of public officials” and may chill future FLSA claims by public sector employees.
The court’s finding has added significance because general stagnation of wages is producing a proliferation of FLSA claims in the public and private sectors, says Genova, who was assisted by Peter Berk of his firm.
The lawyer for the police officers, Marcia Tapia of Loccke, Correia, Schlager, Limsky & Bukofsky in Hackensack, did not return a call requesting comment on the decision.
Contact the reporter at email@example.com.