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Third Department Limits Hurricane Sandy Workers’ Overtime Pay

Owen H. Laird, Esq.

Identifying which public-sector employees are entitled to overtime pay is a complex endeavor, fraught with regulations, collective bargaining agreements, and bureaucracy, as well as the numerous requirements and exemptions of the Civil Service Law, New York Labor Law, and the Fair Labor Standards Act. A recent case, Matter of Roberts v. Cuomo, addressed these issues in the context of New York’s response to, and recovery from, Hurricane Sandy.

In Roberts, the New York Appellate Division, Third Department reversed a decision regarding whether “exempt” public sector employees can receive compensation for overtime worked during Hurricane Sandy. “Exempt” workers – those who generally are not entitled to overtime pay – may receive overtime compensation under certain circumstances under New York Civil Service Law § 134[6], including work done in relation to an “extreme emergency.”

During Hurricane Sandy, thousands of public employees, both “exempt” and “non-exempt,” worked thousands of hours of overtime responding to the crisis. The non-exempt workers received pay for each hour worked, while the exempt workers did not. Under normal circumstances, this would not be unusual; however, Hurricane Sandy was a disaster constituting an “extreme emergency,” and the Director of the Budget for the New York State Division of the Budget (“DoB”) issued a bulletin allowing “exempt” employees to receive overtime for hours worked above 47.5 per workweek.

The unions representing many of these exempt workers challenged the DoB’s decision, seeking overtime for all hours worked above the regular workweek. The statute allows the DoB to authorize overtime for hours worked above the normal workweek, which for the employees in question was typically 37.5 hours per week. The unions argued that the DoB’s decision was arbitrary and that the DoB did not have adequate grounds to establish an overtime floor at 47.5 hours per workweek, and that the DoB should have to pay the exempt workers overtime for all hours worked in excess of the employees’ typical workweek. The Albany County Supreme Court agreed, ordering the State to pay these exempt employees overtime for all hours worked over 40 per workweek, performed in response to Hurricane Sandy.

Upon appeal by the State, the Third Department reversed the trial court’s decision.  The court summarily rejected the unions’ claim that the DoB had acted arbitrarily, citing to Matter of Kent v. Cuomo, where it found that a 47.5 hour-per-week overtime floor established by the DoB was not arbitrary, but justifiable under the applicable statutes and regulations.

In effect, by not examining the facts surrounding the Sandy-related overtime and simply referring to prior case law, the Third Department gave the DoB approval to set 47.5 hours per-workweek as the threshold for exempt-employee overtime in extreme emergencies. These employees will not receive overtime until working more than 47.5 hours in a given week.

If you believe your employer misclassified you as an exempt employee, or otherwise believe that your employer is not paying you the overtime that you are due, contact The Harman Firm, LLP.

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