New York State Court of Claims

New York State Court of Claims

WOOLLEY, et al v. THE STATE OF NEW YORK, #2001-015-191, Claim No. 103781, Motion Nos. M-63585, CM-63766


Synopsis


Claim by firefighters employed by New York State Division of Military and Naval Affairs at airports serving National Guard for sleep time and meal time compensation determined to be straight time and therefore not recoverable pursuant to Fair Labor Standards Act. Claim dismissed.

Case Information

UID:
2001-015-191
Claimant(s):
ALBERT M. WOOLLEY III, JAMES A. ARRASATE JR., JOHN R. BANCROFT, JOSEPH L. BIRBIGLIA, JR., KENNETH M. CARON, MICHAEL CLAY, ERIC D. COHEN, TIMOTHY F. EDWARDS, MARK R. FALLO, RODERICK O. FARMER, PAUL B. GIERE, JAMES W. GLEDHILL, JEFFREY C. HAMBSCH, THOMAS MICHAEL McGARRY, JR., JAMES S. NIZZA, ANTHONY J. NOVELLINO, JR., THOMAS B. PEYTON, JR. , GEORGE KALAMARAS, TIMOTHY J. IPPOLITO, and all other persons similarly situated
Claimant short name:
WOOLLEY, et al
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103781
Motion number(s):
M-63585
Cross-motion number(s):
CM-63766
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Nancy E. Hoffman, Civil Service Employees Association, Inc. By: Robert Reilly, Esquire, of Counsel
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 22, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant's motion for summary judgment dismissing the claim pursuant to CPLR 3212 on the ground that the defendant is not liable as a matter of law is granted. Claimants' cross-motion for partial summary judgment on the issue of liability is denied and claimant's further request to lift the stay of disclosure automatically imposed pursuant to CPLR 3214 during the pendency of this motion and cross-motion is denied as moot. The amended claim filed on April 23, 2001[1] asserts a cause of action premised upon alleged continuing violations of the federal Fair Labor Standards Act of 1938, as amended (29 USC § § 201-219) (hereinafter FLSA) on behalf of persons employed by the New York State Division of Military and Naval Affairs (DMNA) in the titles of Airport Firefighters I and II at airbases located at Long Island, Newburgh, Syracuse and Scotia, New York. The claim seeks damages for unpaid statutory overtime compensation, compensation for sleep time, compensation for meal time and related relief. Paragraph "16" of the amended claim states that the FLSA generally requires that employees be compensated in an amount which is at least the minimum wage for all hours worked, including sleep and meal times. The claim, however, does not allege that the instant claimants were paid less than the statutory minimum wage and, in fact, alleges at paragraph "72" that they are paid an hourly rate which on average is approximately seventeen dollars per hour.

The Court first turns to the State's motion for summary judgment which is supported by an affirmation of the defendant's attorney and the affidavit of William Bennett, Assistant Director of Personnel for DMNA and a photocopy of a memorandum of understanding between the State of New York, The Civil Service Employees Association, Inc. (CSEA) and the DMNA Bargaining Unit which indicates an effective date of March 25, 1993.

A motion for summary judgment must be supported by evidence in admissible form demonstrating the absence of any material issues of fact thereby establishing the movant's prima facie entitlement to judgment as a matter of law (Fridovich v David, 188 AD2d 984). Once this is done, the burden shifts to the other party to attempt to defeat the motion or at least to raise a triable issue of material fact (see, Alvarez v Prospect Hospital, 68 NY2d 320). In his supporting affirmation defendant's counsel points to certain admissions or acknowledgments in the claim including that the defendant elected the FLSA § 207 (k)[2]
(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives four tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed. exemption for firefighters it employs by and through the DMNA and that claimants were scheduled to work one hundred six (106) hours in each two week (14 day) period (C-28)[3]. Defendant's counsel also relies upon the parties' memorandum of understanding (Defendant's Exhibit A) which he alleges remains in effect since neither of the two conditions for termination, the negotiation of a successor agreement or the incorporation of its terms into a formal DMNA agreement, have been met. The agreement, counsel argues, evidences the parties' intention to adopt a basic work week for airport firefighters employed by DMNA at 53 hours per week or 106 hours biweekly and further evidences the parties' intent to establish work schedules under the agreement "in compliance with any and all Fair Labor Standards requirements." Such work schedules are neither set forth in the agreement nor attached to it. Claimants in their claim, however, allege that in each 14 day period claimants are scheduled to work four twenty-four hour shifts and one ten hour shift (C-28). It is further alleged in the claim that the twenty-four hour shifts are exactly 24 hours from 7:30 a.m to 7:30 a.m. (C-30) and include eight hours of sleep time (C-32) from 10:30 p.m. to 6:30 a.m. (C-33). Meal times are also scheduled, with lunch from 11:30 a.m. to 12:30 p.m. (C-35) and dinner from 5:30 p.m. to 6:30 p.m. The claim is silent with regard to the ten hour shift but William Bennett alleges in paragraph "4" of his affidavit that the shift includes a one-hour meal period and that allegation is not refuted. Bennett further alleges in paragraph "5" that the 106 scheduled hours of work for airport firefighters includes 32 hours for sleeping and 9 hours for meal times and asserts that claimants' salaries, paid pursuant to a collective bargaining agreement, compensate them for the full 106 hours of work in each 14 day period.

