wait more than a year before receiving their wages." See Kiernan letter,
Resnick Cert. Exh. B. Plaintiffs there cited New Jersey statutes which
require the prompt payment of wages, N.J.S.A. 34:11-4.2 and 34:11-4.4,
and "reminded" the City of Police Department General Order No. 3.10
(1)(a)(5): "Department members must remember that extra-duty police
employment is considered on-duty status, and therefore all General Order
and Department regulations shall apply, and are in full effect whenever a
member is on extra-duty assignment." The City Attorney answered: "While
the City does not agree with everything in your letter, we agree that
delay in payment of the kind that you have described and that we have
confirmed is intolerable. The City is tightening up the administration of
the Extra Duty program and will be taking other steps to rectify the
present problem and prevent its recurrence." See Hamilton letter, Resnick
Cert. Exh. A. These letters, submitted by plaintiffs to demonstrate that
the City has not disputed its wrongdoing, were exchanged in July 1996.
The record is not clear as to what changes, if any, the City has
implemented since, although plaintiffs acknowledge that the City has
"started to work toward [such] ends." Pl. Br. at 10.
Initially, the City objects that the general New Jersey wage statutes
cited by plaintiffs' counsel are inapplicable to this overtime case, and
that the local ordinance requiring contractors to post a 50% bond applies
only where police officers are hired to control traffic — not to
myriad extraduty assignments. Def. Br. at 7-8. The court acknowledges the
disputes; but neither issue is sufficient to resolve this motion.
Instead, the court focuses on the City's substantive defense that it
has taken actions to investigate and ameliorate legal violations. Police
Director Michael Beltranena, Jr. certifies that he first learned of
officers' complaints of late overtime payment in November 1995, and that
he at that time spoke to the administrator of the extra-duty program.
Beltranena Cert. ¶ 8. The administrator responded that officers
frequently did not submit hourly records on time, which delayed the
City's preparation of invoices to send to vendors. Director Beltranena
also asserts that the Department took affirmative steps to ensure
payment: the City refused to send extra-duty officers to work for vendors
who were delinquent in payment, and the Law Department successfully
collected debts from some overdue accounts. Id. ¶¶ 8-9. Finally, the
Director certifies that, to the best of his knowledge, there have been no
instances of unpaid extra-duty since new staff persons assumed
administration of the program. Id.. ¶ 11.
These submissions are made to demonstrate the defendant's subjective
good faith. As said, the City bears the burden of demonstrating that it
had "an honest intention to ascertain and follow the dictates of the
Act," see Tri-County Growers, 747 F.2d at 129 — not merely that it
acted without malice. Inexplicably, the defendant does not argue that it
has ever made an attempt to determine the requirements of the FLSA,
corresponding interpretations or applicable caselaw. This circumstance
weighs against a potential argument that the City was objectively and
"reasonably entitled to believe that [its actions] did not controvert the
law." Brooks, 185 F.3d at 139 (3rd Cir. 1999). See also Keeley v. Loomis
Fargo & Co., 183 F.3d 257, 270 (3rd Cir. 1999) (commenting that under
Third Circuit precedents; "reasonable good faith is not shown when an
employer does not inquire about the law's requirements, simply follows an
industry trend of not complying with the law, or violates the law in
order to remain competitive.").
Nonetheless, the court concludes that the City has presented sufficient
evidence of its efforts to comply with the law to survive this motion.
Several issues are disputed: at trial, after resolving liability and
whether the defendant acted in both
subjective and reasonable good faith, the court will consider whether an
award of liquidated damages is warranted.
6. Statute of Limitations
The complaint in this action was filed September 2, 1997. New Brunswick
argues that because of the FLSA two-year statute of limitations, see
29 U.S.C. § 255 (a), plaintiffs' claims for delayed payment or
nonpayment that accrued before September 2, 1995 are barred. Plaintiffs
counter that the statute of limitations may be extended to three years
where a plaintiff can demonstrate defendant's "willful violation" of the
The court should allow plaintiffs the three-year statute of limitations
if defendant "knew or showed reckless disregard for the matter of whether
its conduct was prohibited" by the FLSA. Reich v. Gateway Press, Inc.,
13 F.3d 685, 702 (3rd Cir. 1994) (quoting McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988)). The
Third Circuit has authorized the extended limitations period where an
employer expressed doubts to its employees and counsel that it was not in
compliance with the law, but then chose to "hush it up." Martin v. Selker
Bros., 949 F.2d 1286 (3rd Cir. 1991).
