Beardsley et al v. County of Saratoga

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
BRENDAN BEARDSLEY et al.,
Plaintiffs,
-v- 	1:23-CV-1641 (AJB/ML)
COUNTY OF SARATOGA,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
I. 	INTRODUCTION
On December 27, 2023, plaintiffs—a group of more than one hundred current and former
employees of the Saratoga County Sheriff’s Office—filed this civil action alleging that defendant
County of Saratoga (“defendant”) violated the Fair Labor Standards Act (“FLSA”) by, inter alia,
failing to pay them for pre-shift work that should result in overtime. Dkt. No. 1. The matter was
initially assigned to Senior U.S. District Judge Thomas J. McAvoy. See id.
Defendant answered, Dkt. No. 16, and the parties attempted mediation, Dkt. No. 26. But
when mediation failed, Dkt. No. 34, the parties agreed to conduct representative discovery using
ten mutually agreed-upon plaintiffs working in five distinct job titles at the Sheriff’s Office, Dkt.
Nos. 42-2, 45-1. The case has since been reassigned to this Court. Dkt. No. 47.
On January 17, 2025, plaintiffs moved for summary judgment on the issue of defendant’s
liability under the FLSA. Dkt. No. 42. Although plaintiffs acknowledge that a fact-finder might
be required for damages (assuming they are unable to work out the numbers after liability issues
are decided), they assert that the undisputed facts establish that defendant has failed to pay them
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for periods of pre-shift work that should result in overtime pay, and when defendant does pay
them for other periods of overtime, it often fails to do so promptly and accurately. Id.
The motion has been fully briefed, Dkt. Nos. 45, 46, and will be considered on the basis
of the submissions without oral argument.
II. 	BACKGROUND
The facts are taken primarily from plaintiffs’ Statement of Material Facts (“SOF”), Dkt.
No. 42-2, and are undisputed unless otherwise noted. For reasons explained in more detail infra,
the Court has also deemed admitted certain facts that were “disputed” in defendant’s Response to
Plaintiff’s Statement of Material Facts (“D’s Resp.”), Dkt. No. 45-1.
Plaintiffs are employed by defendant in the Sheriff’s Office. SOF ¶ 1. They hold one of
five different jobs: (1) Corrections Officer; (2) Corrections Sergeant; (3) Desk Officer; (4) Desk
Sergeant; and (5) Civil Clerk. Id. Corrections Officers and Sergeants (“CO plaintiffs”) work at
the Correctional Facility. Id. ¶ 2. Desk Officers and Sergeants (“Dispatch plaintiffs”) work in
the Communications Center of the Public Safety Building, which is located right next door to the
Correctional Facility. Id. ¶ 4. Civil Clerks also work at the Public Safety Building, but in one of
two different offices within the safety building’s Administrative Services Department. Id. ¶ 7.
CO plaintiffs work a regular schedule of 40 hours a week that is broken up into 5 days of
8-hour shifts. SOF ¶ 30. Dispatch plaintiffs work the same 40-hour-a-week schedule. Id. ¶ 74.
However, Civil Clerks are only scheduled to work 37.5 hours a week: they still work 5 days of 8-
hour shifts, but defendant deducts a 30-minute meal period from each working day. Id. ¶ 115.
Defendant has an electronic timekeeping system called “Kronos” installed in some of its
departments.1 SOF ¶ 25. But employees of the Sheriff’s Office still use a “manual punch clock”
1 Kronos-compatible timeclocks have been installed in Sheriff’s Office facilities, but employees are not required to
use them and there is currently no timeline for the Sheriff’s Office to switch over to Kronos. SOF ¶¶ 26–28.
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system for recording their time. Id. ¶ 9. Every two weeks, Sheriff’s Office employees receive a
“physical timecard” to use in one of the manual punch clocks located in the Correctional Facility
or the Public Safety Building. Id. ¶¶ 10, 13. For example, the CO plaintiffs use the punch clock
that is located in the Correctional Facility’s briefing room, id. ¶ 37, while the Dispatch plaintiffs
use the punch clock that is located near the back door of the Public Safety Building, id. ¶ 80.
Employees keep their timecards near these manual punch clocks. SOF ¶ 13. Employees
are required to insert their timecard in the punch clock at the beginning and end of each of their
scheduled shifts. Id. ¶¶ 11–12. Employees are expected to handwrite certain notations on these
timecards, including information about shift swaps, vacation days, compensatory time, and pre-
approved overtime. Id. ¶ 14; Bessette Dep., Dkt. No. 42-21 at 172 (explaining overtime must be
approved by a supervisor and will usually be noted by that supervisor on the timecard).
These timecards are collected every two weeks by Sheriff’s Office employees Heather
Bessette and Julie Grant. SOF ¶ 18. Bessette and Grant are responsible for adding up the total
number of regular hours and overtime hours on each timecard. Id. ¶ 19. These administrative
employees also record how many hours each employee might want to “bank” as compensatory
time. Id. Afterward, Bessette and Grant enter this data into defendant’s payroll software, which
is called Tyler Technologies “New World.” Id. ¶¶ 22–23. Defendant uses this payroll software
to calculate the payment owed to each employee and then generates paychecks. Id. ¶ 24.
Defendant uses a “rounding system” to determine time that an employee works beyond
the end of their regularly scheduled shift. SOF ¶ 15. This system “rounds” to the quarter hour.
