New York City Wrongfully Excludes Differentials from Workers’ Overtime Rates, Lawsuit Alleges

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A New York Department of Transportation employee claims that the city has underpaid certain workers by failing to include differential pay in its calculation of their time-and-a-half overtime rates.

According to the seven-page case, New York City has intentionally left out differentials such as pro-rated differentials, longevity pay, night-shift differentials, daily assignment differentials and other bonus payments as part of employees’ regular pay rates when calculating their overtime rates. The case alleges this practice has resulted in workers being underpaid whenever they’ve worked more than 40 hours in a week during which they earned these extra wages.

The lawsuit alleges New York City has violated the Fair Labor Standards Act (FLSA), which requires certain employees to be paid one and one-half times their regular pay rate—including differentials—for every hour worked in excess of 40 in a week.

The plaintiff is a New York resident who says he has worked for the New York City Department of Transportation since 2007 and not received proper overtime payments at one-and-a-half times his regular pay rate in weeks when he was paid differentials.

For example, during a July 2021 pay period, the plaintiff earned $133.21 for “hourly night shift differential” and $42.83 for “hourly night shift differential for sat, sun & hol” in addition to his hourly wages, according to the complaint. Although the plaintiff worked two hours of overtime during this pay period, his overtime rate was miscalculated and did not include the differentials as part of his regular pay rate, the lawsuit says. The complaint estimates that the plaintiff is owed $6.27 per overtime hour for that pay period.

The lawsuit alleges that New York City has willfully applied the same policy and practice of miscalculating overtime rates for all of its employees since March 2019 and has thus “repeatedly” violated federal law.

The plaintiff looks to represent anyone who worked overtime for New York City as a non-exempt employee and received any type of differential payment at any time since March 2019 at agencies including the Department of Parks and Recreation and the Department of Transportation.

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