The extent and success of the defendant's efforts to comply with the
FLSA are disputed. To repeat, the City claims that it tried to improve
its process of collecting timely payment from vendors, and that some of
the delay was due to the officers' own oversight in timely submitting
paperwork. Until such factual issues are resolved, the statute of
limitations issue remains.
7. Named Plaintiffs
Defendant objects that several officers unnamed as plaintiffs in the
complaint have nonetheless asserted claims for liquidated damages.*fn3
The City complains that the court should not consider the claims of these
non-plaintiff officers, because authorization of an open-ended claims
process would render it impossible for the City to calculate its potential
liability. Further, defendant argues, several named plaintiff officers
have failed to submit evidence supporting their demands, and summary
judgment should be granted in its favor on such officers' claims.
A FLSA lawsuit is not a typical class action subject to Fed.R.Civ.P.
23. See, e.g., U.S. v. Cook, 795 F.2d 987 (Fed. Cir. 1986). Instead, the
federal statute establishes an "opt-in" procedure, which provides a cause
of action which one or more employees may commence "for and in [sic]
behalf of himself or themselves and other employees similarly situated."
29 U.S.C. § 216 (b). Such procedure is essentially a mechanism for
permissive joinder to streamline potentially duplicative litigation. To
control the boundaries of such a so-called "collective" plaintiff class,
and to ensure that only willing plaintiffs are bound by an adverse
judgment, the law mandates: "No employee shall be a party plaintiff to
any [collective] action unless he gives his consent in writing to become
such a party and such consent is filed in the court in which such action
Though the parties have not raised the issue, it appears that not one
of the purported plaintiffs, whether named or unnamed in the complaint,
has filed such written consent form. Such omission raises a potential
statute of limitations issue, governed by 29 U.S.C. § 256:
In determining when an action is commenced for
purposes of section 255 of this title [which
establishes two- or three-year statute of limitations]
. . . an action commenced . . . under the Fair Labor
Standards Act . . . shall be considered to be
commenced on the date when the complaint is filed;
except that in the case of a collective or class
institute under the Fair Labor Standards Act . . . it
shall be considered to be commenced in the case of any
individual claimant —
(a) on the date when the complaint is filed, if he is
specifically named as a party plaintiff in the
complaint and his written consent to become a party
plaintiff is filed in such date in the court in which
the action is brought; or
(b) if such written consent was not so filed or if his
name did not so appear — on the subsequent date
on which such written consent is filed in the court in
which the action was commenced.
Until the non-named plaintiff officers file the prerequisite written
consents with this court, they are not considered joined to a collective
action and the statute of limitations on their claims is not tolled. See
29 U.S.C. § 256 (b); see also Kuhn v. Philadelphia Elec. Co.,
487 F. Supp. 974 (E.D.Pa. 1980) ("basic prerequisites" to collective
action are filing of complaint and individual written consents). And such
signed consents, if and when properly filed, will not "relate back" to
the original filing date of the complaint. Id. at 975. Should officers
not named in the complaint file consent forms in the future, the court
directs them to simultaneously submit additional evidence and/or briefing
on the statute of limitations issue, and authorizes the defendant City to
renew its motion for summary judgment on their claims.
However, the officers named in the complaint are not barred by the
absence of consent forms from proceeding with a non-collective action on
solely their own behalf. Pursuant to the introductory phrase of Section
256, the claims of the named plaintiffs commenced with the filing of the
complaint, and the statute of limitations was tolled in September 1997.
See Perella v. Colonial Transit, Inc., 148 F.R.D. 147 (W.D.Pa. 1991)
(where no claimants, named or unnamed, had filed consents to suit, and
statute of limitations had expired, court permitted solely named
plaintiff to proceed with her claim as an individual action); Vivone v.
Acme Markets, Inc., 687 F. Supp. 168 (E.D.Pa. 1988) (purpose of opt-in
requirement is to "give employers a greater measure of certainty about
whom they would be facing in court," and that goal is met when a named
plaintiff files a complaint).