Id. Thus, if the employee’s shift ended at 12:00 a.m. and they punched out at any time between
12:00 a.m. and 12:07 a.m., defendant would round that time down to 12:00 a.m. for the purpose
2 All pagination corresponds with CM/ECF headers generated on individual documents.
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of payroll. Id. On the other hand, if the same employee punched out between 12:08 a.m. and
12:22 a.m., defendant would round that time up to the next quarter hour for the purpose of
payroll, resulting in 15 minutes of overtime. Id.
Defendant also uses this rounding system to calculate the start of shifts. SOF ¶ 16. But
defendant only rounds pre-shift working time in one direction—down.3 Id. In defendant’s view,
always rounding down against the start time of scheduled shifts is no problem because officially,
Sheriff’s Office employees “are not permitted to clock in until seven minutes prior to the start of
their scheduled shift,” id., and, officially, employees “are not permitted to perform work prior to
punching in with the time clock.” D’s Resp. ¶ 17.
Under the FLSA, a “rounding” system is not necessarily problematic. An employer can
compute working time this way “provided that it is used in such a manner that it will not result,
over a period of time, in failure to compensate the employees properly for all the time they have
actually worked.” 29 C.F.R. § 785.48(b).
The central premise of this litigation is that defendant’s rounding system, in combination
with its other policies and rules, fails to compensate employees properly. To that end, the parties
agree that defendant has a Sheriff’s Office policy prohibiting employees from “clocking in” until
7 minutes before the start of their scheduled shift. SOF ¶ 16. But the problem is that plaintiffs
regularly arrive to work before the start of their scheduled shift and perform compensable work
before clocking in no more than 7 minutes early (which is always rounded down for payroll).4
3 Defendant “admits” this fact in his response to plaintiff’s SOF, D’s Resp. ¶ 16, but later purports to contest its
veracity in his opposition memo, Def.’s Opp’n, Dkt. No. 45 at 3. Based on this admission and other testimonial
evidence in the record, this fact will be deemed admitted for the purpose of summary judgment.
4 Defendant claims that an employee who clocked in more than 7 minutes early would still have their time rounded
up to the next quarter hour. See, e.g., D’s Resp. ¶ 81. Even so, Bessette testified that an employee who clocked in
more than 7 minutes early without permission from a supervisor would not be approved for payment. Bessette Dep.,
Dkt. No. 45-17 at 40–41. Defendant has failed to place this fact in dispute for the purpose of summary judgment.
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For instance, CO plaintiffs regularly arrive to work between 15 and 40 minutes before the
start of their shift. SOF ¶ 38. They use this time to obtain required equipment and gear up in the
locker room. See id. ¶¶ 38, 40, 42, 44, 47. This pre-shift routine includes locating and donning
items like a duty belt, radio, pepper spray, and a cutdown tool.5 SOF ¶ 44. Defendant “denies”
that CO plaintiffs engage in this pre-shift routine because all plaintiffs “are required to punch in
using the time clock prior to performing any job functions,” including these duties. D.’s Resp.
¶¶ 38, 40, 44.
This “dispute” over pre-shift routines aside, though, the parties agree that CO plaintiffs
work in posts staffed 24 hours a day in rotating 8-hour shifts: 12:00 a.m. to 8:00 a.m. (“A-Line”),
8:00 a.m. to 4:00 p.m. (“B-Line”), and 4:00 p.m. to 12:00 a.m. (“C-Line”). SOF ¶¶ 29, 31. The
parties agree there is no scheduled overlap between these shifts, id. ¶ 32, and agree that plaintiffs
are not allowed to leave their post until they are relieved by another officer. Id. ¶ 66. This relief
process requires the outgoing and oncoming officer to verbally exchange some information and
conduct a “count,” which takes on average 5 to 15 minutes. Id. ¶¶ 58–60.
Thus, regardless of the precise order in which each of these tasks might be performed,
and whether or not every CO plaintiff performs each task the same way every time, the record
establishes that CO plaintiffs regularly arrive and begin performing some amount of work prior
to the start of their shift (before clocking in no more than 7 minutes before that shift is scheduled
to start). SOF ¶¶ 61–63. As before, defendant “denies” these facts because this behavior would
violate the policies and rules requiring employees to punch in before performing any work. D’s
Resp. ¶¶ 61–63.
5 The parties dispute several of plaintiffs’ assertions, including the issue of whether it is routine for CO plaintiffs to
change into their uniforms before each shift and, relatedly, whether employees are permitted to wear their uniforms
to and from work. Compare SOF ¶¶ 39, 41, 43, with Dkt. No. 45-1 ¶¶ 41, 43.
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Regardless of the existence of these official policies or rules, CO plaintiffs have not been
prevented from starting to work before their scheduled shift begins and have not been disciplined
for doing so. SOF ¶ 69. Defendant “denies” these facts by citing testimony from a Rule 30(b)(6)
witness who testified that, although he did not “have any firsthand knowledge of it,” it would be
“the expectation” that a supervisor who observed a CO plaintiff doing any pre-shift work before
clocking in would take some action to “prohibit” that employee from continuing to do so, since it
would violate defendant’s official policies and/or rules. D’s Resp. ¶ 69 (citing Emery Dep., Dkt.
No. 45-14 at 128–29).