Relying upon these allegations, many of which are set forth in the claim itself, defense counsel argues that the scheduled 106 hour workweek falls within the maximum hours standards for work periods of 7 to 28 days set forth in 29 CFR § 553.230 and that pursuant to the regulation no overtime compensation is required under FLSA § 207 (k) until the claimants work in excess of 106 hours in a 14 day period. Counsel contends that since claimants have not alleged in the claim or amended claim that they were required to work in excess of 106 hours in a 14 day period without proper overtime compensation and since neither the workweek limitation set forth in the parties' memorandum of understanding nor the standard set forth in § 207 (k) exemption have been exceeded there can be no liability on the part of the defendant for overtime under either the FLSA or the parties' collective bargaining agreement[4]. He therefore requests judgment in the defendant's favor.

Claimants opposed the defendant's motion and cross-moved for partial summary judgment on the issue of liability. The cross-motion is supported by an affirmation of counsel, affidavits of claimants Woolley and Arrasate, the affidavit of James Hennerty, the Deputy Director of Contract Administration for the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) since 1989; copies of the pleadings, copies of the B shift monthly planner for December 2000 - February 2001; copies of pay stubs for claimants Woolley and Arrasate each dated January 17, 2001; copies of excerpts from the 1999-2003 collective bargaining agreement between CSEA and DMNA; a copy of DMNA regulations pertaining to salaries and expenses; and copies of excerpts from the New York State Department of Civil Service Attendance and Leave Manual and DMNA regulations pertaining to attendance and leave rules.

Claimants on the cross-motion allege that the defendant's are incorrect in arguing that sleep time and meal time were not excluded from claimants' compensation because claimants were paid a "salary." Claimants argue that they were not salaried workers because when they worked more than 106 hours in a pay period they were paid above and beyond their normal biweekly compensation. In fact claimants allege that they were paid at the statutory FLSA overtime rate of time and one-half for such additional time (see paragraph 8 of Robert Reilly affidavit)[5]. Claimants also argue that they are not paid a salary because their wages are subject to deductions for such reasons as tardiness, unauthorized absences and disciplinary suspensions citing to pages 5-8 of Exhibit F and pages 4-6 of Exhibit G to support this argument.[6]

Claimants further allege that sleep time and meal time were excluded from overtime payments as evidenced by two things. First, the fact that although claimants normally work 106 hours in a pay period they are compensated exactly the same as employees who work only 75 or 80 hours in a pay period (see Arrasate affidavit paragraph 51). It is allegedly further evidenced by the fact that when claimants worked in excess of 106 hours in a pay period they were paid FLSA statutory overtime at a rate of time and one-half an hourly rate that was exclusive of sleep and meal times[7]. This last premise is purportedly supported by allegations and mathematical calculations set forth in the affidavit of claimant Woolley (see paragraphs 49-52).

Counsel's affirmation in support of the cross-motion concludes with an argument addressed to the parties' 1993 memorandum of understanding and asserts various reasons why it should not be considered by the Court. He asserts that it cannot be deemed a waiver of claimants' rights to be compensated for sleep time and meal time since it makes no mention of such items; that a union cannot waive employee FLSA rights; that as an illegal instrument it would be unenforceable; and that it would be excluded from evidence by the parol evidence rule.

