New York City Sued for Alleged Late Pay

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By Jon Steingart

New York, New York. It’s a hell of a town. Overtime’s up, but paychecks are down.

That’s the allegation in a proposed class action filed Dec. 27 by school aide Edwin Henry and fire alarm dispatcher Faye Smyth. They say the city is delaying overtime and minimum wage compensation past the first paycheck after it was earned. The practice goes back to approximately December 2013, the lawsuit in the U.S. District Court for the Southern District of New York says ( Henry v. City of New York , S.D.N.Y., No. 1:16-cv-09971, complaint filed 12/27/16 ).

The case, brought under the Fair Labor Standards Act, highlights a difference in how the law addresses timeliness of pay. Overtime pay is discussed in a regulation issued by the Department of Labor, while minimum wage compensation is tackled in the department’s Field Operations Handbook. Both materials call for payment on the first regular payday after the work is performed. There is some leeway if time is needed to calculate overtime, which can be tricky for a variety of reasons, such as when employees work different positions at different hourly rates.

Neither provision allows payment to be made later than the second paycheck after the work was performed. Courts are typically less willing to rely on the handbook for interpretive guidance because it doesn’t go through the same administrative procedure as a regulation.

There are at least five occasions when Henry didn’t receive a paycheck on the scheduled payday, despite performing work during the pay period it would have covered, the lawsuit says. As a result, he was dropped from his health insurance plan because he was considered “no longer on payroll,” the complaint says.

Representatives for the parties couldn’t be reached for comment Dec. 28.

The city employees are represented by James Murphy and Lloyd Ambinder of Virginia & Ambinder LLP in New York City. An attorney hasn’t entered an appearance for the city.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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