The same basic story is true about the Dispatch plaintiffs: they regularly arrive between 7
and 30 minutes before their scheduled shift. SOF ¶ 82. They use this time to perform necessary
work tasks, which includes things like logging into computers and programs. Id. ¶¶ 96–99. This
process can take between 3 and 15 minutes. Id. ¶ 98. Dispatch plaintiffs perform some of these
tasks before clocking in for their shift. Id. ¶¶ 105–06.
Again, defendant claims that this pre-shift work by Dispatch plaintiffs would violate its
policies. D’s Resp. ¶¶ 82, 96, 100. Even so, Dispatch plaintiffs have not been prevented from
doing so or disciplined for it. SOF ¶¶ 110–11. As before, defendant “denies” this assertion by
relying on testimony that only establishes a hypothetical: defendant’s Rule 30(b)(6) witness on
this topic testified that a violation of defendant’s policy “could be” grounds for discipline. D’s
Resp. ¶ 111 (citing Gordon Dep., Dkt. No. 45-20 at 89).
Civil Clerks also get to work around 15 minutes before their shift begins and start their
job duties. SOF ¶ 118. As with the other Sheriff’s Office employees, defendant’s policies and
rules preclude Civil Clerks from performing any work before punching in for the day. D’s Resp.
¶ 119. But just like the other employees, Civil Clerks regularly perform tasks for which they go
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unpaid. SOF ¶ 119. And just like other employees, Civil Clerks have not been prevented from
doing so. Id. ¶ 130. Even so, defendant “denies” this because a Rule 30(b)(6) witness testified
that “we weren’t aware of that work having been performed.” Chamberlain Dep., Dkt. No. 45-
22 at 44); see also D’s Resp. ¶ 130.
III. 	LEGAL STANDARD
The entry of summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over
a material fact is considered “genuine” when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
In conducting this analysis, the district court must view the facts and draw all reasonable
inferences in the light that is most favorable to the non-movant. See Anderson, 477 U.S. at 255.
Even so, there is no genuine issue of material fact for trial “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
IV. 	DISCUSSION
Plaintiffs contend that they are entitled to summary judgment on the issue of defendant’s
liability6 as to three FLSA claims: (1) the failure to pay for compensable work performed before
plaintiffs’ scheduled shifts; (2) the failure to properly calculate plaintiffs’ regular rate of pay; and
(3) the untimely payment of plaintiffs’ pre-approved overtime. Pls.’ Mem., Dkt. No. 42-1 at 3.
6 FLSA plaintiffs often seek a liability determination at the summary judgment stage. See, e.g., Rojas v. Splendor
Landscape Designs LTD., 268 F. Supp. 3d 405, 409 (E.D.N.Y. 2017); Inclan v. N.Y. Hosp. Grp., Inc., 95 F. Supp.
3d 490, 496 (S.D.N.Y. 2015); Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 345–46 (E.D.N.Y. 2015).
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1. Failure to Pay for Plaintiffs’ Compensable Pre-Shift Work
The FLSA “imposes minimum-wage and maximum-hour requirements on certain U.S.
employers.” Perry v. City of N.Y., 78 F.4th 502, 512 (2d Cir. 2023). As relevant here, the Act
mandates that employees get paid a higher, overtime rate for working more than 40 hours in a
single workweek. 29 U.S.C. § 207(a)(1). The statute does not actually define “work” or what
counts as a “workweek.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 225 (2014). Instead, the
FLSA defines the term “employ[ment].” 29 U.S.C. § 203(g).
Under the FLSA, “employment” is “work” that is “suffer[ed] or permit[ted].” 29 U.S.C.
§ 203(g) (cleaned up). This definition is a broad one. See, e.g., 29 C.F.R. § 785.11 (“Work not
requested but suffered or permitted is work time.”). As the Second Circuit has explained, “[i]f
the employer suffers or permits the work—either by requiring it, knowing about it, or failing to
exercise reasonable diligence to discover it—then it must compensate the employee, even if the
employee failed to report the work and even if the employer did not know that the employee was
working unpaid.” Perry, 78 F.4th at 509.
Plaintiffs have moved for partial summary judgment as to defendant’s liability for unpaid
overtime under this employee-friendly body of remedial law. Plaintiffs contend that defendant’s
timekeeping policy is “designed to evade the FLSA’s overtime requirements.” Pls.’ Mem. at 8.
As plaintiffs explain, they are “regularly and routinely” permitted to begin working “before their
scheduled shifts,” where they perform “compensable tasks that are required by the nature of their
jobs.” Id. At the same time, however, plaintiffs are not permitted to “clock into the timekeeping
system until seven minutes prior to the start of their scheduled shift.” Id.
In other words, defendant “suffers or permits” plaintiffs’ pre-shift work but enforces the
7-minute clock-in rule against them (which gets rounded down to zero for payroll). Pls.’ Mem.
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at 8. Thus, defendant’s timekeeping policy creates “daily off-the-clock, unpaid overtime work”
in addition to plaintiffs’ 40-hour-a-week schedules. Id. Accordingly, this unpaid work must be
compensated at the appropriate overtime rate under the FLSA. See id.
