Perry v. City of New York

21-2095
Perry v. City of New York
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

____________________

August Term, 2022

(Argued: February 7, 2023 Decided: August 25, 2023)

Docket No. 21-2095

____________________

CHAZ PERRY, WAYNE ASKEW, BRANDAN BASS, JAMES BEDDIA, FRANTZ BONNEAU,

ET AL.

Plaintiffs-Appellees,

v.

CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT,

Defendants-Appellants.

____________________

Before: JACOBS, LEE, and PÉREZ, Circuit Judges.

In this collective action, a group of 2,519 EMTs and paramedics allege that
their employer, the City of New York, willfully violated the Fair Labor Standards
Act by requiring them to perform work before and after their shifts without
paying them for that work unless the plaintiffs specifically requested overtime
compensation from the City. A jury agreed following a twelve-day trial, and the
U.S. District Court for the Southern District of New York (Broderick, J.) entered a
$17.78 million judgment against the City. The City now appeals, raising four
arguments: (1) the jury’s liability verdict cannot stand because plaintiffs failed to
request overtime pay for the work at issue; (2) the jury’s willfulness finding was
not supported by the evidence; (3) due to an erroneous instruction, the jury failed
to make a necessary factual finding regarding the calculation of damages; and (4)
the district court incorrectly forbade the jury from considering whether one
component of the plaintiffs’ post-shift work was de minimis and therefore non-
compensable. The City accordingly asks that we reverse the jury’s verdict or
remand for a new trial on damages. We decline to do so and instead AFFIRM in
toto.
____________________

JAMISON DAVIES (Richard Dearing,
Devin Slack, Daniel Matza-Brown, on the
brief), of counsel, for Hon. Sylvia O.
Hinds-Radix, Corporation Counsel of
the City of New York, New York, NY for
Defendants-Appellants.

SARA L. FAULMAN (Gregory K.
McGillivary, Molly A. Elkin, Diana J.
Nobile, on the brief), McGillivary Steele
Elkin LLP, Washington, DC for Plaintiffs-
Appellees.
DENNIS JACOBS, Circuit Judge:

In this collective action, a group of EMTs and paramedics won a multi-
million-dollar verdict against their employer, the City of New York, for unpaid
overtime wages. The 2,519 plaintiffs alleged that the City required the plaintiffs
to perform work tasks before and after their shifts but compensated for that time
only if plaintiffs requested overtime pay. After a twelve-day trial, the jury agreed
and found that the City’s failure to pay for work it required was a willful
violation of the Fair Labor Standards Act (“FLSA”).

The City’s principal argument on appeal is that it cannot be held liable for
the unpaid overtime because it affords an opportunity to report overtime work
and, since the plaintiffs failed to report the work at issue, the City did not know
that any plaintiff was being short-changed. But an employer must pay for all
work it knows about or requires, even if the employee does not specifically
request compensation for it. Whether an employee reports overtime work will
often be relevant to an employer’s knowledge of the work—but allowing, or even
requiring, an employee to report overtime work does not absolve employers of
the obligation to compensate for work they suffer or permit.

Moreover, we now hold that whether an employer knows an employee is
not being paid is irrelevant to FLSA liability. If 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. And because the record supports the
jury’s finding that the City had a policy or practice of requiring plaintiffs to
perform work before and after their shifts, we uphold the jury’s verdict that the
City violated the FLSA by not compensating them for that work.

Nor do the City’s other arguments require reversal or vacatur. First, the
jury’s willfulness finding is adequately supported by evidence that the City
knew the plaintiffs were performing unreported extra-shift work yet took
insufficient action to remedy the situation or to confirm its assumption that it
was in compliance with the law. Next, the City complains that the district court
should have—but did not—instruct the jury that plaintiffs had to show that 100
percent of the time included in plaintiffs’ damages calculation was FLSA-
compensable. We conclude that this was not fatal to the verdict, since making
such a showing would have been impossible in this case, and plaintiffs put
forward an adequate approximation that showed the amount of their
uncompensated work as a matter of just and reasonable inference. Finally, the
City was not entitled to have the jury determine whether one certain component
of the plaintiffs’ post-shift work was de minimis—an issue decided against the
City at summary judgment. The de minimis inquiry generally applies to the
claimed work as a whole, not to each task the employer requires. An employer
may not avoid FLSA liability by segmenting extra-shift work into small tasks that
may separately be deemed de minimis. And here, remand is inappropriate
because no reasonable jury could have found for the City under any permissible
framing of the de minimis inquiry.

I

On this appeal from a jury verdict, the facts are derived from trial
testimony with all inferences drawn in favor of the plaintiffs. Plaintiffs are 2,519
Emergency Medical Technicians (“EMTs”) and paramedics1 employed by the
Emergency Medical Services (“EMS”) division of the New York City Fire
Department (“FDNY”) and thus ultimately by the City of New York (collectively,
“the City”). 2 As emergency responders, plaintiffs provide time-sensitive,
potentially life-saving medical care in myriad emergency situations, including

1These two jobs are similar; the main difference is that paramedics have received
additional training (and accordingly hold a paramedic’s license) and are thus able to perform
more advanced procedures and care for more seriously injured patients. To avoid
circumlocution, we will occasionally use “EMT” to reference both groups.
2 There is a minor discrepancy in the record regarding the exact number of plaintiffs: the
parties, both in the district court and on appeal, have consistently represented the number as
2,519; but a list submitted to this Court (and incorporated by reference into the district court’s
judgment) numbers 2,520 individuals. Since the true number has no bearing on our disposition
of this appeal, we merely note the discrepancy and follow the parties’ lead by using 2,519.

2
acute illness, drug overdoses, accidents, and shootings. Plaintiffs work eight-
hour shifts during which they are on call. Though based out of stationhouses
throughout New York City, plaintiffs spend their shifts waiting in an ambulance
at a designated location away from the stationhouse. An ambulance crew can
receive a call at any time during the eight-hour shift.

Preparation is needed before EMTs can set out with an ambulance. In
order to respond to calls effectively and safely, each EMT has a set of personal
protective equipment (“PPE”), including helmet, gloves, pants, coat, and a
respirator. Before an EMT can log on to her ambulance, she must retrieve this
PPE from her locker and inspect it to make sure it is in order. The same goes for
gear, including a radio, radio holster, stethoscope, shears, and a duty belt. An
EMT also carries a “Technician’s Bag” with additional first aid materials, which
(like the other equipment) must be retrieved and inspected. Finally, once the
outgoing shift has returned with the ambulance, EMTs must perform a thorough
inspection of the vehicle before being able to log on as available to respond to a
call.

There is a similar sequence at the end of a shift. After returning to the
station, plaintiffs: exchange certain equipment with the oncoming shift, noting
the exchange in a logbook; inform the oncoming shift of pertinent information,
such as hospital capacity, special events in the city, or issues with the ambulance;
and secure and store their PPE and personal gear in the appropriate lockers.

The City’s electronic timekeeping and payroll system, CityTime, utilizes a
“pay to schedule” approach. J.A. 2920. Under that system, employees are
automatically paid only for time during their shift, not for time at the station
performing work before or afterward. CityTime registers presence at the station
to the minute using scanners located by the entrance of each stationhouse. So, if
an EMT scans in to CityTime ten minutes before the shift and scans out ten
minutes after it ends, she will automatically be paid for the eight hours during
the shift but not for the ten-minute intervals before and after, chunks of time the
parties call “slivers.” See, e.g., id. Per City policy, an EMT who performs work

3
during a sliver must submit an overtime request in order to be paid. 3 Plaintiffs
regularly requested overtime pay, including sometimes for pre-shift work. J.A.
2459. But plaintiffs did not request overtime pay on 99 percent of the occasions
they scanned in before their shifts. 4 J.A. 2410.

In February 2013, plaintiffs brought this lawsuit, alleging that the City
willfully violated the FLSA through a policy or practice of requiring work
without payment unless pay was requested. They sought backpay for their
unpaid extra-shift work. The City’s motion to dismiss the complaint was denied.
Perry v. City of New York, No. 13-cv-1015, 2013 WL 6641893 (S.D.N.Y. Dec. 17,
2013).

Following discovery and supplemental pleading, the parties cross-moved
for summary judgment; the district court granted each motion in (small) part but
left for the jury the key questions of the City’s policy regarding extra-shift work
and the willfulness of any violation. See Perry v. City of New York, No. 13-cv-
1015, 2018 WL 1474401 (S.D.N.Y. Mar. 26, 2018) (“Perry I”). The district court
then certified plaintiffs’ suit as a “collective action.” Perry v. City of New York,
No. 13-cv-1015, 2019 WL 1146581 (S.D.N.Y. Mar. 13, 2019) (“Perry II”); see 29
U.S.C. § 216(b) (permitting collective suits “by any one or more employees for
and in behalf of himself or themselves and other employees similarly situated”).
The plaintiffs were similarly situated, the district court ruled, “with regard to
[the allegation that] Defendants have a policy or practice requiring

Pursuant to a collective bargaining agreement with the City, EMTs and paramedics are
3

ordinarily entitled to overtime for all time worked before or after an eight-hour shift even if it
totals fewer than forty hours per workweek. In this lawsuit, however, plaintiffs seek
compensation only for time worked in excess of the FLSA’s forty-hour workweek threshold.
There was evidently some confusion over whether overtime requests for pre-shift work
4

were even permitted. Multiple plaintiffs testified to their understanding that it was not, some
because they were told so and others because CityTime did not provide a code for requesting
overtime related to completion of pre-shift tasks. See J.A. 1319–20, 1556–58, 1949–50. And as
discussed further in Part III infra, even some high-level EMS supervisors testified that overtime
was not available for pre-shift work. J.A. 1515, 1843–44.

4
EMTs/Paramedics to conduct pre- and post-shift work, and that they are not
compensated for all of this work.” Perry II, 2019 WL 1146581, at *8.