In a separate affirmation claimants' attorney requested relief from the automatic stay of disclosure imposed pursuant to CPLR 3214 pending decision on this motion. The application for such relief should have been made pursuant to an order to show cause bringing the matter to the Court's attention for more immediate resolution. Counsel's failure to seek relief in that manner has resulted in the request being rendered moot and it is hereby denied on that basis.

The defendant opposed the claimants' cross-motion by affirmation of counsel and the affidavit of Michael F. McDonald, Assistant Director of the Governor's Office of Employee Relations. The latter alleges that the 1993 memorandum of understanding remains in effect and fixes the terms and conditions of the airport firefighters employment including 106 work hours in a 14 day period and their annual compensation (McDonald affidavit, para 8).

The Court's consideration of the motion begins with the parties' memorandum of understanding effective March 25, 1993. There is certainly a question of fact raised by the claimants' opposition to the initial motion as to whether the memorandum of understanding relied upon by the defendant remains in effect. Defendant asserts that it does and claimants assert that it does not. The Court, however, must initially decide if the memorandum's continued viability is a genuine issue of material fact which precludes summary judgment (see, Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439). Where documentary evidence conclusively establishes that the issue of fact is not genuine but feigned it is appropriate to summarily resolve the matter (American Realty Co. v 64 B Venture, 176 AD2d 226). Here it appears that the memorandum of understanding merely evidences the intent of the parties to establish a "basic workweek" for airport firefighters at "53 hours per week, or 106 hours biweekly" and provides that work schedules established under the agreement "are agreed to be in compliance with any and all Fair Labor Standards Act requirements." The instant claimants do not dispute either the length of the indicated "workweek" (i.e., a biweekly period consisting of 106 hours of scheduled work) or that the work schedules in fact comply with the FLSA. Accordingly, the continued viability of the memorandum of understanding is not crucial to the outcome of the instant motion and a question of fact in that regard does not appear to be a material one precluding summary judgment.

As the Court understands the claimants' allegations they allege that their respective salaries paid pursuant to a negotiated collective bargaining agreement and a salary schedule adopted into law by the State Legislature as Civil Service Law § 130.1 (a) (2) and § 130.1 (a) (3) and which are applicable to approximately 80, 403 CSEA bargaining unit members in various salary grades do not provide compensation to the claimants for sleep times and meal times within their scheduled tours of duty. The defendant, on the other hand argues that sleep times and meal times are included in the claimants' salaries which compensate them for all 106 non-overtime hours spent on the job in each 14 day period.

The Court's examination of the motion and cross-motion must begin with an overview of the FLSA. The FLSA has been called the "minimum wage/maximum hour law" (Monahan v Chesterfield County, Va., 95 F3d 1263, 1266) and was enacted in 1938 as the result of Depression era high unemployment and abusive working conditions (see, Mechmet v Four Seasons Hotels, Ltd., 825 F 2d 1173, 1176 (ed Cir., 1987). Its substantive sections focusing on minimum wage rates and maximum working hours attest to its limited purposes (see, Lyon v Whisman, 45 F 3d 758, 764). The FLSA was not applicable to state and municipal governments until the Supreme Court's landmark decision in Garcia v San Antonio Metro Transit Auth., 469 US 528 (1985).

Section 206 of the FLSA mandates the hourly minimum wage due to all employees and section 207 delineates maximum work hour limitations. Section 207 generally requires employers to pay employees at a rate of one and one-half times an employee's regular rate of pay for all hours in excess of forty hours per work week. However, "[r]ecognizing the unique nature of work performed by police officers and firefighters, Congress provided a partial exemption to the FLSA's overtime requirements for public agency employers" (Monahan v Chesterfield Co. Va., supra, 29 USC § 207 (k)). That exemption, which must be narrowly construed (see, Johnson v City of Columbia, S.C., 949 F2d 127, 129-30), "allows less generous overtime compensation for individuals 'engaged in fire protection activities' " (Schneider v City of Springfield, 2000 WL 988279 (USDC, S. D. Ohio). In fact, section 207 (k) provides a partial overtime pay exception for any employee in fire protection activities and "permits them to work a total of 212 hours during a work period of 28 days before being entitled to overtime compensation" (Christian v City of Gladstone, Missouri, 108 F3d 929). "This allows the use of rotating schedules where employees work 24 hours and then have 48 hours off" (Id.).