Defendant, for its part, contends that these “claims of unpaid overtime are disputed” and
a reasonable jury could find in its favor because it has “presented admissible evidence, including
[defendant’s] policies, witness testimony, and emails . . . showing that [these] claims of unpaid
overtime are disputed.” Def.’s Opp’n, Dkt. No. 45 at 3. As defendant explains:
Defendant has no knowledge of pre-shift work being performed and
have no reason to have such knowledge. 	[SOF ¶ 162]. 	It is the
policy of the County that employees are to punch in prior to
performing any job functions. 	Id. 	Supervisory employees of
Saratoga County are expected to take action if an employee is
suspected of performing pre or post-shift work, but supervisors are
not aware of any pre or post-shift work being performed. Id. ¶ 68-
69. 	Plaintiffs claim that Defendant maintains a policy that only
rounds down when an employee begins their shift but such is not the
case. An employee who punches in to work prior to seven minutes
before the start of their shift will be compensated with an additional
.25 hours of paid time. Id. ¶ 80. Every Post Order for employees of
the Sheriff’s Department direct employees to punch in prior to
completing any tasks. Id. ¶ 80.
Def.’s Opp’n at 3.
In reply, plaintiffs contend that defendant’s argument mistakenly conflates the distinction
between, on the one hand, an official policy that bars pre-shift work, and on the other, the factual
question of whether plaintiffs are nevertheless “suffered or permitted” to perform pre-shift work
(despite the fact that it might be occurring in violation of official policies or rules). Pls.’ Reply,
Dkt. No. 46 at 5. According to plaintiffs:
To the extent such policies might exist, they are not enforced by the
County in any way – Plaintiffs perform pre-shift work, they are
expected to perform such work, and they are not stopped from
performing the work or disciplined for doing so. 	SOF ¶¶ 67-69,
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107-111, 130. Whether or not supervisors are expected to prevent
pre-shift work is not relevant, because in practice they do not. Id.
Pls.’ Reply at 6.
The parties’ dispute turns out to have a relatively straightforward answer, as least as to
the question of defendant’s liability for unpaid overtime. “To establish liability under the FLSA
on a claim for unpaid overtime, a plaintiff must prove that he performed work for which he was
not properly compensated, and that the employer had actual or constructive knowledge of that
work.” Kuebel v. Black & Decker, Inc., 643 F.3d 352, 361 (2d Cir. 2011).
Measured against this general legal standard, the undisputed and admitted material facts
conclusively establish that all plaintiffs have performed some amount of “work” for which they
have not been compensated, and that defendant had actual, or certainly constructive, knowledge
of this work. “Ultimately, the dispute as to the precise amount of [ ] uncompensated work is one
of fact for trial.” Kuebel, 643 F.3d at 364.
First, plaintiffs have offered testimony that is sufficient to establish that each of the five
groups of Sheriff’s Office employees (CO plaintiffs, Dispatch plaintiffs, and Civil Clerks) have
performed work prior to clocking in for their scheduled shift. SOF ¶¶ 38, 40, 42, 44, 47, 61–63,
82, 96–99, 102, 105–06, 118–19, 130.
This testimony is largely if not entirely unrebutted for the purpose of summary judgment
because defendant failed to validly place these facts in dispute. In his responsive submission to
plaintiffs’ Statement of Material Facts, defendant purports to “deny” these paragraphs. In doing
so, defendant has (1) cited to documents and testimony that establish the existence of a policy or
policies requiring each category of employees to clock in before starting work, D’s Resp. ¶¶ 38,
40, 44, 61–63, 82, 96, 105, 119, 130, (2) asserted in conclusory terms that there is “ample time”
for plaintiffs to clock in before starting work, id. ¶¶ 61–63, and (3) asserted, again in conclusory
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terms, that defendant is not aware of plaintiffs doing work before clocking in, id. ¶¶ 82, 96, 105,
119, 130.
But these “denials” do not place plaintiffs’ testimonial offering in dispute. As plaintiffs
correctly point out, what is relevant for FLSA liability is whether all plaintiffs were “suffered or
permitted” to perform unpaid, pre-shift work, not whether official policies and/or rules exist that
might preclude this pre-shift work. See Pls.’ Reply at 5.
Keep in mind that this is summary judgment. Rule 56 creates a screening-out procedure
that tasks the court with “discerning whether there are any genuine issues of material fact to be
tried.” Gallo v. Prudential Res. Servs., Ltd. P’Ship, 22 F.3d 1219, 1224 (2d Cir. 1994). “While
genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either
party, materiality runs to whether the dispute matters, i.e., whether [a dispute] concerns facts that
can affect the outcome under the applicable substantive law.” Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996) (cleaned up).
“A reasonably disputed, legally essential issue is both genuine and material and must be
resolved at trial.” Graham, 89 F.3d at 79. However, a genuine question of material fact does not
exist merely because the non-movant disagrees with the evidence produced by the movant. See,
e.g., Andrade v. Cultural Care, Inc., 706 F. Supp. 3d 348, 355 (E.D.N.Y. 2023). Where, as here,
the non-movant has failed to “specifically controvert” the movant’s properly supported showing,
the Court may deem those facts admitted on summary judgment. N.D.N.Y. L.R. 56.1(b)
Of course, the existence of official policies and/or rules that preclude pre-shift work may
be relevant to defendant’s knowledge of that work. However, the existence of policies and rules
does not place in genuine dispute the material facts being offered by plaintiffs, i.e., that plaintiffs
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regularly and routinely perform some amount of unpaid, pre-shift work, whether off the clock or
clocked in but rounded down to zero as a result of defendant’s timekeeping policies.