In a twelve-day trial held six-and-a-half years after the complaint was
initially filed, the jury heard testimony from thirteen plaintiffs, multiple FDNY
supervisors and administrators, a city legal official, and competing experts on
damages. The jury found the City liable for the unpaid overtime and found that
its violation of the FLSA was willful. Based on that verdict, the district court
ultimately entered a judgment against the City for $17,780,063, allocated as
follows: backpay in the amount of $7,238,513; plus the same amount in
liquidated damages; 5 and $3,303,037 in attorneys’ fees. Final Judgment, Perry v.
City of New York, No. 13-cv-1015 (S.D.N.Y. Feb. 5, 2020), Dkt. No. 313. The City
then moved for judgment as a matter of law or for a new trial pursuant to
Federal Rule of Civil Procedure 50(b), which the district court denied in August
2021. See Perry v. City of New York, 552 F. Supp. 3d 433 (S.D.N.Y. 2021) (“Perry
III”). The City timely appealed.

II

The City’s principal attack is on the jury’s finding of an FLSA violation. In
addition to disputing the existence of a policy requiring extra-shift work, the City
asks this Court to adopt a rule of law that would require plaintiffs to show both
that the employer required or knew about the overtime work and that it also
knew that the workers would not be paid for it. In effect, the City argues that it
does not have to compensate for required overtime work unless employees
report the work and request pay. That appealing proposition is not the law.

An employer violates the FLSA when it does not pay overtime wages for
work it “suffers or permits,” that is, work it requires, knows about, or should
have known about. Whether the employer also knows that the employee will not

5 In addition to backpay, successful FLSA plaintiffs are generally entitled to an equal
amount of liquidated damages. See 29 U.S.C. § 216(b); Barfield v. N.Y.C. Health and Hosps.
Corp., 537 F.3d 132, 150 (2d Cir. 2008) (“[D]ouble damages are the norm and single damages the
exception.” (alteration omitted) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d
Cir. 1999))).

5
be paid is irrelevant to FLSA liability. Employers may, of course, require
employees to report overtime work, and an employee’s failure to do so will in
many circumstances allow the employer to disclaim the knowledge that triggers
FLSA obligations. But an employer that nonetheless requires, knows about, or
should know about work must compensate the worker, regardless of whether
pay is requested and regardless of whether the employer knows the worker will
not be paid.

In light of the FLSA’s standards and the evidence adduced at trial, we
decline to overturn the verdict. Though there were facts supporting both sides—
there always are—plaintiffs presented enough evidence of the City’s policy or
practice of requiring overtime work to support the jury’s verdict.

A

The Fair Labor Standards Act imposes minimum-wage and maximum-
hour requirements on certain U.S. employers. See 29 U.S.C. §§ 201–219. Among
the Act’s mandates is that “no employer shall employ any of his employees . . .
for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate
not less than one and one-half times the regular rate at which he is employed.”
29 U.S.C. § 207(a)(1). 6 That is, employees get time-and-a-half pay for
“employment” in excess of 40 hours per workweek. Section 207 is “aimed not
only at raising wages but also at limiting hours. In other words, these provisions
were designed to remedy the ‘evil of overwork’ by ensuring workers were
adequately compensated for long hours, as well as by applying financial pressure
on employers to reduce overtime.” Chao v. Gotham Registry, Inc., 514 F.3d 280,
285 (2d Cir. 2008) (internal citation omitted) (quoting Overnight Motor Transp.
Co. v. Missel, 316 U.S. 572, 578 (1942)). Employees may bring a civil suit against
their employer to recover unpaid overtime wages. See 29 U.S.C. § 216(b).

6 Many workers are exempt from § 207. See 29 U.S.C. § 213; 29 C.F.R. pt. 541. In
addition, § 207 itself provides alternate overtime rules for certain professions. See 29 U.S.C.
§ 207(b), (f)–(q). Neither § 213’s exemptions nor § 207’s alternate rules are implicated here.

6
 The FLSA’s broad definition of “employ[ment]” “includes to suffer or
permit [an employee] to work.” 29 U.S.C. § 203(g). 7 So defined, “employment”
includes work the employer requires; it also encompasses work the employer
actually knows about (“actual knowledge”), as well as work it should have known
about through the exercise of reasonable diligence (“constructive knowledge”). 8
See 29 C.F.R. § 785.11 (“Work not requested but suffered or permitted is work
time.”); Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011) (requiring
“that the employer had actual or constructive knowledge of th[e claimed] work”
for FLSA liability). This definition of “employment,” in tandem with § 207’s
mandate, produces the rule: an employer must pay overtime wages for work it
(a) requires, (b) knows about, or (c) should have known about through the
exercise of reasonable diligence.

Some employers require employees to report any overtime work in order
to receive compensation. This case asks us to consider what happens when an
employee in such a system works overtime without reporting it. Employee
reporting is obviously relevant to an employer’s knowledge of work: “While an

7 Whether a given task is “work” is often a contested issue—the term is not defined in
the FLSA, an omission which has precipitated “a landslide of litigation.” Sandifer v. U.S. Steel
Corp., 571 U.S. 220, 225 (2014). Mercifully, the City has never disputed that plaintiffs’ pre- and
post-shift activities are “work.” See Perry I, 2018 WL 1474401, at *4 (“Defendants do not appear
to dispute the categorization of some or all of those tasks as work.”). The question, then, is only
whether those tasks were compensable “employment” under the Act.
8 Consistent with U.S. Department of Labor regulations, we have previously used the
phrase “has reason to believe” to describe constructive knowledge. See Holzapfel v. Town of
Newburgh, 145 F.3d 516, 524 (2d Cir. 1998); 29 C.F.R. § 785.11. We see no meaningful
distinction between this articulation of the standard and the one used by our sister circuits: that
an employer has constructive knowledge of work if it should have known about the work
through the exercise of reasonable diligence. See Loy v. Rehab Synergies, L.L.C., 71 F.4th 329,
337 (5th Cir. 2023); Allen v. City of Chicago, 865 F.3d 936, 938–39 (7th Cir. 2017); Craig v.
Bridges Bros. Trucking LLC, 823 F.3d 382, 388–89 (6th Cir. 2016); Hertz v. Woodbury Cnty., 566
F.3d 775, 781 (8th Cir. 2009); Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1321 (11th
Cir. 2007); Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981). The
question is “what the employer should have known, not what ‘it could have known.’” Allen,
865 F.3d at 943 (quoting Hertz, 566 F.3d at 782); accord Craig, 823 F.3d at 389 (“[R]easonable
diligence is not an expectation of omniscience.”).

7
employer must pay for work it suffers or permits, an employer cannot suffer or
permit an employee to perform services about which the employer knows
nothing.” Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998)
(internal citation omitted). It is also relevant for constructive knowledge:
“establishing a reasonable process for an employee to report . . . work time” is
one way to exercise reasonable diligence, so an employer with such a system will
not ordinarily be chargeable with constructive knowledge of unreported work.
Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017). 9

But we have long recognized that an employee’s failure to report work the
employer in fact knew about or required does not protect the employer from
FLSA liability. In Caserta v. Home Lines Agency, Inc., 273 F.2d 943 (2d Cir.
1959), the defendant-employer “delegated to [the plaintiff] the duty of keeping
time sheets showing the hours that he worked,” paying him “for all time and
overtime shown on the time sheets” but “ke[eping] no independent record of his
time.” 273 F.2d at 945. The plaintiff had failed to record certain required tasks in
the erroneous belief that they were not compensable work, though he had
complained about this work such that the employer “knew that plaintiff was
working additional overtime not reflected in his time sheets.” Id. (quoting
Caserta v. Home Lines Agency, Inc., 172 F. Supp. 409, 413 (S.D.N.Y. 1959)). The
employer objected that the plaintiff was “barred . . . from claiming overtime pay
for time not shown on his time sheets” and thus could not recover for the
unreported work. Id. at 944.

9 A reporting requirement will not always preclude constructive knowledge. See Allen,
865 F.3d at 943 (explaining that “[t]he requirements of reasonable diligence depend on the facts
of each case” and therefore rejecting a rule which would “equate[] reasonable diligence with a
reasonable reporting process”). For example, requiring overtime reporting will not protect an
employer who then interferes with employees’ ability to report their work, such as by
surreptitiously deleting overtime requests, punishing workers who ask for overtime pay, or
otherwise discouraging employees from reporting. See id. at 939 (“[A]n employer’s formal
policy or process for reporting overtime will not protect the employer if the employer prevents
or discourages accurate reporting in practice.”); Hertz, 566 F.3d at 782 (suggesting that a finding
of constructive knowledge is possible where plaintiffs “were discouraged from submitting
overtime slips or [where] submitted slips went unpaid”).

8
 Writing for the Court, Judge Friendly rejected this argument as
“inconsistent with both the language and the policy of the Fair Labor Standards
Act,” id. at 946, holding that the employer could not escape liability for work it
knew about (and indeed seems to have required 10) by reason of the plaintiff’s
failure to record the time. “The obligation [to comply with § 207] is the
employer’s and it is absolute,” we explained: “[The employer] cannot discharge
it by attempting to transfer his statutory burdens of accurate record keeping and
of appropriate payment[] to the employee.” Id. (internal citation omitted).

In any wage-and-hour regulatory scheme, somebody must bear ultimate
responsibility for recording time worked and for ensuring that payment is made.
From Caserta on, we have recognized that the FLSA places the payment
obligation on employers, a congressional choice consistent with the desire to
“remedy the ‘evil of overwork’” and to “apply[] financial pressure on employers
to reduce overtime,” Chao, 514 F.3d at 285. See, e.g., Foster v. City of New York,
Nos. 14-cv-4142, 14-cv-9220, 2017 WL 11591568, at *20 (S.D.N.Y. Sept. 30, 2017)
(Gardephe, J.) (“[T]he FLSA imposes on employers—and not on employees—the
obligation to ensure that employee time records accurately reflect hours
worked . . . .”). If it wishes to avoid the expense of overtime work it requires, the
employer must prevent the work from occurring. See 29 C.F.R. § 785.13; Chao,
514 F.3d at 288.