As one court observed:
The purpose of the FLSA was to set limits on minimum wages and the number of hours an employee is permitted to work before the employer is required to pay overtime. All that the FLSA requires is that an employee be paid at least the minimum wage for all hours worked, and if no exemption applies, overtime pay for each hour in excess of the statutory minimum (Bolick v Brevard County Sheriff's Dept., 937 F. Supp 1560, 1568 (USDC, M.D. Fl).
The Court in Bolick, (supra) then went on to hold that:
The relief available to employees who claim violations of § § 206 and 207 of the FLSA is limited to 'their unpaid minimum wages, or the unpaid overtime compensation, as the case may be and in an additional equal amount as liquidated damages.' 29 USC § 216 (b). Section 215 of the FLSA lists 'prohibited acts' as being a violation of § § 206 (minimum wage), 207 (maximum hours/overtime provision), 212 (child labor), 211 (c) (record keeping), 215 (a) (3) (retaliation) or regulations issued under § 214 (employment of apprentices and others). There is no mention of any other regulatory or statutory provision in § 215.

[20] As a general rule, an employee cannot succeed on a claim under the FLSA if his average wage for a period in which he works no overtime exceeds minimum wage. Blankenship v Thurston Motor Lines, 415 F2d 1193, 1198 (4th Cir. 1969); United States v Klinghoffer Bros. Realty Corp., 285 F2d 487, 490 (2d Cir. 1960); Cuevas v Monroe Street City Club, Inc., 752 F Supp 1405, 1417 (N.D. Ill. 1990); Dove v Coupe, 759 F2d 167, 171 (D.C. Cir. 1985); Travis v Ray, 41 F Supp 6, 8 (W.D. Ky,.1941); accord, Hensley v MacMillan Bloedel Containers, 786 F2d 353, 357 (8th Cir. 1986); Marshall v Sam Dell's Dodge Corp., 451 F Supp 294, 301-303 (N.D.N.Y. 1978). Indeed, partial summary judgment is appropriate where there is no dispute that the plaintiffs' salary is above the minimum wage, and that they are owed no overtime (Arnold v State of Arkansas, 910 F Supp 1385, 1393, W.D. Ark. 1995).
In support of the motion claimants' counsel alleges in paragraphs10 through 13 of his affirmation that sleep and meal times were excluded from claimants' compensable time because they normally worked 106 hours in a pay period and were compensated the same as employees who worked only 75 or 80 hours in a pay period and that when they worked more than 106 hours in a pay period they were paid statutory overtime at a rate of time and one-half of an hourly rate that was "exclusive of sleep and meal times."

Claimant Woolley in paragraphs 59 through 62 of his affidavit in support of the motion alleges upon information and belief that his fellow state workers (non-firefighters or non-law enforcement personnel) holding the same Grade and Step on the salary schedule as he, received the same annual compensation for fewer total hours worked in a given pay period and from that he concludes that "I was not paid any additional compensation for working 106 hours per pay period." He further concludes that "[t]he difference in hours[8] demonstrates that sleep time and meal time is [sic] included in my work hours" and that "[t]he lack of difference in pay rate demonstrates that sleep and meal time is [sic] excluded from my compensation" (see paragraphs 63-65). Claimant Arrasate mirrored those allegations in paragraphs 57 through 59 of his affidavit; as did CSEA representative James Hennerty in his affidavit in paragraphs 35 through 37.

Claimants argue that because they are required to work 106 hours in a 14 day period the salary paid to them pursuant to a negotiated and legislatively adopted salary schedule which establishes annual amounts payable for each employee within a classified grade, including fellow State employees at the same salary grade and step as claimants who work either a 37 ½ or 40 hour work week, deprives them of compensation for the hours they spend sleeping and eating and thereby violates the FLSA. They seek "additional compensation" for working 106 hours per pay period (see, Woolley affidavit para "63," Arrasate affidavit para "57," Hennerty affidavit para "35") as differentiated from their fellow State employees whose jobs require them to work only 75 or 80 hours during a comparable 14 day period.