Second, in response to plaintiffs’ well-supported claims that the various kinds of pre-shift
tasks being performed by each category of plaintiffs is compensable “work” within the meaning
of the FLSA, Pls.’ Mem. at 10–11 (CO plaintiffs); 12–13 (Dispatch plaintiffs); 14 (Civil Clerks),
defendant merely attempts to dispute—in basically conclusory terms—whether or not plaintiffs
“must change into their entire uniform at work.” Def.’s Opp’n at 3.
Again, though, defendant’s attempt to place in dispute these uniform-wearing policies or
rules is beside the point. Under the “continuous workday” doctrine, employers must compensate
employees for the full period of time between the first principal activity of a workday to the last
principal activity of the workday, “even if performed before or after the regular shift.” Kuebel,
643 F.3d at 349 (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005)).
The unrebutted evidence establishes that plaintiffs perform pre-shift activities in various
orders. See, e.g., SOF ¶ 61, 104. As noted, plaintiffs have also established that these pre-shift
tasks are compensable “work” under the FLSA. See Pls.’ Mem. at 10–14. And whether or not
plaintiffs are permitted to wear uniforms to and from work, there is unrebutted evidence that
some plaintiffs do in fact change into their uniform after they arrive to work. Id. ¶¶ 42, 84, 119.
Thus, at least for the non-zero set of plaintiffs who change into their uniform (or perform
any other task that might not ordinarily be compensable work) after performing the first principal
activity of their workday, the “continuous workday” rule makes this time compensable under the
FLSA. See, e.g., Perry, 78 F.4th at 525.
As before, defendant attempts to place these and related facts in dispute by asserting that
this behavior would violate official policy. D’s Resp. ¶¶ 61–63, 82, 96, 100, 119. But as before,
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plaintiffs’ evidence establishes that they have not been prevented from starting to perform work
before their shift begins and have not been disciplined for doing so. SOF ¶¶ 69, 110–11, 130.
These unrebutted facts matter because the law is clear: an employer is obligated to take
action to stop work that it does not want to pay for. “An employer who has knowledge that an
employee is working, and who does not desire the work to be done, has a duty to make every
effort to prevent its performance.” Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir.
2008). Indeed, the Department of Labor has explained:
it is the duty of management to exercise its control and see that work
is not performed if it does not want it to be performed. It cannot sit
back and accept the benefits without compensating for them. The
mere promulgation of a rule against such work is not enough.
Management has the power to enforce the rule and must make every
effort to do so.
29 C.F.R. § 785.13. In other words, an employer must “pay for all work they know about, even
if they did not ask for the work, even if they did not want the work done, and even if they had a
rule against doing the work.” Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017).
In addition to repeatedly citing to the existence of its official policies and rules, defendant
has attempted to place in dispute plaintiffs’ showing that they have been “suffered or permitted”
to do pre-shift work (without being stopped or disciplined), by citing to supervisors or managers
who claim that conduct would result in discipline. But defendant’s citations do not place these
material facts in genuine dispute because the testimony on which defendant relies is grounded in
hypothetical or speculative scenarios.
For instance, one of defendant’s Rule 30(b)(6) witnesses7 testified that it would be “the
expectation” that a supervisor who observed a CO plaintiff doing pre-shift work before clocking
7 Under Rule 30(b)(6), an organization must produce a witness who is knowledgeable about the subject matter of
the proposed deposition. FED. R. C IV. P. 30(b)(6). The deponent’s responses are binding on the organization. See,
e.g., Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253, 268 (2d Cir. 1999).
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in would “prohibit” that employee from continuing to do so, since it would violate defendant’s
policies. D’s Resp. ¶ 69 (citing Emery Dep., Dkt. No. 45-14 at 128–29). Likewise, another of
defendant’s Rule 30(b)(6) witnesses opined that a policy or rule violation “could be” grounds for
discipline. D’s Resp. ¶ 111 (citing Gordon Dep., Dkt. No. 45-20 at 89).
These witnesses’ speculation about how defendant’s policies and/or rules are supposed to
work is hardly enough to place in genuine dispute the material fact that none of the plaintiffs has
been disciplined for, or prevented from, performing pre-shift work. See, e.g., Chao, 514 F.3d at
288 (“If [an employer] were serious about preventing unauthorized overtime, it could discipline
[employees] who violate the rule.”).
Third, plaintiffs have conclusively established that defendant knows that they perform at
least some unpaid, pre-shift work. Whether an employer has actual or constructive knowledge is
a question of fact. See Holzapfel v. Town of Newburgh, 145 F.3d 516, 521 (2d Cir. 1998). “An
employer has constructive knowledge of work if it should have known about the work through
the exercise of reasonable diligence.” Perry, 78 F.4th at 512.
Although “[c]ourts often rely on deposition testimony from employees themselves about
what their supervisors knew regarding uncompensated overtime,” Worley v. City of N.Y., 2020
WL 730325, at *5 (S.D.N.Y. Feb. 12, 2020), evidence of physical proximity to supervisors, or
work-related interactions with supervisors, during contested work periods will also be relevant to
an employer’s actual or constructive knowledge of that working time. See, e.g., Lynch v. City of
N.Y., 291 F. Supp. 3d 537, 550 (S.D.N.Y. 2018); Fangrui Huang v. GW of Flushing I, Inc., 2021
WL 54085, at *4 (E.D.N.Y. Jan. 6, 2021) (collecting cases about constructive knowledge based
on certain kinds of interactions with supervisors or managers).