The principle—that failure to claim overtime does not discharge the duty
to pay if the employer was on notice of the work—is well-settled in this Court
and in other Circuits, as shown in the margin. 11 It is instructive to consider the

10 The plaintiff in Caserta was a driver, and his “duties required him to go each morning
to a garage in Brooklyn to pick up one of the [defendant’s] cars” and then drive it back into
Manhattan. 273 F.2d at 945. After work, he drove the car back to Brooklyn and “supervised its
servicing.” Id.
11 See, e.g., Kuebel, 643 F.3d at 363 (“[O]nce an employer knows or has reason to know
that an employee is working overtime, it cannot deny compensation simply because the
employee failed to properly record or claim his overtime hours.”); Holzapfel, 145 F.3d at 524
(similar); Allen, 865 F.3d at 938 (“Employers must, as a result, 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. . . . That strict rule has a limit, however. It ‘stops short of
9
Tenth Circuit’s decision in Aguilar v. Management & Training Corp., 948 F.3d
1270 (10th Cir. 2020), which arose from facts similar to this case. The employer
knew or required that its employees arrive early to (among other things) receive
a pre-shift briefing and collect and inspect their gear; but it did not compensate
for all of that time unless the employee submitted a request. See 948 F.3d at
1274–75. The Tenth Circuit acknowledged that “if an employer does not know
that an employee is doing certain work, then the employer is not required to pay
the employee for that work”—but it held that “if the employer is aware of the
work and therefore ‘suffer[s] or permit[s]’ the work, it must pay the employee.”
Id. at 1286 (alterations in original). The employer “‘cannot stand idly by and
allow [plaintiffs] to perform overtime work without proper compensation, even
if’ the [plaintiffs] did not claim overtime compensation . . . .” Id. at 1287 (quoting
Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 964 (5th Cir. 2016)).

The City seems to argue for a different rule: that an employer cannot be
held liable for unpaid, unreported overtime work unless it knew that the
employee would not be paid, even if it required or knew about the work. That is,
the City argues that the decisive issue is the employer’s knowledge of non-
payment rather than its knowledge of the work itself.

For support, the City cites White v. Baptist Memorial Health Care Corp.,
699 F.3d 869 (6th Cir. 2012), in which a nurse alleged that she had not been
compensated for time she worked during (unpaid) meal breaks. (Such a claim is
conceptually identical to one for unreported overtime work, and it was analyzed
as such. Id. at 873.) A divided panel of the Sixth Circuit ruled for the employer:
although “White occasionally told her supervisors that she was not getting her

requiring the employer to pay for work it did not know about, and had no reason to know
about.’” (quoting Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011))); Fairchild v.
All Am. Check Cashing, Inc., 815 F.3d 959, 964 (5th Cir. 2016) (“An employer who is armed with
[knowledge that an employee is working overtime] cannot stand idly by and allow an employee
to perform overtime work without proper compensation, even if the employee does not make a
claim for the overtime compensation.” (alteration in original; citation omitted)); Newton v. City
of Henderson, 47 F.3d 746, 748 (5th Cir. 1995) (same); Forrester v. Roth’s I.G.A. Foodliner, Inc.,
646 F.2d 413, 414 (9th Cir. 1981) (same).

10
meal breaks,” the court reasoned, “she never told her supervisors that she was
not being compensated for missing her meal breaks.” Id. at 876. “Accordingly,”
the court explained, “there is no way [the employer] should have known she was
not being compensated for missing her meal breaks.” Id. (emphasis added); see
also id. at 873 (“[T]he issue is whether [the employer] knew or had reason to
know it was not compensating White for working during her meal breaks.”);
Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 389 (6th Cir. 2016)
(summarizing White as requiring knowledge of non-payment). In addition,
there appears to be division among the district courts of this Circuit regarding
the relevance of knowledge of non-payment. 12

We hold that knowledge of non-payment is irrelevant to FLSA liability. 13
Our reasons are as follows.

First, we consult the text of the FLSA. A worker is entitled to overtime pay
for certain hours he is “employ[ed],” 29 U.S.C. § 207(a)(1), which the statute
defines to mean performing work his employer “suffer[s] or permit[s]” (i.e.,
requires, knows about, or should know about), 29 U.S.C. § 203(g). Our decision
in Caserta and our subsequent iterations of its rule in Holzapfel and Kuebel
embody that straightforward understanding of the FLSA. To hold that § 207 is

12 Compare Campbell v. City of New York, No. 16-cv-8719, 2021 WL 826899, at *5
(S.D.N.Y. Mar. 4, 2021) (suggesting that knowledge of work does not support liability “where
the Defendant reasonably believes that workers are in fact being compensated for overtime” and
that the focus is on whether the employer can “be expected to have knowledge that the
employee is not being paid” (internal citation omitted)), and Edwards v. City of New York, No.
08-cv-3134, 2012 WL 1694608, at *3–5 (S.D.N.Y. May 15, 2012), and Foster v. City of New York,
Nos. 14-cv-4142, 14-cv-9220, 2017 WL 11591568, at *20–25 (S.D.N.Y. Sept. 30, 2017), with Perez v.
City of New York, No. 12-cv-4914, 2017 WL 4326105, at *12–13 (S.D.N.Y. Sept. 27, 2017)
(Engelmayer, J.) (explicitly rejecting a knowledge-of-non-payment rule on the authority of
Caserta, Holzapfel, and Kuebel: “To the extent White is read to . . . absolve the employer of
liability for overtime hours of which it was aware, it is inconsistent with the Second Circuit[‘s]
caselaw . . . .”).
13 This is not to say such knowledge is meaningless. Whether an employer knows that
an employee is or is not being paid for certain work is highly relevant to the willfulness of a
violation. For that reason, we address the City’s arguments regarding such knowledge in Part
III infra.

11
violated only when the employer also knows that the employee will not be paid
would add an extra-statutory precondition for liability.

Second, employees cannot waive the protections of the FLSA. See, e.g.,
Tony & Susan Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 302 (1985) (“[T]he
purposes of the Act require that it be applied even to those who would decline its
protections.”). Yet the City’s rule is tantamount to saying “that an employee may
waive FLSA protections by not reporting time her employer knows about . . . .”
White, 699 F.3d at 881 (Moore, J., dissenting); see also Chao, 514 F.3d at 290
(“[O]nce it is established that an employer has knowledge of a worker’s overtime
activities . . . liability does not turn on whether the employee agreed to work
overtime voluntarily or under duress.”). We recognized in Caserta that “acts that
would normally have controlling legal significance are overcome by
Congressional policy,” such that “[a]n agreement . . . not to claim overtime pay
for the work here in question would be no defense to [the employee] later
demanding it.” 273 F.2d at 946.

Third, the City’s rule would collapse the “significant distinction between
ordinary violations and willful violations” of the FLSA. McLaughlin v. Richland
Shoe Co., 486 U.S. 128, 132 (1988). As discussed infra, “[a]n employer willfully
violates the FLSA when it either knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the Act.” Kuebel, 643 F.3d at
366 (internal quotation marks and citation omitted). That is, an employer
violates the FLSA willfully when it knows that it is not paying an employee for
compensable work; but if an employer is not liable unless it knows that its
employees are not being paid (as the City contends), then every violation of § 207
would automatically be willful, notwithstanding Congress’s “obvious” intent to
distinguish between these two kinds of violations, McLaughlin, 486 U.S. at 132–
33 (rejecting a rule that would “virtually obliterate[] any distinction between
willful and nonwillful violations”).

Nothing we say here calls into question the lawfulness or usefulness of
systems requiring employees to report their overtime work. As explained above,

12
such a system will in effect preclude liability in many situations. 14 But it will not
exempt an employer who required, knew about, or should have known about the
claimed work. Accordingly, liability here (like in all FLSA overtime cases) is
determined by whether the City suffered or permitted plaintiffs’ pre- and post-
shift work. We turn to that question next.

B

The City argues that the evidence at trial cannot support the jury’s finding
that the City “ha[d] a policy or practice of suffering or permitting the Plaintiffs to
perform work before [and after] their shift without pay, in violation of the Fair
Labor Standards Act[.]” 15 J.A. 3279. “We review de novo the district court’s
decision on a motion for judgment as a matter of law, applying the same
standard that is required of the district court.” Ojeda v. Metro. Transp. Auth., 41
F.4th 56, 63 (2d Cir. 2022) (quoting Smalls v. Collins, 10 F.4th 117, 131 (2d Cir.
2021)). That is, the Court must “find[] that a reasonable jury would not have a

14 The City relies on Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995), and Hertz
v. Woodbury Cnty., 566 F.3d 775 (8th Cir. 2009), in which police officers argued that their
supervisors had constructive knowledge of unreported extra-shift work because they had access
to documents reflecting the plaintiffs’ work activities. See Newton, 47 F.3d at 748–49; Hertz, 566
F.3d at 781. Both courts disagreed, concluding that access to those non-payroll records did not
establish constructive knowledge that the plaintiffs were working overtime. See Newton, 47
F.3d at 749; Hertz, 566 F.3d at 781–82. That is, the Newton and Hertz courts simply found that,
in those cases, the plaintiffs’ failure to record their hours had prevented those employers from
obtaining actual or constructive knowledge of the claimed work.
15 One wrinkle arises at the outset: plaintiffs were not permitted, as we understand it, to
argue for liability on the ground that supervisors personally observed them working. In
certifying plaintiffs’ collective action, the district court found them to be similarly situated with
respect to an alleged “policy or practice requiring” extra-shift work, Perry II, 2019 WL 1146581,
at *7 (emphasis added), but not with respect to supervisors’ actual knowledge of that work. The
district court repeatedly distinguished between these two theories of liability, in terms strongly
suggesting that its certification decision was based only on a City-wide policy of requiring the
work. See id. at *5, 7, 8. This ruling makes sense: whether one plaintiff’s supervisor observed
her working in 2011 in Queens is unconnected to whether the supervisor of a different plaintiff
saw him working in 2016 in Staten Island. In keeping with the district court’s ruling, we will
assess whether the jury was justified in concluding that the City required the overtime work at
issue.

