Person working off the clock

The Off-the-Clock Work Dilemma: Insights from the Perry v. City of New York Case

By Douglas Lipsky

Every day, countless employees clock out from their official working hours but continue to work off-the-clock. This unrecorded work is a gray area for both employees and employers. However, a recent appellate court ruling has clarified the boundaries of off-the-clock work

The Backdrop

In Perry et al. v. City of New York, a certified collective of 2,519 EMTs and paramedics working for the New York City Fire Department argued that they weren’t compensated for certain activities before and after their official shifts. These activities, though outside of their recorded working hours, were essential to their roles. The outcome of this case has been both eye-opening and instructive for employers and workers alike.

The Core Issue

Many wage-and-hour lawsuits center around “off-the-clock” claims, bringing up the question: Should employers be liable for work not recorded by their employees? In Perry v. City of New York, 2,519 EMTs and paramedics answered this with a resounding ‘yes,’ leading to a jury awarding them a hefty sum of over $17 million for unpaid overtime and other related damages.

The Appeal and Its Repercussions

The City of New York challenged the jury’s verdict, focusing on the notion that the plaintiffs did not log their pre- and post-shift activities, making it difficult for the city to be aware of such undertakings. The Second Circuit Court, however, provided clarity by emphasizing that work qualifying for compensation under the FLSA is that which employers demand, are aware of, or reasonably should have known about.

When Are Employers Liable?

While the court acknowledged the principle that unreported work might not always make employers liable, it highlighted a crucial exception: If there’s substantial evidence to suggest that an employer should have known about the work being done off-the-clock, they could be held accountable. In this case, the City was deemed liable because EMTs and paramedics could not have executed their duties without these pre- and post-shift activities and had expressed concerns about not being compensated for them.

Establishing a Reporting Mechanism

One of the most significant takeaways from this case is the emphasis on the importance of a reliable reporting system. The court pointed out that having a robust process for employees to log their work hours could shield employers from potential FLSA liability. This system, however, should be devoid of any hindrances that might prevent employees from reporting their time accurately.

Why This Matters

The Perry case is a guideline on how employers should approach off-the-clock work. Instituting a transparent and effective system to report working hours is essential. Employers need to be proactive, ensuring that employees are compensated for all their efforts, whether within standard hours or beyond. At the same time, this ruling empowers workers, underscoring the importance of being vigilant in reporting work hours and understanding their rights. And if you are involved in a dispute over wages, talk to an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.