To All Delegates and Members

January 2003

RE: FLSA LAWSUIT

On November 27, 2002, as a result of an investigation initiated by the PBA, a Federal Lawsuit was filed in the United States District Court for the Southern District of New York against the City of New York ("City") and the New York City Police Department ("NYPD or "Department"), alleging that certain practices of the NYPD violated the Fair Labor Standards Act ("FLSA"). The lawsuit contends that police officers have not been properly compensated for overtime hours worked, and that in many cases, the compensatory time off practices of the Department violate the FLSA. If successful, this lawsuit will compensate members for time periods in which they were unlawfully under compensated and may go a long way toward remedying the Department's practice of wrongfully denying members a day off.

As part of the PBA's effort to address quality-of-life and compensation issues affecting our members, the PBA engaged one of the foremost FLSA experts, Will Aitchison, to undertake an analysis of the Department's overtime and compensatory leave practices. Mr. Aitchison, an attorney who has represented police unions across the nation for more than 20 years, has maintained numerous lawsuits on behalf of police officers around the country, recovering substantial monetary damages. Mr. Aitchison has written seven books on public safety labor relations issues, including The Fair Labor Standards Act - A User's Manual and The Rights of Law Enforcement Officers.

As a result of Mr. Aitchison's examination, he has concluded that certain practices of the NYPD violate the FLSA in at least five (5) significant respects: (i) inappropriately denying requests for compensatory time off; (ii) not properly including night shift differential in the overtime rate for some employees; (iii) not counting overtime until the officer has worked 15 minutes (the FLSA requires overtime be paid after 7 ½ minutes); (iv) using a work schedule that generates overtime without paying officers for all overtime worked; and (v) the forced acceptance of compensatory time off in lieu of cash compensation for overtime when employees have earned certain amounts of overtime in a particular pay period (i.e., monthly and quarterly overtime caps). Mr. Aitchison believes that as more of our members join the lawsuit, additional claims may be identified and added.

Under the FLSA, an employer who has improperly compensated employees for overtime hours worked is liable for: (i) the employees' back wages; (ii) liquidated damages; and (iii) the employees' attorneys' fees in bringing the FLSA lawsuit. For example, in Los Angeles, a police department one-third the size of the NYPD, LAPD police officers brought an FLSA lawsuit, which resulted in a $39 million settlement with the City of Los Angeles.

JOINING THE LAWSUIT

The PBA cannot legally be a plaintiff in the lawsuit. Mr. Aitchison has advised us that, unlike regular class action lawsuits, FLSA lawsuits require that individual employees take affirmative steps to join the lawsuit through filing a document with the court known as a "Consent to Join" (a copy of which is enclosed herewith). Employees who do not file Consents to Join are not parties to the lawsuit, and receive none of the damages awarded either through a verdict or through a settlement.

Who May Join the Lawsuit

Any police officer working for the City of New York who believes that they have any of the claims listed above is eligible to join the lawsuit. In addition, any individual who is a police officer for the City of New York or who terminated service or is promoted to Detective or Supervisor on or after January 2000 is also eligible to join the lawsuit.

How to Join the Lawsuit

The following forms are required to join the lawsuit:

  • Consent to Join
  • Fee Agreement
  • Questionnaire

All PBA delegates have been provided with forms for each and every member. A self-addressed, stamped envelope was also provided for your convenience. The forms must be filled out and returned to: Aitchison & Vick, Inc., 3021 NE Broadway, Portland, OR 97232. The forms are also available on-line at www.nypdflsa.com a website that is exclusively dedicated to the NYPD FLSA lawsuit. It also can be accessed through the PBA website. In fact, the questionnaire can be completed on-line and forwarded directly through the website. Again, you must fill out and return all three documents to be included in the lawsuit. According to Mr. Aitchison, once the attorneys receive your completed paperwork, they will add you to the lawsuit, and will send you written confirmation of that fact. If you do not receive written confirmation that you have been added to the lawsuit within two weeks of mailing the documents, you should assume that they have not received your paperwork. In that event, you should call Mr. Aitchison's firm immediately, and they will get you another packet right away.

LITIGATION COSTS AND ATTORNEY'S FEES

The attorneys will be handling the litigation on a contingent fee basis. They will receive 25% of the net recovery for their fees - a reduced contingency fee arrangement negotiated on your behalf by the PBA. If no recovery is made, the attorneys will not recover fees. If the recovery includes any attorney fees, the fee amount will be deducted from and offset against the obligations under the contingent fee agreements. The PBA will be advancing certain litigation costs, including expert witness fees, deposition fees, and the costs of communicating with PBA members. The attorneys will be advancing the remainder of the costs. If the litigation is successful, the advanced costs will be paid back to the PBA and the attorneys out of the recovery. Members will have no obligation to repay the PBA or the attorneys.

WHAT WE HOPE TO ACHIEVE

In addition to the possible monetary benefits discussed above, the PBA is hopeful that significant non-monetary workplace changes may result. Some examples of potential change are:

  • Greater freedom of usage of time off.
  • The payment of a higher overtime rate and compensation for time previously thought to be not compensable.
  • Greater freedom in electing whether to be paid overtime in the form of cash or compensatory time off.

The PBA continues to work to improve our working conditions. With your cooperation and support, this lawsuit will serve to ensure that our members are accorded rights guaranteed under federal law and will help to bring about positive changes in our working conditions.

Fraternally,

Patrick J. Lynch
President