13
legally sufficient evidentiary basis to find for the [non-movant].” Fed. R. Civ. P.
50(a)(1). In doing so, we “consider[] the evidence in the light most favorable to
the non-moving party and giv[e] that party the benefit of all reasonable
inferences that the jury might have drawn in that party’s favor.” Syntel Sterling
Best Shores Mauritius Ltd. v. The TriZetto Grp., Inc., 68 F.4th 792, 800 (2d Cir.
2023) (“TriZetto”) (quoting Triolo v. Nassau Cnty., 24 F.4th 98, 105 (2d Cir.
2022)). “We affirm the denial of a Rule 50(b) motion ‘unless there is such a
complete absence of evidence supporting the verdict that the jury’s findings
could only have been the result of sheer surmise and conjecture, or the evidence
in favor of the movant is so overwhelming that reasonable and fair minded
persons could not arrive at a verdict against it.’” Id. (quoting Ashley v. City of
New York, 992 F.3d 128, 138–39 (2d Cir. 2021)). The burden on the movant “is
‘particularly heavy’ where, as here, the ‘jury has deliberated in the case and
actually returned its verdict.’” Triolo, 24 F.4th at 105 (quoting Cross v. N.Y.C.
Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005)).

The City has not sustained its “particularly heavy” burden here: a
reasonable jury could—as it did—find that the City maintained a policy or
practice of requiring EMTs and paramedics to perform compensable extra-shift
work. And since plaintiffs were not compensated for that “employment,” the
jury properly found that the FLSA was violated.

Plaintiffs are required to be in their ambulance and ready to respond to
calls “as soon as possible after their scheduled shift starts.” J.A. 2343; accord J.A.
2246, 2273–74. Plaintiffs testified to being held to targets of five, J.A. 1676; seven,
J.A. 1836; and ten minutes after the scheduled start of their shift, J.A. 1471. Their
performance evaluations corroborate the expectation that plaintiffs be ready to
respond to calls as soon as possible. See, e.g., J.A. 4943, 4995, 5001, 5046.

But as described above, there are preliminaries before an EMT can be
ready to answer a call. One preliminary is a thorough inspection of the
ambulance, which involves “inspect[ing] the patient compartment,” “check[ing]
the outside and mechanical/safety features of the ambulance,” “check[ing] and
verif[ying] [that all patient equipment is] in working condition,” and securing

14
“all equipment in the rear of the vehicle . . . for safety.” J.A. 4848–50. Since the
outgoing tour has to return the ambulance to the station before it can be
inspected, those checks usually have to take place at the very beginning of the
paid shift: tellingly, this inspection procedure is set out in an EMS training
document entitled “The First Five Minutes of Your Tour.” J.A. 4844.

In order to do the ambulance inspection at the beginning of the shift, the
other preliminaries must be completed before the shift. Recognizing this, FDNY
regulations require that “[m]embers of the Bureau of EMS . . . [r]eport punctually
for duty as scheduled, in proper uniform, with all issued equipment and ready for
duty, unless properly excused.” J.A. 4822–23 (2012 regulation) (emphasis added);
accord J.A. 4832 (identical 2018 regulation). And the testimony of multiple
witnesses, both line EMTs and supervisors, was that an EMT is not “ready for
duty” unless he has collected and inspected the PPE, retrieved and checked the
tech bag, and otherwise prepared the equipment for the upcoming tour. 16

Those inspections, like the required ambulance check, are by no means
cursory. An “EMS Academy” training document from 2016 explained that each
item of PPE “should be taken out of the gear bag and inspected for
contamination, fabric or material damage, thread or seam damage and damage
to the reflective trim.” J.A. 4841. A similar document reminded EMTs to “check
their own equipment” in addition to the ambulance: “[PPE] gear should be
taken out of their respective bags, inspected and verified to be in a clean and

16 See, e.g., J.A. 1516 (“Q: Do you consider an EMT to be ready for duty if their tech bag
is not checked? A: No.”); J.A. 2231–32 (“Q: An EMT or paramedic is not ready for duty if they
do not have their PPE gear with them, correct? . . . . If their PPE is not ready, if their PPE is not
fully checked and stocked[?] A: If their PPE is not fully checked, are they ready for duty, no.”);
J.A. 1457–59 (“Q: As a lieutenant do you have a preference for whether or not [EMTs] should
check those tech bags prior to the start of their shift? A: Prior. Q: And do you consider an EMT
to be ready for duty if they don’t have a fully checked and stocked tech bag? A: No. . . . Q: Are
the EMTs and paramedics required to have th[eir] equipment . . . ready and accounted for in
order to be ready for duty? A: Yes.”); J.A. 2340 (“Q: You would agree that the technicians and
medics have to have their equipment in working order in order to be ready for duty,
correct? . . . . A: Yes.”); see also J.A. 4841 (EMS training document) (“[A]ll . . . PPE . . . should be
inspected at the start of your tour, as well as after every use.”).

15
functional condition.” J.A. 4850. In line with these training documents, one
plaintiff attested to the expectation that an EMT is “responsible for making sure
that [PPE] is in good working order before [he] actually need[s] to use it . . . . [b]y
actually physically taking it out of the bag, holding it in [his] hand and
examining it . . . . [j]ust prior to the start of [his] tour.” J.A. 1274.

The jury could thus conclude that, in order to comply with the written
requirement that EMTs and paramedics be “ready for duty” at the start of each
shift, and to meet the expectation that they log on to a fully-inspected ambulance
as soon as possible after their shift starts, plaintiffs must arrive early to prepare
their equipment and PPE. See J.A. 1695–96 (“Q: [I]s it your understanding that at
the start of your paid shift, you are expected to have all your equipment and be
ready for duty? A: Yes. Q: Can you comply with that order when you clock in
right at the start of your paid shift? A: No.”). Performance evaluations
corroborate this aspect of the plaintiffs’ job: several plaintiffs were commended
for coming to work early in order to prepare for their shift. See, e.g., J.A. 4943,
5046; see also J.A. 1446 (testimony of supervisor: Q: “[D]oes the FDNY look
favorably upon individuals who arrive prior to the start of their shift? . . . A:
Yes.”). And multiple plaintiffs testified that, in order to be an effective
emergency responder, they had to start work early. 17

The City argues that pre-shift work could not have been “required”
because many plaintiffs arrived right at the start of their shifts and were never
reprimanded for doing so. In the City’s view, this “proves, quite simply, that
they were not required to arrive early, nor to do any work before their shifts
started.” Appellants’ Br. at 40. While this is of course relevant, it does not

17 See J.A. 1344–45 (“[Clocking in at the start of the shift] makes my day chaotic. I cannot
physically do all the things that I would normally do to be ready, and I am not at my best that
day.”); J.A. 1695 (Q: “[W]hen you clock in at the start of your paid shift, what happens? A: My
day becomes very hectic trying to get everything ready, all that gear and trying to get the
ambulance in service as fast as possible.”); J.A. 2010 (“[When I arrive two minutes before the
start of the tour] I am a bit rushed. I am not able to fully check the gear like it should be
checked . . . by the time my tour starts. So I am much more under duress trying to make sure
everything is there so I am prepared at the start of my tour.”).

16
compel a jury finding, nor does it in itself refute the countervailing evidence set
out above. Given the nature of the plaintiffs’ jobs and the expectations for their
performance, the response that plaintiffs didn’t have to come in early is not
compelling. Cf. Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706,
718 (2d Cir. 2001) (rejecting argument that pre-shift preparatory tasks were not
compensable work because plaintiff was “never expressly ‘required’ to arrive
prior to [her shift] by [her] supervisors”: “If the proper performance of their job
required the preparatory work to be completed [pre-shift], this time should have
been counted, regardless of whether anybody specifically instructed them to
arrive early.”).

In sum, there is trial evidence that the City created a job that requires
significant preparation to be done properly; it then also required that plaintiffs be
ready to go as soon as possible after the start of their shift. The City issued
formal regulations and enforced informal expectations to that effect. Testimony
showed that it was essentially impossible to comply with the City’s demands
without starting work before the paid shift. Considering the evidence in the light
most favorable to the plaintiffs, the jury had a legally sufficient evidentiary basis
for concluding that the City maintained a policy or practice of “requiring”
plaintiffs to perform compensable, pre-shift work for which they were not
automatically paid.

Similar reasoning supports the verdict with respect to post-shift work.
Plaintiffs adduced evidence of a de facto requirement that plaintiffs perform
work after their shifts. To wrap up their days, EMTs must exchange equipment
with the oncoming tour; provide that tour with pertinent information; and store
PPE and personal gear, re-inspecting anything used during the shift. Nearly
every trial witness testified that EMTs regularly perform these tasks at the end of
their shifts, and the City does not contest that they are necessary parts of the job.

But these wind-down tasks cannot be performed during the paid shift
because EMTs must keep their equipment with them and ready to go for the
whole of the shift. As one EMS lieutenant testified, “the FDNY requires [EMTs]
to maintain [their] equipment . . . until the minute their shift ends” because “at

17
any moment in time [they] can get called for an assignment,” including “one
minute to the hour that [they] get off.” J.A. 1459–60; accord J.A. 2235 (Q: “[T]he
outgoing tour [is] not permitted to hand off any of that equipment until after
their tour has ended, correct? A: That’s true. Q: And that’s because they might
get a call up to the second before their shift ends, correct? A: That is true.”). The
City does not meaningfully contest any of these premises, and the trial record
amply supports them.

It thus follows (and the jury could reasonably conclude) that EMTs must
perform work tasks after their paid shift. See J.A. 2258–59 (conceding that “[i]t’s
highly unlikely” that an EMT would be able to comply with the expectation to
keep equipment until the end of the tour without working after the end of the
shift). As with pre-shift work, the City constructed a position that required work
after the employee’s shift in order to be performed properly.