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Defendants have failed to validly place in dispute plaintiffs’ strong showing of actual or
constructive knowledge. For instance, defendant admits that CO plaintiffs work in 8-hour shifts
without a scheduled overlap, SOF ¶¶ 29–32, cannot leave their post until they are relieved by the
oncoming officer, id. ¶ 66, and must engage in a face-to-face process that takes, on average, 5 to
15 minutes, id. ¶¶ 58–60. Dispatch plaintiffs’ shifts overlap in practice, too. Id. ¶ 137.
Under the timekeeping policies, this time would get rounded to zero even if it were done
“on the clock.” Defendant tries to “deny” some of this de facto shift overlap by asserting that
“shift times are approximate.” D’s Resp. ¶ 133. But even crediting this statement, the record
establishes that, through the exercise of reasonable diligence, defendant’s management should
have known about the shift overlaps: there is a camera and an electronic log in the CO plaintiffs’
briefing room, both of which can be reviewed by administrative staff, SOF ¶¶ 131–32, and the
Dispatch plaintiffs’ supervisor in the Public Safety Building can see in real-time the employees
who use their electronic fobs to access certain areas around that building, id. ¶ 138.
Defendant’s conclusory denials of knowledge also fail to create a genuine dispute of fact
about actual knowledge of at least some of this pre-shift work. For instance, it is undisputed that
the Lieutenants (who function as supervisors) “work the same shifts” as CO plaintiffs (except for
overnight shifts). SOF ¶ 135. And as for the Dispatch plaintiffs and Civil Clerks, the Dispatch
plaintiffs’ supervisor has witnessed overlapping shift changes and failed to make any inquiry or
prevent it from happening. Gordon Dep., Dkt. No. 45-20 at 72–73.
Even viewed in the light most favorable to defendant, the non-movant, the proof lines up
in one direction here: given the nature and scope of the pre-shift work, the close conditions under
which it is being performed, the limited locations at which it is being performed, and the relative
proximity of supervisory staff in those settings, there is simply no basis on which a rational fact-
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finder could not conclude that, through the exercise of reasonable diligence, defendant knew or
should have known about most if not all of plaintiffs’ routine, unpaid, pre-shift work. There is
certainly no basis on which to contest the issue of liability under the FLSA.
Defendant’s objections to this conclusion are plainly meritless. For example, defendant
claims that:
Defendant has shown through witness testimony that there was no
reason to believe any work activities were being performed prior to
the state of an employee[’]s scheduled shift because work activities
are not being performed prior to the start of their scheduled shift.
. . . . .
As no supervisor or administrator in the County has witnessed
employees performing work prior to punching in for their shifts,
there was no reason to inquire if such was occurring.
Def.’s Opp’n at 4. But these ipse dixits are conclusively rebutted by the undisputed evidence
offered by plaintiffs, which has been summarized supra.
Likewise, defendant contends that it lacked knowledge of pre-shift work because it: (1)
“maintains a reporting procedure for grievances when an employee believes that they have been
mistreated or a violation of the FLSA has been committed”; (2) “maintains policies promoting
complete documentation of their time cards so that employees will be properly compensated”;
and (3) “has held several instructional sessions to promote accurate timekeeping.” Def.’s Opp’n
at 4.
Even crediting these claims, they do not create a fact question on knowledge under the
circumstances. First off, defendant cannot delegate recordkeeping duties to its employees. 29
C.F.R. § 211(c). Second, while the existence of a reporting system may bear on the question of
constructive knowledge, an “employee’s failure to report work the employer in fact knew about
or required does not protect the employer from FLSA liability.” Perry, 78 F.4th at 513 & n.9.
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In sum, plaintiffs have established, as a matter of law, that defendant “suffers or permits”
pre-shift work, enforces the 7-minute clock-in rule, and then rounds that pre-shift time down to
zero for payroll. Because this timekeeping policy creates “daily off-the-clock, unpaid overtime
work” in addition to plaintiffs’ 40-hour-a-week schedules, this work must be compensated at an
overtime rate under the FLSA. Accordingly, plaintiffs are entitled to summary judgment as to
defendants’ liability on this claim. See, e.g., Lynch, 291 F. Supp. 3d at 551 (“[N]o reasonable
juror, on the evidence (and lack of evidence) presented, could find that defendant did not have
either actual or constructive knowledge of its employees’ uncompensated hours.”).
2. Failure to Properly Calculate Plaintiff’s Regular Rate of Pay
The FLSA requires employers to pay compensation “for a workweek longer than forty
hours” at an overtime rate, which is defined as “not less than one and one-half times the regular
rate at which he is employed.” 29 U.S.C. § 207(a). In turn, the “regular rate” is defined as the
“hourly rate actually paid to the employee for the normal, non-overtime workweek for which he
is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945).