8. Injunctive Relief
The last issue presently before the court is plaintiffs' application
for temporary restraints pursuant to Fed.R.Civ.P. 65, and a hearing to
request a permanent injunction. The parties addressed this issue at oral
argument. Accordingly, the court treats the request for temporary
restraints as one for a preliminary injunction. See 11A Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Fed. Pract. & Proc.: Civil 2d
§ 2951 at 256; see also Delaware Valley Transplant Program v. Coye,
678 F. Supp. 479 (D.N.J. 1988).
On May 3, 2000, while the parties' cross-motions were pending, the Town
Council of the City of New Brunswick amended the governing ordinance to
reduce the effective pay of extra-duty officers from $29.00 to $26.00
hourly.*fn4 Plaintiffs contend that such action was taken in retaliation
for their FLSA claims against the City, and quote the preamble of the
amendment: "The City is faced with the possibility of an adverse judgment
in a pending case arising out of police extra duty. The reallocation of
amounts payable to officers and the City . . . will enable the City to
recoup the amount of such a judgment and thereby protect the City's
taxpayers from the burden of such a judgment."
Further, plaintiffs submit a news article which reports that the New
Brunswick City Attorney requested that the council consider the
amendment, and that the amendment "could be dropped" if the City prevails
in this lawsuit. The officers claim that the City's actions in amending
the local ordinance to reduce their pay violates 29 U.S.C. § 215
(a)(3), which makes it unlawful:
to discharge or in any other manner discriminate
against any employee because such employee has filed
any complaint or instituted or caused to be instituted
any proceeding under or related to [the FLSA], or has
testified or is about to testify in any such
proceeding. . . .
Plaintiffs now seek a preliminary order to preclude the City from
implementing the amended ordinance, and to prevent any further
retaliatory conduct or intimidation in connection with their efforts to
enforce their flea rights.
The City responds that the amendment was motivated purely by fiscal
necessity, and that it was forced to act when it learned of plaintiffs'
claim for liquidated damages in December 1999. See Certification of City
Administrator Thomas A. Loughlin, 3rd, ¶ 7. It contends that it acted
in good faith and that it simply sought to prudently administer its
budget. Id. ¶ 10. Finally, the City argues that in January 2000,
years after this lawsuit was filed, it had granted extra-duty officers a
longsought pay raise, and that such generosity disproves plaintiffs'
allegations that it acted with retaliatory motive when it reduced their
pay rate five months later.
To secure a preliminary injunction, plaintiffs must demonstrate that:
1) they are likely to experience irreparable harm without an injunction,
and 2) they are reasonably likely to succeed on the merits. Adams v.
Freedom Forge Corp., 204 F.3d 475, 484 (3rd Cir. 2000). If relevant, the
court should also examine the likelihood of irreparable harm to the
nonmoving party and whether the injunction serves the public interest.
The court is unpersuaded by the City's explanation for its actions,
particularly in light of the City's express admissions that the amendment
was passed in response to plaintiffs' claims against it. Plaintiffs'
reference to the decision of Blanton v. City of Murfreesboro, 856 F.2d 731,
735 (6th Cir. 1988), which interpreted a similar FLSA antiretaliation
provision, is apt. There the Sixth Circuit scrutinized a municipality's
assertion of fiscal necessity where it had unilaterally reduced its
employees' base wages to offset the cost of paying them newly-mandated
benefits, and concluded:
[T]he purpose [of the antiretaliation provision] was
to prevent unilateral reductions in pay or benefits by
public employers who would otherwise take such action
"so as to negate the premium compensation mandated by
this legislation." . . . We believe this language . .
. clearly suggests that an employer has a defense to a
unilateral reduction in wage rates only if the
employer can prove that the employee wages were
reduced out of fiscal concerns not attributable to
extending the Act's coverage to municipal employees.
Public employers may not take such steps, however,
solely and directly in response to the extension of
the Act's coverage. . . .
Following that reasoning, this court has no doubt that New Brunswick
enacted the May 2000 ordinance amendment to "repay" the plaintiffs "in
kind," and that such would likely sustain liability pursuant to the
antiretaliation provision of Section 215. Such conclusion is based on the
City's admissions in the ordinance itself, and in the affidavit of the
New Brunswick City Administrator, that the pay cut was unilaterally
enacted in direct response to the possibility that plaintiffs' legal
claims will succeed.