* * *

Combining the jury’s factfinding with the legal regime outlined in Part
II.A, things come into focus. The jury reasonably concluded that the City had a
policy or practice of requiring plaintiffs to report to their stations early in order
to prepare for their shift and to stay late to perform necessary wrap-up tasks.
That is, the jury found that the City “employed” plaintiffs when they performed
the pre- and post-shift work at issue. Yet the City did not automatically pay
them for this time, even though the FLSA places the burden of ensuring
compensation for such employment on the employer. For the reasons explained
above, that is a violation of the FLSA, regardless of whether plaintiffs requested
payment for their work and regardless of whether the City knew that plaintiffs
were working unpaid. We therefore affirm the district court’s denial of the City’s
motion for judgment as a matter of law and decline to set aside the jury’s liability
verdict.

III

The jury further found that the City’s FLSA violation was “willful.” “An
employer willfully violates the FLSA when it either knew or showed reckless

18
disregard for the matter of whether its conduct was prohibited by the Act.”
Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011) (quoting Young v.
Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009)). In a suit for unpaid
overtime wages, willfulness means that the employer knew that it had failed to
properly pay its employees or was reckless with regard to that failure. So
although knowledge of non-payment is irrelevant to liability, it is the sine qua non
of willfulness. “Reckless disregard can be shown through ‘action entailing an
unjustifiably high risk of harm that is either known or so obvious that it should
be known.’” Mumby v. Pure Energy Servs. (USA), Inc., 636 F.3d 1266, 1270 (10th
Cir. 2011) (quoting Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 68 (2007)). An
employer can evince reckless disregard for the unlawfulness of its conduct even
when it “may not have had actual knowledge of the violative practices.”
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999). Still, “if an
employer acts unreasonably, but not recklessly, in determining its legal
obligation, its action should not be considered willful.” Whiteside v. Hover-
Davis, Inc., 995 F.3d 315, 324 (2d Cir. 2021) (quoting Reich v. Waldbaum, Inc., 52
F.3d 35, 39 (2d Cir. 1995)). The “operative inquiry focuses on the employer’s
diligence in the face of a statutory obligation.” Mumby, 636 F.3d at 1270.

The City challenges the jury’s willfulness finding. Here too, it bears the
“particularly heavy” burden of showing that “a reasonable jury would not have
a legally sufficient evidentiary basis” for its finding. Fed. R. Civ. P. 50(a)(1). The
line between “unreasonable” and “reckless” conduct is for the jury to draw—
appellate courts are rightfully hesitant to overturn a jury’s delineation. E.g.,
Chesher v. Neyer, 477 F.3d 784, 804 (6th Cir. 2007) (“[S]uch distinctions [between
negligence and recklessness] are almost always left for a jury—rather than
appellate judges—to decide.”).

Our decision in Herman v. RSR Security Services is instructive. There, the
defendant company (“RSR”) had underpaid its employees in various ways, and
Murray Portnoy, the company’s chairman, challenged the finding that his
conduct was willful. See 172 F.3d at 138, 141–42. Portnoy was not directly
involved with payroll, but he knew that Michael Stern, the individual running

19
that department, “had conducted his earlier business activities in an illegal
manner,” id. at 142; Portnoy had also discovered that Stern had wrongly
designated some RSR employees as independent contractors on tax filings, a
separate violation, id. Portnoy nonetheless took Stern’s word for it that their
company was otherwise obeying the law and “made no effort to ascertain [his
company’s] compliance with the FLSA” even though he “could easily have
inquired into the pay rates for the [employees].” Id.

Employing a highly deferential standard of review (as we do here), id. at
139, we affirmed the willfulness finding. Although Portnoy had “repeatedly
checked with [Stern] in order to ensure that RSR was complying with the law,”
the factfinder could find that, given his notice of Stern’s past unlawful behavior,
Portnoy’s reliance “on information from [Stern] in this context was reckless.” Id.
at 142. Herman thus suggests that failure to confirm an assumption of
compliance when the defendant has reason to suspect otherwise can support a
finding of willfulness on a theory of reckless disregard.

Here, the jury found that plaintiffs “prove[d] by a preponderance of the
evidence that the Defendants willfully violated the Fair Labor Standards Act,”
J.A. 3281, a finding with two important consequences. First, it “extend[ed] the
statute of limitations period from two to three years,” Young, 586 F.3d at 207; see
29 U.S.C. § 255(a), so plaintiffs’ recovery period started in 2010 instead of 2011—a
difference of approximately a million minutes worked and $250,000 in backpay,
J.A. 2421–23. Second, in this case the jury’s willfulness determination impacted
liquidated damages. Successful FLSA plaintiffs receive liquidated damages
equal to the amount of backpay, see supra n.5, but the district court may reduce
the liquidated damages award “if the employer shows to the satisfaction of the
court that the act or omission giving rise to such action was in good faith . . . .”
29 U.S.C. § 260. Judge Broderick concluded that he lacked discretion to reduce
the award in light of the jury’s willfulness verdict, reasoning that an employer
acting in knowing or reckless disregard of its legal obligations cannot also be
acting in good faith. See Perry v. City of New York, 2019 WL 7047327, at *2–4
(S.D.N.Y. Dec. 23, 2019). (That conclusion has not been challenged on appeal.)

20
The jury’s willfulness verdict therefore resulted in a full liquidated damages
award of $7.2 million.

Thus, significant stakes ride on whether the jury’s willfulness finding is
supported by the evidence. We conclude that it is.

First, the jury could find that the City was aware that the FLSA required it
to ensure compensation for all the overtime work it knew about, regardless of
whether the employee reported the work or requested compensation. Georgia
Pestana, a senior labor lawyer for the City, testified that she told FDNY that
supervisors have a duty to ensure that employees whom they know to be
working overtime receive compensation, even if the employee did not submit an
overtime request. See J.A. 2113–15 (“Q: So it would be an employer’s
responsibility, the supervisor’s responsibility to ensure that the employees get
paid for work about which the employer is aware; correct? A: Correct. . . . Q:
This is the advice that you gave to EMS over and over, correct? . . . A: I gave it to
EMS.”).

The evidence also supports a finding that the City knew that some
required extra-shift work was not being compensated. When CityTime was
being designed in 2005, more than a thousand EMTs and paramedics asked that
the new system accommodate the extra-shift work they perform, thereby putting
the City on notice that such work was occurring and that at least some of it was
going uncompensated. E.g., J.A. 1827, 2076, 2110; see also Perry III, 552 F. Supp.
3d at 442 (noting that the City had received “complaints from thousands of [its]
employees” in 2005 regarding “potential FLSA violations”). Then, in 2008, the
City prepared a draft order forbidding EMS employees from performing extra-
shift work “unless the work has been approved by a [supervisor] and such time
has been accurately recorded on their timesheets.” J.A. 5140. The jury could
reasonably infer from the City’s drafting of this order that it knew that extra-shift
work was being performed, that it was compensable, and that EMTs and
paramedics were not reliably reporting (nor being paid for) such work. See
Perry III, 552 F. Supp. 3d at 442. It was not necessary to demonstrate that the
City knew that the particular slivers now at issue were going unpaid: knowledge

21
that some compensable, extra-shift work was not being paid suffices to put the
City on notice.

Despite its apparent knowledge of non-payment and of its FLSA
obligations, the City did little to fix the problem. The 2008 draft order remained
a draft—it was not until six years later that the FDNY actually promulgated an
order prohibiting unreported pre-shift work. See J.A. 2387–90 (testimony to that
effect); J.A. 4914 (order as issued in 2014). As the district court observed, “[i]t
is . . . reasonable for a jury to infer that . . . Defendants evaluated the problem and
made a conscious decision to refrain from implementing the order, either to
avoid paying Plaintiffs additional money or because the policy would force
Defendants to change the way they managed EMTs and paramedics.” Perry III,
552 F. Supp. 3d at 442.

Nor did the City ensure that FDNY leadership understood their obligation
to provide overtime compensation. The FDNY’s assistant commissioner for
budget and finance did not recall ever being told “that [the City] must pay for
work that it knows or should know is being performed even if there is no
overtime request put in for that work.” J.A. 2064–65. The same was true of the
director of payroll, timekeeping, and compliance services, J.A. 1903–05, who
instead operated on the belief that “[t]he responsibility falls on the employee” to
request overtime even if a supervisor knew that the employee was working, J.A.
1900.

Two senior FDNY supervisors testified that plaintiffs were not permitted to
request overtime for such pre-shift work as checking PPE and equipment.
Deputy Chief Norman Ortiz, a twenty-five-year veteran of the FDNY (twelve
years as a supervisor) and one of 20 deputy chiefs in the EMS Bureau, was of the
view that “there is no way for the EMTs or paramedics to ask for overtime for
checking their PPE prior to the start of their shift” and that FDNY “[does not]
allow people to request overtime for things like checking equipment prior to the
start of the shift.” J.A. 1843–44. Such time, Deputy Chief Ortiz agreed, is “not
requestable.” Id. at 1844. Lieutenant Jose Gonzalez, a supervisor of fourteen
years, likewise agreed that “EMTs and paramedics could not submit [overtime]

22
requests for checking their PPE prior to the start of their shift” or “for checking
their tech bag prior to their shift,” though he also testified that he prefers that
those tasks be performed before the shift begins. J.A. 1515. The trial testimony
reflected a corresponding understanding among EMTs and paramedics. 18 Taken
together, this testimony could easily lead a jury to conclude that the City was
reckless with respect to ensuring that EMTs were paid for their extra-shift work.