This “regular rate” is “deemed to include all remuneration for employment paid to, or on
behalf of, the employee.” 29 U.S.C. § 207(e). Although the statute includes a list of exceptions
to this rule, § 207(e)(1)–(8), this list is exhaustive, 29 C.F.R. § 778.207(a), and these exceptions
are interpreted narrowly against the employer, see Mitchell v. Kentucky Fin. Co., 359 U.S. 290,
295 (1956), which bears the burden of showing that an exception applies, see Idaho Sheet Metal
Works, Inc. v. Wirtz, 383 U.S. 190, 209 (1966).
Plaintiffs contend that they are entitled to summary judgment on the issue of defendant’s
liability under this provision of the FLSA. See Pls.’ Mem. at 21–22. According to plaintiffs, the
undisputed evidence conclusively establishes that defendant underpaid them because it failed to
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include “shift differentials, cash payments in lieu of health insurance, and retroactive pay
increases” in the “regular rate of pay” when calculating their overtime payments. Id. at 22.
In opposition, defendant argues that the Collective Bargaining Agreement (“CBA”) in
place between the parties “incorporates such payments and Defendant[’s Rule 30(b)(6) witness]
testified that whatever was in the contract was how the rate was calculated.” Def.’s Opp’n at 5
(citing D’s Rep. ¶¶ 139–41).
In reply, plaintiffs acknowledge that the CBA does include certain premiums (including
“longevity pay”) in the base salary. Pls.’ Reply at 9 n.3. However, plaintiffs emphasize that this
claim is not about longevity pay. Id. Instead, this “regular rate” claim is based on unpaid “shift
differentials, cash payments in lieu of health insurance benefits, Rabies Clinic premiums, Field
Officer Training Premiums, Officer in Charge premiums, and retroactive pay increases.” Id.
(citing SOF ¶¶ 143–44).
On those issues, plaintiffs assert that it is no defense that the CBA “allegedly instructs the
County to pay Plaintiffs’ overtime correctly” because “the CBA does not address whether these
premiums are included in the regular rate of pay when the County calculates overtime.” Pls.’
Reply at 9. In plaintiffs’ view, “it is irrelevant whether the CBA incorporates the correct law
regarding the calculation of overtime pay, as liability is based on whether Defendant actually
paid Plaintiffs overtime at the correct rate.” Id. at 10 (emphasis in original).
Plaintiffs clearly have the better of this argument. Without belaboring the analysis with a
string of citations, the FLSA is concerned with what actually happened with an employee’s pay,
not with what an employment contract might have required. Importantly, plaintiffs retained an
expert to analyze payroll data. SOF ¶ 142. Plaintiffs’ expert found that defendant’s payments
failed to include the contested premium payments or retroactive pay increases. Id. ¶¶ 142–44.
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Defendant “admits” this expert’s findings, D’s Resp. ¶¶ 142–44, but “denies,” without
any accompanying record citation, that the findings are accurate, see id. Obviously, this is not
enough to validly place these facts in dispute on summary judgment. In fact, as plaintiffs point
out, defendant did not depose this expert, submit a competing export report, or provide any basis
on which to conclude that defendant might have properly calculated plaintiffs’ “regular rate” of
pay. Accordingly, plaintiffs are entitled to partial summary judgment as to defendants’ liability
on this “regular rate” claim.
3. Untimely Payment of Plaintiffs’ Pre-Approved Overtime
The FLSA includes a “prompt payment” requirement. Rogers v. City of Troy, 148 F.3d
52, 55 (2d Cir. 1998). As relevant here, “[p]ayment may not be delayed for a period longer than
is reasonably necessary for the employer to compute and arrange for payment of the amount due
and in no event may payment be delayed beyond the next payday after such computation can be
made.” 29 C.F.R. § 778.106. Whether this “prompt payment” requirement has been violated is
“determined by reference to objective standards,” Rogers, 148 F.3d at 58, and “focuses not only
on how often late payments were made or how late they were, but also on whether the payments
were made as soon as practicable.” Lynch, 291 F. Supp. 3d at 548 (cleaned up). Although there
is no bright line rule, several courts in this circuit have held “that two weeks is an unreasonable
amount of time for an employer to delay a paycheck.” Accosta v. Lorelei Events Grp., Inc., 2022
WL 195514, at *4 (S.D.N.Y. Jan. 21, 2022) (cleaned up).
Measured against this general standard, plaintiffs are entitled to summary judgment on
the question of liability as to this claim. As plaintiffs point out, there is unrebutted testimony
establishing that plaintiffs have been paid overtime late and have sometimes had some overtime
missing from their paychecks. SOF ¶ 147. Defendant, for its part, “denies” these assertions by
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stating: “Defendant will cut a check to an employee if overtime will not make it into their
paycheck for that week.” D’s Resp. ¶ 147.
This conclusory statement about what defendant might do with payroll does not validly
place plaintiffs’ factual offering in dispute. In an attempt to avoid this outcome, defendant also
argues that certain delays in overtime payments are caused by “instances where employees forget
to mark their timecards,” requiring administrators to follow up individually. Def.’s Opp’n at 6;
D’s Resp. ¶ 146 (claiming notes on timecards “are often missing or illegible”).
To be sure, these explanations might impact the quantum of damages. See Lynch 291 F.
Supp. 3d at 548 (“Issues that affect the practicability of payment could include both archaic and
difficult-to-manage payroll systems; they could also include the failure of plaintiffs to correctly
record their own overtime.”).
