DOT highway repairers sue city for OT pay

Hundreds of city Department of Transportation have filed a federal lawsuit over unpaid overtime.

The highway repairers and assistant city highway repairers allege that the city has routinely not paid them for work they performed during their unpaid lunch breaks and prior to their scheduled work hours. They are seeking back pay and interest.

The 383 workers who have signed onto the suit, whose job duties include maintaining and repairing the city’s streets, sidewalks, bridges and highways, are scheduled a 40-hour workweek and a daily 30-minute unpaid lunch break.

The complaint, Gismundi v. City of New York, filed earlier this month in U.S. District Court in Manhattan, claims the city failed to pay the repairers overtime, typically one and one-half times regular pay, for hours worked beyond their regular 40 hours.

The suit faults the city’s timekeeping system, CityTime, which pays employees according to their scheduled work hours, rather than using a "pay-to-punch" system, which would pay the laborers for the hours they actually worked, as the main factor for why the employees' work hours have regularly gone uncompensated.

'Work straight through'

Many of the workers, including plaintiff Darryl Scott, an assistant city highway repairer, routinely begin working before their shifts officially start, including by meeting with supervisors and preparing vehicles to transport supplies, according to the suit. Scott, whose shift starts at 6:30 am, typically works for 15-30 minutes before his scheduled shift begins. The suit says he also works through his meal break two or three times a week, meaning he is not compensated for a minimum of two hours and 15 minutes of work each week.

Although the highway repairers regularly work during their meal periods and before the start of their shifts, they are “only paid for their scheduled shift hours unless they have received prior approval to work overtime,” the lawsuit states.

“A lot of times we work straight through lunch. That was part of the reason I signed up” for the suit, another plaintiff, Jonathan Cummings, told news outlet Gothamist. 

And even when the workers were paid overtime, they were often paid an incorrect amount, since the city often failed to include night-shift differentials, the claim notes. The workers also often were not paid vehicle differentials, which are given to drivers depending on the weight of the vehicle they are tasked with operating.

The overtime payments were also typically delayed. The repairers, including Scott, often did not receive overtime pay until at least 30 days after they performed the work, even though federal labor laws mandate that “overtime compensation be paid on the regular payday for the period in which such workweek ends.”

Although the repairers’ supervisors knew they were performing uncompensated work, they never disciplined the employees for doing so, the suit says.

The city “is well aware of its obligation to pay employees for overtime work … even if the employees do not make a request for overtime compensation for that work,” the lawsuit alleges. “However, at all times relevant, [the city] has failed and continues to fail to compensate [the repairers] and those similarly situated for overtime work.” 

Anyone who has worked for the city as a highway repairer or an assistant city highway repairer within the last three years can still sign onto the lawsuit.

Diana J. Nobile, an attorney at the law firm McGillivary Steele Elkin who, along with lawyers from the Spivak Lipton firm, is representing the workers, noted that the highway repairers and assistant city highway repairers “are often working in tough conditions” — including the extreme heat and cold — to maintain city streets and roads.

“They should be paid every penny they’ve worked for,” she told The Chief during a phone interview. “People are working through their meals because of the intensity of the job and how quickly they must move.”

Because the city has the workers’ payroll records, the workers do not know exactly how much is owed to them, according to the suit. The workers want the city to conduct “a complete and accurate accounting of all the compensation to which [they] and those similarly situated are entitled.”

A DOT representative said the department is reviewing the suit.

The case is similar to a suit that was filed in February by nearly 380 eligibility specialists at the city Human Resources Administration seeking unpaid overtime. It also resembles a 2017 lawsuit brought by school safety agents, who said they did not get paid for work performed prior to the start of their shifts, for travel between schools and during their meal periods. In 2020, the city paid $27.7 million to settle that suit, but did not admit any wrongdoing.

clewis@thechiefleader.com