The City disclaims knowledge that plaintiffs were not being paid for at least
some extra-shift work and instead contends that it “reasonably believed that
when plaintiffs worked compensable non-shift hours, they would submit
overtime requests.” Appellants’ Br. at 55. In support, the City observes that
EMTs submitting their weekly timecards must check a box certifying “that I have
requested compensation for any time that I worked in excess of my scheduled
hours and that any time outside my scheduled hours . . . for which I have not
requested compensation[] was time not worked.” E.g., J.A. 3905; id. at 1473–74
(testimony to that effect). These certifications surely constitute evidence relevant
to the City’s knowledge of non-payment; but in light of the countervailing
evidence, the jury was not required to accept the City’s claim. Cf. Aguilar v.
Mgmt. & Training Corp., 948 F.3d 1270, 1287 (10th Cir. 2020) (rejecting
employer’s argument that it did not know about extra-shift work because
employees had “signed an acknowledgement form included with each paycheck
stating that they submitted [a request] for any overtime work conducted before

18 J.A. 1556–58 (“It was gospel. . . . There was an understanding amongst all my
coworkers that you are just not going to get paid for any . . . pre-shift work.”); J.A. 1949 (stating
his “understanding” that “[i]t wasn’t allowed” to “request overtime for . . . preshift things” like
checking his PPE and equipment or prepping a spare ambulance). Some plaintiffs explained
that they did not think they were able to request overtime for pre-shift work because CityTime’s
form did not include such tasks as a reason for overtime. See J.A. 1319–20 (“Q: Have you ever
requested overtime for tasks you performed before your tour? A: No, sir. Q: Why not? A: There
is no option in the CityTime database to create a request for that.”); see also J.A. 1810
(confirming lack of pre-set code for pre-shift tasks in CityTime).

23
or after their shift” when evidence demonstrated that it required and/or had
actual knowledge of the work).

Even accepting arguendo that the City assumed plaintiffs were requesting
overtime whenever appropriate, City officials acknowledged at trial that they
took no steps to confirm that assumption. CityTime records every minute EMTs
are at their stations, but the City never audited or otherwise monitored the
uncompensated minutes logged in CityTime to ascertain whether overtime work
was being paid. See J.A. 1473–74, 2075–76. Not unlike the defendant in Herman
who credited false assurances of compliance, the City (at best) assumed without
confirmation that overtime compensation was being claimed and paid
notwithstanding reason to suspect otherwise.

The City also argues that it could not have violated the FLSA willfully
because CityTime was designed in consultation with attorneys who advised the
City that “it could require employees to make use of a readily available
timekeeping system to request overtime.” Appellants’ Br. at 55; see J.A. 2920,
2924–25, 2934 (testimony regarding lawyers’ advice). We disagree. Attorney
approval of a practice can demonstrate that an FLSA violation was not willful, 19
but the City’s liability here does not arise solely from the attorney-approved
design of CityTime. The violation was that the City required work which it then
failed to pay for. And the testimony of Georgia Pestana demonstrates that the
City was never advised that it could refuse compensation for unreported work it
required or knew about.

19 See Mumby v. Pure Energy Servs. (USA), Inc., 636 F.3d 1266, 1270 (10th Cir. 2011)
(“Although consultation with an attorney may help prove that an employer lacked willfulness,
such a consultation is, by itself, insufficient to require a finding in favor of the employer. . . .
[A]n employer may still assert a good-faith reliance on counsel [defense] provided it shows ‘(1)
a request for advice of counsel on the legality of a proposed action, (2) full disclosure of the
relevant facts to counsel, (3) receipt of advice from counsel that the action to be taken will be
legal, and (4) reliance in good faith on counsel’s advice.’” (quoting United States v. Wenger, 427
F.3d 840, 853 (10th Cir. 2005))); accord, e.g., Foster v. City of New York, Nos. 14-cv-4142, 14-cv-
9220, 2017 WL 11591568, at *37 (S.D.N.Y. Sept. 30, 2017).

24
 In sum, the jury could have reasonably concluded that (1) there was a city-
wide policy or practice requiring extra-shift work; (2) the City knew that it was
responsible for paying its employees for extra-shift work regardless of whether
they reported it; (3) the City knew that EMTs and paramedics were not reporting
(and therefore not being paid for) some extra-shift work being performed; but (4)
the City failed for six years to prohibit unreported overtime after it saw the need
to do so; and (5) FDNY’s senior managers were neither made aware of their
obligations with respect to unreported overtime, nor were they even unanimous
in believing that overtime was available for the pre-shift work at issue. At
minimum, the jury could have found that the City failed to take reasonable steps
to confirm its assumption that it was complying with the FLSA despite having
reason to believe that many plaintiffs were not reporting their work.

A jury could easily have found that the City’s conduct was merely unwise
or unreasonable. But this jury received accurate instructions and concluded that
it amounted to recklessness. We owe proper deference to that assessment. Since
our examination of the record does not reveal evidence favoring the City “so
overwhelming that reasonable and fair minded persons could not arrive at a
verdict against it,” TriZetto, 68 F.4th at 800 (citation omitted), we affirm the
district court’s denial of the City’s Rule 50(b) motion and decline to set aside the
jury’s willfulness verdict.

IV

As to damages, the City argues that the district court, in answering a
question from the jury about the verdict sheet, effectively instructed that the
jurors need not decide an essential factual premise underlying plaintiffs’
damages calculation. This error, the City contends, requires that we set aside the
judgment and remand for a new trial on damages. The City’s argument has
force; but for the reasons explained below, we do not agree that the alleged error
necessitates retrial.

To understand the City’s argument one must first understand how
plaintiffs—and then the district court—calculated damages. CityTime records to

25
the minute how much time each EMT spends at the station; intervals logged in
CityTime outside of the compensated shift are known as “slivers.” Plaintiffs’
damages calculation was built around this readily-accessible source of historical
data, but they recognized that the CityTime slivers had to be modified in several
ways to avoid duplicative or excessive compensation.

Most obviously, some plaintiffs had already requested and received
overtime pay for certain slivers, so paid slivers were subtracted from the
damages calculation. Likewise, the FLSA only entitles plaintiffs to overtime for
employment in excess of forty hours per workweek. So even though their
collective bargaining agreement entitles plaintiffs to compensation for all extra-
shift work, see supra n.3, the damages calculation reflects pay only for hours
worked in excess of forty.

Plaintiffs also rounded the slivers to the nearest fifteen minutes: if a
plaintiff clocked in seven minutes or fewer before the shift, the sliver would
round down to zero; if a plaintiff clocked in between eight and twenty-two
minutes before the shift, the sliver would round to fifteen minutes. See J.A.
2406–09, 2467–68. (The same rules apply after the shift as well.) This rounding
rule conforms to the practice that ordinarily governs EMTs’ overtime requests
per their collective bargaining agreement. In that way, the damages award
would approximate what a plaintiff would have received if overtime had been
requested in the ordinary course.

Finally, plaintiffs capped their claims at fifteen minutes per plaintiff per
sliver: even if a plaintiff scanned out “32 minutes after the paid end time . . . . it
would be just 15 minutes of post-shift time going into the calculation.” J.A. 2409
(testimony of plaintiffs’ damages expert). This cap reflects that, if an EMT arrives
early for coffee and the newspaper before doing ten minutes of pre-shift work,
the amount of time spent at the station will overstate the time spent working.
The fifteen-minute limit obviates this potential discrepancy while ensuring
compensation for the ten minutes of work performed.

26
 The City does not contest these limits on plaintiffs’ damages calculation.
Instead, it argues that CityTime logs presence at the station whereas a given
plaintiff is entitled to compensation only for time spent working. Thus, according
to the City, plaintiffs had to prove (and the jury had to find) that each sliver in
the damages award represented 100 percent compensable work time. There are
two ways plaintiffs could make that showing: either by demonstrating that each
sliver was occupied only by compensable work, or by showing that plaintiffs
performed a work task immediately upon scanning into CityTime, thereby
triggering the “continuous workday” during which even time not spent actively
working is FLSA-compensable. 20 Plaintiffs pursued the latter method, arguing
that EMTs and paramedics would receive a pre-shift briefing from their
lieutenant—concededly a work task—immediately after scanning in, thus
triggering the continuous workday doctrine.

The jury’s consideration of damages was assisted by a special verdict sheet
offering two alternative methods of calculation. First, the jury was asked:

Did the Plaintiffs prove by a preponderance of the
evidence that the CityTime system accurately captures
the unpaid [extra]-shift work minutes at issue in this case
(i.e., up to 15 minutes of [extra]-shift work)?

J.A. 3280. If not, the jury was to estimate “[o]n average, how many unpaid
[extra]-shift minutes, per Plaintiff, per shift, should be counted as work time for
which the Plaintiffs should have been paid[.]” Id. Thus, the jury could either use
the modified CityTime slivers, or figure it out for itself. See J.A. 3260 (jury charge
evincing this understanding).

20 See Kuebel v. Black & Decker Inc., 643 F.3d 352, 359 (2d Cir. 2011) (“[P]eriods of time
between the commencement of the employee’s first principal activity and the completion of his
last principal activity on any workday must be included in the computation of hours
worked . . . .” (quoting Singh v. City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008))); accord
29 C.F.R. § 790.6(a); see also Appellants’ Br. at 43 (“[U]nder the ‘continuous workday’ doctrine,
if plaintiffs could prove that each plaintiff engaged in a ‘principal activity’ of employment
immediately after clocking in, then all the time that followed would be deemed time worked
too.”).

27
 During deliberations, the jury sought “clarification” regarding the first
option: “Is [the verdict sheet] asking whether the CityTime system
documentation of preshift work time should all be considered work time? Or is
the question asking if the preshift work time in question is accurately captured in
CityTime?” J.A. 3271–72. This question probed the ambiguity in the word
“captured”—did the jury have to find that the slivers constituted the work time or
only included it? The City advocated the former, but the district court endorsed
the latter. So instructed, the jury agreed that the work minutes were “accurately
captured” by CityTime, basing the damages calculation on the modified slivers.

The City argues that this instruction was reversible error. By telling the
jury to determine only whether the slivers included the compensable work time,
the City contends that the district court relieved plaintiffs of having to prove that
all of the time recorded in CityTime was compensable. We conclude that the
district court’s answer to the jury’s question does not fatally undermine the
damages award.