Section 207 (k) of the FLSA clearly allows public employers to treat firefighters and law enforcement officers differently than their fellow public employees for overtime compensation purposes as evidenced not only by the language of the statute itself but also by the promulgation of a schedule setting forth the total maximum number of hours which a firefighter or law enforcement personnel may be required to work in a given work period extending from 7 to a total of 28 days (see, 29 CFR § 553.230). As relevant to the instant claimants, that schedule provides that such employees become eligible for overtime only when their hours worked in a 14 day period exceed 106. Secondly, the FLSA does not provide for "additional compensation" for firefighters for hours worked in excess of 40 in a week or 80 in a 14 day period, a gap time claim, when the hours worked do not exceed the overtime threshold (i.e., 106) and the employee has been paid for those hours at the statutory minimum wage (see, Carter v City of Charleston, S.C., 995 F Supp 620).

Claimants appear to be confused by the federal regulations which allow a public employer to exclude a firefighter's meal time (29 CFR § 553.223) and sleep time (29 CFR § 553.222) under very specific conditions (see, paragraph "21" of the claim) from the calculation of hours worked to arrive at the statutory or regulatory threshold for overtime eligibility. It does not appear to the Court that the State has declared the claimants ineligible to receive overtime compensation for hours in excess of 106 in a 14 day period and, in fact, the claimants admit that overtime was paid for hours worked over 106 hours in a pay period. Nor does it appear that in arriving at the 106 hours of work the State excluded the time spent by the firefighters eating meals or sleeping. In fact, the affidavits of claimants Woolley and Arrasate demonstrate that during each 24 hour shift included in their scheduled 106 hours of work per 14 day period they sleep or were entitled to sleep for 8 hours and eat or were entitled to eat a one hour lunch and a one hour dinner. These affidavits further demonstrate that during the 10 hour shift claimants are afforded one hour of meal time (see Woolley affidavit paragraphs 9-17; Arrasate affidavit, paragraphs 9-17). It follows therefore, that neither hours spent by claimants in sleep or eating meals were excluded by the defendant in the State's calculation of the 106 hours of work required to reach the overtime threshold established pursuant to 29 CFR § 553.230.

In the instant claim the claimants admit that they are and were compensated at the statutory overtime rate for hours worked in excess of 106 in a 14 day period. Their claim, therefore, cannot be said to be a claim for overtime compensation pursuant to 29 USC § 207 particularly in light of their concession that this defendant elected the § 207 (k) exemption. Nor can it be said that claimants have stated a cause of action under the FLSA for a violation of 29 USC § 206 since nowhere do they allege that the compensation they received ever fell below the current statutory minimum wage of $5.15 per hour[9]. Under the above cited holding in Bolick, supra, judgment in favor of the defendant dismissing the claim is appropriate.