But even crediting the reality that defendant’s timekeeping system poses administrative
challenges, it would not be a defense to liability because it does not specifically rebut plaintiffs’
showing on this point—that the representative plaintiffs have been paid overtime more than two
weeks after it was worked. SOF ¶ 147.
In reaching this conclusion, it bears emphasizing that the FLSA places the responsibility
for tracking time on the employer. 29 U.S.C. § 211(c). Indeed, defendant has admitted that it
has a suitable tool available: its payroll software is able to track this information as long as it is
accurately inputted by administrative staff. See SOF ¶ 148. Accordingly, plaintiffs are entitled
to partial summary judgment as to defendants’ liability on this “prompt payment” claim.
4. Liquidated Damages
Under the FLSA, an employer “shall be liable to the employee or employees affected in
the amount of their unpaid minimum wages or their unpaid overtime compensation, as the case
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may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Even
so, district courts have “discretion to deny liquidated damages where the employer shows that,
despite its failure to pay appropriate wages, it acted in subjective ‘good faith’ with objectively
‘reasonable grounds’ for believing that its acts or omissions did not violate the FLSA.” Barfield
v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008). “The employer bears the
burden of proving good faith and reasonableness, but the burden is a difficult one, with double
damages being the norm and single damages the exception.” Herman v. RSR Sec. Servs. Ltd.,
172 F.3d 132, 142 (2d Cir. 1999) (citation omitted).
“To establish good faith, the employer must take active steps to ascertain the dictates of
the FLSA and then act to comply with them.” Herman, 172 F.3d at 142 (citing Reich v. S. New
England Telecomm. Corp., 121 F.3d 58, 71 (2d Cir. 1997)). “The defense requires plain and
substantial evidence of at least an honest intention to ascertain what the [FLSA] requires and to
comply with it.” Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987). “An employer’s actions
are objectively unreasonable when it knows of the FLSA’s requirements but does not take steps
to comply with them.” Lynch, 291 F. Supp. 3d at 548 (citing Herman, 172 F.3d at 142–43).
The record establishes that plaintiffs are entitled to liquidated damages. As plaintiffs
summarize, defendant has admitted that it failed to take many of the actions that would tend to
show good-faith compliance with the FLSA. SOF ¶¶ 149, 153, 156, 158, 168. As plaintiffs also
point out, many of defendant’s “denials” about actions that would be relevant to this compliance
inquiry are once again based on conclusory assertions about what defendant’s policies or rules
officially require. D’s Resp. ¶¶ 150, 152, 154, 159, 160, 162. But as this Court has explained,
the mere existence of official policies and rules that describe how things are supposed to work
does not validly place the relevant facts in dispute for the purpose of summary judgment.
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Finally, as plaintiff correctly argues, defendant has failed to create a genuine fact dispute
about whether an “advice of counsel” defense might apply. The advice-of-counsel defense may
be relevant to evaluating the party’s good faith where the legal advice was sought and rendered
before the alleged violation occurred. But in this case, defendant’s 30(b)(6) witness testified:
Q: 	So I don’t want to know what your attorneys told you with
respect to the lawsuit. I – I guess other than what you just
described, did the County seek any advice separate and apart
from the lawsuit with – with respect to whether its pay
policies 	and 	practices 	for 	employees 	in 	the 	Sheriff’s
Department are compliant with the FLSA?
A: 	Not – not to my knowledge. No. Not on this issue. Not –
not to the issues relative to this case.
Chamberlain Dep., Dkt. No. 45-22 at 54. In short, for the reasons explained in plaintiffs’ moving
and reply memoranda, there is no basis in this record on which to conclude that defendant could
carry its burden of proving good faith and reasonableness. Instead, there is every indication that
this is the normal FLSA case where double damages should be awarded. Accordingly, plaintiffs
are entitled to partial summary judgment as to defendant’s liability for liquidated damages.
V. 	CONCLUSION
Plaintiffs’ motion for partial summary judgment on defendant’s liability under the FLSA
must be granted. Even viewed in the light most favorable to defendant, the non-movant, there is
no basis on which a rational fact-finder could conclude that defendant does not “suffer or permit”
plaintiffs to engage in some amount of unpaid, pre-shift work. “Ultimately, the dispute as to the
precise amount of [ ] uncompensated work is one of fact for trial.” Kuebel, 643 F.3d at 364.
Likewise, in the face of plaintiffs’ unrebutted expert report, there is no genuine dispute of
fact about defendant’s failure to properly calculate plaintiffs’ “regular rate” of pay for overtime
payments. The record further establishes that defendant has, on certain occasions, violated the
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“prompt payment” requirement. Finally, it is clear from the record that this is the ordinary case
in which liquidated damages should be awarded.
A trial on damages will be time-consuming and costly. The parties are directed to meet
and confer in a good-faith effort to resolve the damages issue in a manner that is consistent with
the FLSA’s remedial purpose. To facilitate a just resolution, the Court will refrain from adding
this case to its trial calendar for a sixty-day period.
Therefore, it is
ORDERED that
1. Plaintiffs’ motion for summary judgment (Dkt. No. 42) is GRANTED; and
2. The parties shall file a joint status report in SIXTY DAYS regarding the progress of
settlement.
The Clerk of the Court is directed to terminate the pending motion and set a deadline
accordingly.
IT IS SO ORDERED.
Dated: February 2, 2026
Utica, New York.
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