At the outset, we of course agree that an FLSA plaintiff is not entitled to
backpay for non-compensable time. And it is of course a plaintiff’s burden to
demonstrate entitlement to the relief sought. But the law of damages does not
require the impossible. When a plaintiff has demonstrated the existence of harm,
but the situation is “of such a nature as to preclude the ascertainment of the
amount of damages with certainty,” then “it would be a perversion of
fundamental principles of justice to deny all relief to the injured person, and
thereby relieve the wrongdoer from making any amend for his acts.” Story
Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931)
(emphasis added). The district court gave the jury a similar instruction here:
“[T]he law does not require plaintiffs to prove the amount of their losses with
mathematical precision, but only with as much definiteness and accuracy as the
circumstances permit.” J.A. 3258; see, e.g., Hydro Invs., Inc. v. Trafalgar Power
Inc., 227 F.3d 8, 19 (2d Cir. 2000).

This principle is familiar to FLSA litigation. The Supreme Court held in
1946 that when an employer’s records are “inaccurate or inadequate” and

28
thereby prevent an employee from “prov[ing] the precise extent of
uncompensated work,” it is enough “if [the employee] proves that he has in fact
performed work for which he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946). So long as “[t]he uncertainty lies only in the amount of damages
arising from the statutory violation,” “[i]t is enough . . . if there is a basis for a
reasonable inference as to the extent of the damages.” Id. at 688. This rule is
rooted in fundamental fairness: “[T]he employer, having received the benefits of
such work, cannot object to the payment for the work on the most accurate basis
possible under the circumstances.” Id.; see also Perma Rsch. & Dev. v. Singer
Co., 542 F.2d 111, 116 (2d Cir. 1976) (“[S]ince [the defendant] produced the
damage, it must bear the uncertainty of proof.” (citing Autowest Inc. v. Peugeot,
Inc., 434 F.2d 556, 565 (2d Cir. 1970))). The jury was instructed on this principle
as well. See J.A. 3260–61.

Here, plaintiffs had no way to prove the exact number of compensable-yet-
uncompensated minutes worked. Though many plaintiffs testified regarding
how often their “continuous workday” began right when they scanned in, they
simply could not prove that every sliver for every plaintiff was exclusively
compensable time. Nor could CityTime do this job: though neither unlawful nor
unreasonable, CityTime was “inadequate” for the task of “prov[ing] the precise
extent of uncompensated work,” Anderson, 328 U.S. at 687.

The “solution” to this problem of proof, as the Supreme Court recognized
in Anderson, “is not to penalize the employee by denying him any recovery[.]”
Id.; see also Story Parchment, 282 U.S. at 563. Speculation is of course
impermissible. Story Parchment, 282 U.S. at 563 (“[D]amages may not be
determined by mere speculation or guess.”). But so long as plaintiffs “produce[]
sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference” and “there is a basis for a reasonable inference as to
the extent of the damages,” Anderson, 328 U.S. at 687–88, the jury may rely on a
reasonable approximation.

29
 So, the fact that the jury was instructed to determine only whether the
compensable work time is included in the slivers does not invalidate the jury’s
award so long as it could have concluded that plaintiffs put forth a sufficiently
accurate approximation of the amount of their damages. Such a conclusion is
warranted here: given the obstacles to making a more precise showing, plaintiffs’
damages calculation was close enough, even without a finding that every sliver
was completely compensable.

Several considerations lend confidence to the general accuracy of plaintiffs’
damages calculation. Plaintiffs adduced evidence that it was common for EMTs
and paramedics to receive a pre-shift briefing immediately after scanning into
CityTime, thereby triggering the continuous workday doctrine. Indeed, one
plaintiff testified that he spoke to his lieutenant right after scanning in 90 percent
of the time. J.A. 1419. Every time a plaintiff received a pre-shift briefing
immediately after scanning into CityTime, the resulting sliver was entirely
compensable time, as the City agrees. See Appellants’ Br. at 42–43. So although
plaintiffs could hardly demonstrate that every plaintiff always received a pre-
shift briefing immediately after scanning in—and the City introduced evidence
tending to disprove such an absolute claim 21—there was support in the record
for the conclusion that most of the slivers were completely compensable.

Moreover, plaintiffs’ modifications to the CityTime data minimized
discrepancies between the sliver totals and the true (and unknowable) amount of
FLSA-compensable time. As explained above, plaintiffs excluded time for which
they had already been paid; they claimed compensation only for time in excess of
40 hours per week; and they rounded the slivers according to the rule which
ordinarily governs EMTs’ overtime requests. Perhaps most importantly, they
limited each claim to fifteen minutes per sliver to reflect the usual duration of the
required extra-shift work while ensuring that plaintiffs are not credited for time

21 There was testimony that plaintiffs did not always speak to the lieutenant right after
scanning in; that some plaintiffs changed into their uniform (a non-compensable activity) after
scanning in but before checking PPE or speaking to the lieutenant; and that plaintiffs sometimes
eat or socialize in the station kitchen before or after shifts.

30
spent at leisure. Once one accounts for the rounding rule and the fifteen-minute
cap, a relatively small number of slivers would be over-counted.

In summary: the City claims that the district court erred by relieving
plaintiffs of the obligation to prove that 100 percent of the claimed time was
compensable. But on the evidence in this case, such a showing would be
impossible, and to require it unreasonable. See Anderson, 328 U.S. at 687 (“The
remedial nature of this statute and the great public policy which it embodies . . .
militate against making that burden [of proving that the employee performed
uncompensated work] an impossible hurdle . . . .”). Therefore, we do not think
the verdict or the resulting judgment invalid because the jury was not instructed
to make such a finding. “[H]aving received the benefits of” plaintiffs’ required
extra-shift work, the City “cannot object to the payment for the work on the most
accurate basis possible under the circumstances.” Id. at 688. The jury could
reasonably conclude that plaintiffs’ damages calculation, given its various
limitations, was indeed the “most accurate basis possible under the
circumstances” (and certainly that it “showed the amount and extent of that
work as a matter of just and reasonable inference”). Id. at 687–88. The judgment
based on that verdict may therefore stand, and we decline to remand for a new
trial.

V

The City’s final ground for appeal is that the district court erred by
instructing the jury that the EMT-plaintiffs’ post-work equipment exchanges
were not “de minimis.” See J.A. 3254–57 (jury instruction in question). The
district court had made a corresponding ruling at summary judgment—that “the
time spent on exchanging equipment or narcotics is not de minimis” as a matter of
law, Perry I, 2018 WL 1474401, at *4 n.5—and declined the City’s request to
reconsider that ruling at trial. The City argues that the district court’s summary
judgment ruling was unsupported by the record, that it was entitled to present
this argument to the jury, and that we need to remand for a new trial.

31
 A

Plaintiffs first argue that this issue is not properly before us, contending
that a party may not appeal the denial of summary judgment once there has been
a trial on the merits. See Ortiz v. Jordan, 562 U.S. 180, 183–84 (2011); see also
Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000) (stating same rule).
But the Ortiz rule applies to a denial of summary judgment: appellate courts lack
jurisdiction over such an order because it “retains its interlocutory character as
simply a step along the route to final judgment.” Ortiz, 562 U.S. at 184. Ortiz
explains that, after a trial on the merits, a defendant may not appeal a summary
judgment denial that was based on the need for a trier of fact to resolve factual
disputes. But here, the district court took an issue away from the jury and
decided it as a matter of law, which is more closely analogous to a (partial) grant
of summary judgment.

“[E]arlier summary dispositions merge in the judgment and are
reviewable” on “appeal from a final judgment concluding the action.” Gold v.
New York Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013) (quoting West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 781 (2d Cir. 1999)); see also Dupree v.
Younger, 143 S. Ct. 1382, 1389 (2023) (recognizing the “‘general rule’ [that
interlocutory rulings] merge into the final judgment, at which point they are
reviewable on appeal” (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
712 (1996))). For instance, in Abrams v. Department of Public Safety, 764 F.3d
244 (2d Cir. 2014), the district court granted summary judgment to the defendant
on all but one claim. After going to trial on the remaining claim (and losing), the
plaintiff appealed both the jury verdict and the district court’s summary
judgment decision. 764 F.3d at 247. We had jurisdiction over the entirety of the
appeal—and we exercised it, vacating the district court’s prior partial grant of
summary judgment with respect to two claims. Id. at 257. We see nothing in
Ortiz to abrogate this longstanding rule.

More generally, the Ortiz rule is fundamentally a “preservation
requirement.” Dupree, 143 S. Ct. at 1387; accord id. at 1389 (“Ortiz holds[] that a

32
party must raise a sufficiency-of-the-evidence claim in a post-trial motion to
preserve it for appeal.”); see also Appellees’ Br. at 52 (“A motion for summary
judgment does not preserve an issue for appellate review of a final judgment
entered after trial.” (citing Ortiz, 562 U.S. at 184)). And there can be no
reasonable argument that the City has somehow forfeited or failed to preserve
the claim at issue. It asked the district court to reconsider its previous ruling in
light of the trial evidence and to send the de minimis question to the jury. J.A.
3096–101. And it argued post-trial that the district court erred by instructing the
jury consistently with its summary judgment ruling. Defs.’ Mem. of Law. in
Supp. Mot. for J. as a Matter of L. at 32–35, Perry III, 552 F. Supp. 3d 433 (S.D.N.Y.
2021) (No. 13-cv-1015), Dkt. No. 319. It is unclear what more plaintiffs would
have had the City do to preserve this issue. Cf. Omega SA v. 375 Canal, LLC, 984
F.3d 244, 252 n.6 (2d Cir. 2021) (noting that even when the Ortiz rule applies, a
party may preserve an issue for appellate review by “challeng[ing] the jury
instructions that raise the same legal question”). 22

For these reasons, we may review the district court’s ruling that the EMT-
plaintiffs’ post-shift equipment exchange was not de minimis. 23

22 None of this is to say that the City was required to take any of these steps to preserve
this issue for our review. Had the City resigned itself to its loss at summary judgment and
never revisited the issue, it could still have challenged the district court’s partial grant of
summary judgment on appeal.
23 It matters that we are reviewing the district court’s ruling at summary judgment, not
its post-trial denial of reconsideration. Plaintiffs, seemingly due to their erroneous reliance on
Ortiz, argue that the City may only challenge the latter and that we must therefore apply the
deferential abuse-of-discretion standard appropriate for denials of reconsideration. Not so. The
City challenges the district court’s summary judgment ruling directly; the fact that the City
sought reconsideration does not relegate them to challenging only the denial of that motion.
Accordingly, we review the district court’s decision at summary judgment de novo. See, e.g.,
Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 370 (2d Cir. 2004) (“We review de novo the district
court’s grant of a motion for partial summary judgment, but we only undertake to do so when,
as here, a final decision has rendered the case appealable.” (internal citation omitted)).