Viewing the claim in a slightly different context the Court feels equally compelled to reach the same conclusion. It appears that claimants are seeking a determination from this Court with regard to which of the 106 scheduled work hours, if any, were excluded from compensation in their negotiated salaries. The U.S. Circuit Court of Appeals, Fourth Circuit, in Monahan, supra at 1279-80 held that "[a]ny dispute between these two parties about the number of hours for which the employees' salary was intended to compensate them is not cognizable under the FLSA, but instead should be pursued under state contract law." The Circuit Court found in that case that the evidence of the parties' employment agreements led to only one conclusion - "that Plaintiffs were properly paid an annual salary to which they either expressly or impliedly agreed and they worked under an employment agreement which in no way violated the FLSA." Its finding in that regard was further explained in Footnote 20 where the Court said:
FN20. Again, although Appellees represent that they might not have clearly understood the number of hours for which their salary compensated them, we believe that if the officers accepted a salaried position and knew that they would be paid overtime when they exceeded 147 hours of work in a 24-day cycle, the only logical conclusion is that their salaries compensated them for all hours worked prior to the 147 hour threshold. More likely than not, the number of hours the officers were employed to work was a material term of their employment agreement. It is difficult to believe that the officers would blindly accept these positions unaware of the hours they would be expected to work or can now claim they were unaware of those hours in spite of their continued and repeated acceptance of paychecks under the same scheduling cycle. See Harrison v City of Clarksville, Tenn., 732 F Supp 810, 815 (M.D. Tenn. 1990).
The Court in Monahan also held that no cause of action exists under the FLSA for pure gap time when there is no evidence of a minimum wage or maximum hour violation by the employer. In one of several cases being considered by that Court in its decision and referred to as "Claim 2, " county police officers contended that their salary only compensated them for 135 regularly scheduled hours while the county contended that the agreed salary compensated the officers for all hours worked up to the statutory overtime threshold of 147. The Court at p. 1280 stated, "[r]egardless of which way this contractual dispute is resolved, we see no FLSA violation under either circumstance." The Circuit Court went even further in that case, examining the district court's consideration of the "clear mutual understanding" test which the court had imposed upon an employer seeking to use the fluctuating workweek method of overtime payment. The Circuit Court found that the district court had improperly imposed the test as a burden on the county with regard to pure gap time[10] claims when there was not an overtime issue. The Circuit Court of Appeals stated (supra, at 1281):
In fact, we see nothing in the regulations, interpretations or the FLSA law that requires an employer to demonstrate that there exists a clear mutual understanding with respect to the number of nonovertime hours for which an employee's salary is designed to compensate if no overtime is worked. That issue is simply one of contract law.
The Circuit Court offered the following recapitulation of its position (Id. At 1284):
In conclusion, although we recognize the importance of the FLSA's broad protections, we believe that freedom of contract between an employer and an employee is one of the precepts of the free market economy upon which this nation was founded. In evaluating a potential straight time claim, the trier of fact must look to the terms of the employment agreement and determine those terms based on the evidence of the implied or express agreement between the parties. That agreement can be determined by a written contract as well as by the everyday employment practices of the parties. As in this case, we do not believe that employees can feign ignorance of employment terms when their actions simultaneously demonstrate otherwise. For there to be an overtime gap time cause of action under the FLSA, a violation of section 206 or 207 of the Act must first exist. If the employee has been properly paid at or above minimum wage for all nonovertime hours under the terms of the employment agreement and at a proper overtime rate for all overtime hours, then the employees must look to contract law for relief concerning any disagreements about the number of hours for which his or her salary was intended to compensate. Simply put, if the terms of the employment agreement do not violate the FLSA, freedom of contract prevails.
This Court is drawn to the same conclusion with regard to the instant claim. Since claimants have not demonstrated that there is even a question of fact as to whether the defendant violated either § 206 or §207 of the FLSA it cannot sustain a cause of action under the FLSA. Claimants must look to contract law for relief concerning disagreements regarding the salary they are paid relative to the number of hours worked. Here, since the claim asserts only a single cause of action based on the alleged violation of the FLSA and no breach of contract cause of action it is hereby dismissed.


October 22, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated June 5, 2001;
  2. Affirmation of Kevan J. Acton dated June 5, 2001 with exhibit;
  3. Affidavit of William Bennett sworn to May 30, 2001 with exhibit;
  4. Cross-motion dated July 12, 2001;
  5. Affirmation of Robert Reilly dated July 10, 2001 with exhibits;
  6. Affidavit of Albert M. Woolley III sworn to July 6, 2001;
  7. Affidavit of James A. Arrasate Jr., sworn to July 6, 2001;
  8. Affidavit of James Hennerty sworn to July 10, 2001;
  9. Affirmation of Kevan J. Acton dated July 31, 2001;
  10. Affidavit of Michael F. McDonald sworn to July 31, 2001;
  11. Affirmation of Robert Reilly dated July 10, 2001.

[1]The original claim was filed February 6, 2001.

[2]29USC § 207 (k) provides:

(k) Employment by public agency engaged in fire protection or law enforcement activities

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if –

(1) in a work period of 28 consecutive days the employee receives four tours of duty which in the aggregate exceed the lesser of (a) 216 hours, or (b) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974 (in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

[3]References designated as C followed by a number refer to paragraphs of the claim.
[4]The amended claim appears to state a single cause of action alleging a continuing violation of the FLSA. It does not contain a cause of action for breach of the parties collective bargaining agreement.
[5]It appears, however, that claimants' compensation for overtime (i.e., hours worked in excess of 106 hours per 14 day period) may well have exceeded the statutory amount (see paras 49-52 of Woolley affidavit).
[6]These items are properly considered when an employer seeks to avoid overtime compensation on the grounds that the effected employees are subject to the administrative, executive exemption found in 29 USC § 213. That exemption has not been sought here by the defendant.
[7]See footnote 6, supra.
[8]Emphasis in the original.
[9]See, 29 USC § 206(a); Labor Law § 652 (1).
[10]The Court defined pure gap time as "straight time when no overtime has been worked" (see, Monahan, supra, at 1282).