New York State Court of Claims

New York State Court of Claims

SPEERS v. THE STATE OF NEW YORK, #2000-015-049, Claim No. 97790, Motion No. M-61446


The time spent by a State worker commuting from a home to the assigned work station is not compensable as overtime pursuant to the Fair Labor Standards Act.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Chamberlain, D'Amanda, Oppenheimer & GreenfieldBy: Matthew J. Fusco, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Kevan J. Acton, Esquire
Third-party defendant's attorney:

Signature date:
July 10, 2000
Saratoga Springs

Official citation:

Appellate results:
REVERSED - Third Dept., 7/19/00 (285 A.D.2d 872), modified Third Dept., 11/15/01
See also (multicaptioned case)


The motion of the defendant for an order granting summary judgment dismissing the claim upon the ground that as a matter of law the facts set forth in the record do not establish a violation of the Fair Labor Standards Act (29 USC § 201 et seq.; hereinafter FLSA) is granted. Claimants, persons who currently hold or in the past have held the title of Senior Examiner for the Department of Audit and Control, filed this claim on February 10, 1998 seeking to recover unpaid overtime compensation for the period from June, 1992 to the present, together with liquidated damages and attorneys fees pursuant to the FLSA. Claimants allege that their homes are designated as their official stations and that they commute from their homes to various political subdivisions on a daily basis in order to conduct audits of municipal books and records. While the claimants are paid mileage for travel between their homes and the audit sites, it is alleged that the defendant has denied their request for overtime payments for the hours spent traveling to and from assigned audit locations.

Claimants originally pursued their FLSA claim through an action filed on June 23, 1994 in the United States District Court for the Western District of New York (Speers v State of New York, 94- CIV-6331C). On February 12, 1997, the District Court dismissed that action upon the ground that the litigation was barred by the Eleventh Amendment to the United States Constitution pursuant to the decision of the United States Supreme Court in Seminole Tribe of Fla. v Florida, 517 US 44. Claimants chose not to pursue an appeal to the United States Court of Appeals for the Second Circuit and instead commenced the instant claim. In a decision and order filed on February 25, 2000 this Court granted the defendant's motion for partial summary judgment dismissing those portions of the claim which accrued more than six months prior to February 10, 1998 (the date the claim was filed). By this motion defendant seeks summary judgment dismissing the remainder of the claim upon the grounds of collateral estoppel and/or res judicata and pursuant to this Court's prior decision in Manners v State of New York, 183 Misc 2d 382, which held that a State employee's time spent commuting from his official station to his assigned work location was not compensable under the FLSA.

In Manners, the claimant was a Construction Inspector whose assigned work location was the Empire State Plaza in Albany, New York. Prior to June 17, 1996, his official station had been his home in Cooperstown, New York and he had received mileage reimbursement for his daily commute from his home to his official work location. In Manners, this Court determined that an official station is a location designated by the employer for the "purpose of establishing a point of reference to determine when an employee is in travel status and, therefore, eligible for reimbursement for travel expenses". After June 17, 1996, Manners' official station was changed to a field office in Johnstown, New York. Manners then sought overtime compensation for the time spent traveling from his official station to his official work location. In rejecting that claim, this Court relied upon 29 USC § 254 (a) (1) which states that the activities of "riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform" are not compensable activities under the FLSA. In particular, the Court held that time spent by a State employee in merely commuting from his home to the actual place of performance of his principal activities was not compensable under the FLSA, even if the employee was compelled to use a vehicle supplied by the employer.

Claimants argue that Manners is distinguishable from their situation in that they: are required to keep extensive libraries of auditing guidelines, reference books and legal publications at their homes; they use these documents in their homes; they are not provided with offices in any State office building; they receive mail, paychecks and official communications from the State at their homes; are contacted for business purposes by their employers at their homes by telephone; receive travel pay while traveling from their official stations to the audit sites; are covered by workers' compensation for the time spent traveling from their homes to audit sites; and work at home upon the audits they prepare. In addition, claimants' counsel argues that the motion should be denied because further disclosure is required upon the issues of what tasks the examiners perform at home, how their employers communicate with them, and the policies and practices of the Comptroller's Office with respect to travel pay.

First, the compensability of any work performed at home is not at issue here. The sole issue framed by the claim is the recovery of monetary compensation for time "spent traveling from their homes to the audit sites". Secondly, in the Court's view, claimants' arguments fail to distinguish this claim from the legal reasoning that was applied in Manners. The fact that the examiners receive reimbursement for their mileage is not persuasive. The employee in Manners was paid mileage for commuting between his home, when it was designated as his official station, and his official work location prior to the time that he was supplied with a State vehicle. Furthermore, in Manners, this Court relied upon the opinion of the Second Circuit in Kavanagh v Grand Union Co., 192 F3d 269 [2nd cir.] which held that ordinary commuting was not compensable under the FLSA. The Kavanagh decision discloses that Mr. Kavanagh was employed by Grand Union and worked out of his home. The employee, who resided on Long Island, would receive his work assignments at home over the telephone. Those assignments could be at more than 50 stores throughout New York and Connecticut. Kavanagh kept all of the tools and equipment necessary to perform his work at his residence. Some of the equipment belonged to Grand Union, and some of it belonged to him. He routinely transported tools that were required to perform his job from his home to his official work location in either his own vehicle or a Grand Union vehicle. Grand Union reimbursed Kavanagh for mileage and gas when he used his own vehicle. Under those circumstances, the Second Circuit determined that Mr. Kavanagh's travel from his home to his various places of employment was routine commuting not compensable under the Fair Labor Standards Act. Applying the Kavanagh and Manners holdings to the facts set forth in this motion record requires a grant of summary judgment to the defendant.

In view of the foregoing determination, the Court need not address that portion of the motion premised upon the doctrines of collateral estoppel and res judicata. However, had the Court reached the issue it would have held that those affirmative defenses were not available against most of these claimants as only three were parties to the arbitration relied upon by the defendant, and as to those three claimants there was no identity of issue as the arbitrator's decision makes clear that his ruling was based solely upon the language of the collective bargaining agreement and not the provisions of the FLSA (Wheeler v Village of Saugerties, 216 AD2d 733; Weber v Kessler, 177 AD2d 843).

Finally, this claim has been in litigation in Federal or State courts for over six years and the argument of claimants' counsel that additional disclosure might strengthen the claim is rejected as the parties have had more than sufficient time and opportunity to make their case.

July 10, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated March 27, 2000;
  2. Affirmation of Kevan J. Acton dated March 27, 2000, with exhibits;
  3. Affidavit in opposition of Matthew J. Fusco sworn to May 16, 2000;
  4. Affidavit in opposition of Craig E. Speers sworn to May 16, 2000.