33
 B

On the merits, we decline to order a new trial. The City argues that one of
the EMTs’ post-shift tasks (exchanging equipment with the oncoming tour) was
de minimis. We need not decide whether the district court was correct to disagree
at summary judgment, because the City’s argument (and, derivatively, the
district court’s resolution) rests on the faulty premise that each of the plaintiffs’
post-shift tasks should be considered separately for purposes of the de minimis
inquiry. However, an employer may not disaggregate required work into
constituent tasks and then avoid FLSA liability because each piece is de minimis.
And because plaintiffs would have been entitled to a ruling as a matter of law on
a properly framed de minimis question, remand is inappropriate.

The FLSA requires compensation for all work an employer suffers or
permits; but what counts as compensable time must account for “the realities of
the industrial world.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692
(1946). As Anderson explained, “[w]hen the matter in issue concerns only a few
seconds or minutes of work beyond the scheduled working hours, such trifles
may be disregarded.” Id. “It is only when an employee is required to give up a
substantial measure of his time and effort that compensable working time is
involved”; the FLSA is not concerned with “[s]plit-second absurdities.” Id.

Whether “the matter in issue” is de minimis, however, depends on what the
matter in issue is. By singling out a specific task—EMTs’ post-shift equipment
exchange—the City implicitly argues that the “matter in issue” is each
identifiable task the plaintiffs perform before or after their shifts. Such an
approach is incompatible with the statute and with our cases.

The de minimis doctrine is a limited, judicially-created exception to the
FLSA’s fundamental rule that employees must be paid for their work. The focus
is on avoiding “[s]plit-second absurdities” and claims for “trifles.” Anderson,
328 U.S. at 692. The Department of Labor has warned against potential abuse of
the de minimis doctrine: although “insubstantial or insignificant periods of
time . . . may be disregarded,” “[a]n employer may not arbitrarily fail to count as

34
hours worked any part, however small, of the employee’s fixed or regular
working time or practically ascertainable period of time he is regularly required
to spend on duties assigned to him.” 29 C.F.R. § 785.47. So, once an employee
“is required to give up a substantial measure of his time and effort,”
“compensable working time is involved” and the claim is not de minimis.
Anderson, 328 U.S. at 692.

The City’s approach would make the de minimis doctrine a loophole that
compromises the FLSA’s mission “to guarantee[] compensation for all work or
employment engaged in by employees covered by the Act.” Tenn. Coal, Iron &
R.R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 602 (1944). “[T]o give the de
minimis rule too broad a reach would contradict congressional intent by denying
proper effect to a statute that is ‘remedial and humanitarian in purpose.’” Perez
v. Mountaire Farms, Inc., 650 F.3d 350, 378 (4th Cir. 2011) (Wilkinson, J.,
concurring) (quoting Tenn. Coal, 321 U.S. at 597).

Our view finds support in the cases. In Reich v. New York City Transit
Authority, 45 F.3d 646 (2d Cir. 1995), we considered whether transit police
officers were entitled to overtime pay for their commutes because they were
required to transport their canine partners to and from work. After holding that
only time spent actively caring for the dog—discipline, cleaning up, water stops,
etc.—qualified as compensable work, 45 F.3d at 650–52, we considered whether
that time was de minimis. In doing so, we asked whether the K-9 tasks were de
minimis taken together, not separately: the “matter in issue” was “the time spent
by the handlers engaged in active duties during the commute.” Id. at 652.
Although we assessed each task’s frequency and duration, 24 our holding was that
“dog-care duties during the commute” in total were de minimis. Id. at 652–53.

The Fourth Circuit rejected the City’s approach even more directly in Perez
v. Mountaire Farms, in which the defendant asked the court to “evaluate each

24 See 45 F.3d at 652 (noting that “the time spent disciplining the dogs was insubstantial,”
that “cases in which the dogs vomited or soiled their handlers’ cars, or required a stop to be
walked, were few and far between,” and that “[s]tops for water . . . consumed only a few
minutes”).

35
task or group of tasks separately to determine if the time period is de minimis.”
650 F.3d at 373. The Fourth Circuit declined:

In applying the de minimis rule, we consider the
aggregate amount of time for which the employees are
otherwise legally entitled to compensation. . . . Adopting
[the defendant’s] approach would undermine the
purpose of the FLSA by allowing employers to parcel
work into small groups of tasks that, when viewed
separately, always would be considered de minimis.

Id. (internal citation omitted). We entirely agree.

To be sure, when a heterogeneous group of plaintiffs bring FLSA claims
based on multifarious required tasks and the defendant argues for application of
the de minimis doctrine, it may be appropriate to subdivide the claimed work in
some way. The “rule” is one of common sense, informed by the general
principles we have set out above.

Here, although the district court’s partial grant of summary judgment was
premised on the erroneous piecemeal approach advanced by the City, remand is
unnecessary. Even under the narrowest permissible definition of the matter in
issue—EMTs’ post-shift work—plaintiffs would have been entitled to a ruling as
a matter of law that such work is not de minimis. (We draw the line there because
it is favorable to the City and in keeping with this case’s consistent pre- vs. post-
shift distinction.)

When assessing whether otherwise-compensable time should be
considered de minimis, we consider: “(1) the practical administrative difficulty of
recording additional time; (2) the size of the claim in the aggregate; and (3)
whether the claimants performed the work on a regular basis.” Singh v. City of
New York, 524 F.3d 361, 371 (2d Cir. 2008) (citing Reich, 45 F.3d at 652). The first
and third factors seem more important in this case, as they correlate with
whether the time in question “cannot as a practical administrative matter be
precisely recorded” and thus whether “the failure to count such time is due to
considerations justified by industrial realities.” 29 C.F.R. § 785.47; see also
36
Anderson, 328 U.S. at 692. While the amount of time at issue is relevant, the fact
that a task is of short duration does not necessarily render it noncompensable if
the employer could still easily record and pay for it. See 29 C.F.R. § 785.47.

Here, each factor weighs against deeming plaintiffs’ post-shift work de
minimis. First, post-shift work was very easy to record: CityTime already does,
recording to the minute each post-shift sliver an EMT or paramedic spends at the
station. Recording any and all work plaintiffs perform post-shift is easier than
accounting for the sporadic dog-care activities the Reich plaintiffs might have
needed to do; it is also far easier than tracking how much additional time
inspectors spent commuting due to a requirement that they carry work materials
to and from home, work we deemed de minimis in Singh, 524 F.3d at 370–72. See
also Peterson v. Nelnet Diversified Sols., LLC, 15 F.4th 1033, 1045 (10th Cir. 2021)
(finding that this factor favored plaintiffs because “[defendant] already monitors
the actual time that the [plaintiffs] devote to booting up their computers and
launching software [i.e., the uncompensated work at issue]”).

Second, the size of the claim favors plaintiffs. The City focuses exclusively
on how much time the claimed work takes per day, but the proper inquiry is the
amount of time claimed “in the aggregate.” Singh, 524 F.3d at 371 (emphasis
added). This of course includes the time spent per day, but as the Ninth Circuit
explained when creating this three-factor inquiry, “[c]ourts have granted relief
for claims that might have been minimal on a daily basis but, when aggregated,
amounted to a substantial claim.” Lindow v. United States, 738 F.2d 1057, 1063
(9th Cir. 1984). That makes sense: an employee made to work a few minutes late
every day for months has been “required to give up a substantial measure of his
time and effort,” Anderson, 328 U.S. at 692, just as has an employee made to
work several extra hours in a single day. “We would promote capricious and
unfair results, for example, by compensating one worker $50 for one week’s
work while denying the same relief to another worker who has earned $1 a week
for 50 weeks.” Lindow, 738 F.2d at 1063 (citing Addison v. Huron Stevedoring
Corp., 204 F.2d 88, 95 (2d Cir. 1953)). And in this case, the recovery period spans

37
years. Even a handful of minutes on most days adds up to thousands of minutes
of required post-shift work for each plaintiff. 25

Finally, for many of the reasons explained in Part II, plaintiffs’ post-shift
work occurred regularly—the tasks had to be performed every day. The City
posits a few situations in which these tasks could be performed during, rather
than after, a shift, but the question is whether the work is regular and predictable
versus sporadic and occasional. The frequency and regularity with which
plaintiffs performed post-shift work contrasts with the Reich plaintiffs’
unpredictable and irregular instances of K-9 care.

For these reasons, no jury could conclude that EMT-plaintiffs’ post-shift
work is de minimis and thus non-compensable. We will not therefore remand for
a new trial on that question.

* * *

For the reasons set forth above, we reject each of the City’s arguments. The
judgment is AFFIRMED.

25 The total number of minutes claimed by all plaintiffs has in some cases been deemed
relevant. See Lindow, 738 F.2d at 1063; Aguilar v. Mgmt. & Training Corp., 948 F.3d 1270, 1285
(10th Cir. 2020). In our view, however, a plaintiff-by-plaintiff inquiry is the better focus when
determining whether given tasks are de minimis. Whether a plaintiff sues by himself or with
hundreds of similarly situated individuals does not bear on the nature of the work in question.
Moreover, in a collective action, the number of plaintiffs could become decisive, such that this
factor would always favor plaintiffs. See Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1320
(N.D. Ala. 2008) (declining to aggregate claims of multiple plaintiffs because doing so “would
arguably render any claim for any amount of time, no matter how insubstantial as to any
particular employee on a daily basis, compensable just because many employees are involved,”
such that “even the ‘trifles’ of a few seconds or minutes described by the Supreme Court in
[Anderson] could avoid the de minimis rule” (emphases omitted)).

38