STEWART et al v. PEMBERTON TOWNSHIP et al

Filing 229

MEMORANDUM. Signed by Judge Harvey Bartle (EDPA), III on 3/29/2022. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THOMAS STEWART, II, et al.
v.
PEMBERTON TOWNSHIP

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CIVIL ACTION

NO. 14-6810

MEMORANDUM
Bartle, J.

March 29, 2022
Plaintiffs are thirty patrol officers and sergeants in

the police department of Pemberton Township in Burlington
County, New Jersey. 1

They seek damages from the Township 2 for

unpaid overtime under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 203 et seq.

They allege that between October 30,

2011, and November 8, 2013, they carried out pre- and post-shift
work, such as setting up their patrol cars and gathering their
equipment, for which they were not compensated. 3

The court held

1.
Plaintiff patrol officers are Thomas Stewart II, Shannon
Fallen, Robert A. Shinn, Jason Luis, Arthur H. Shinn, John Hall,
Daniel Matthews, Anthony Luster, Wayne Davis, Vincent Cestare,
Jason M. Gant, Michael C. Brewer, Bruce J. Phillips, Sean Smith,
Shannon LaGraff, Thomas Lucas, Andre Byrd, Perry J. Doyle,
Robert Hood, Kenneth M. Volk, John P. Laffan, Shaun Myers,
Michael Bennett, David Sawyer, Charles Bennett, Stephen Price,
and Justin Kreig. Plaintiff patrol sergeants are David Geibel
Jr., Michael Geibel, and Peter DeLaGarza. Two patrol officers,
Edward N. White and Jonathan R. Glass, were dismissed as
plaintiffs pursuant to the parties’ pretrial stipulation.
2.
Plaintiffs named as defendants Pemberton Township and David
Patriarca, the Township’s Mayor. Patriarca has been dismissed
from the suit pursuant to the parties’ stipulation.
3.
In their fourth amended complaint, plaintiffs also alleged
that the Township unlawfully retaliated against them after they

a four-day nonjury trial.

The following are the court’s

findings of fact and conclusions of law.
I
Under the FLSA, an employer must compensate its
employees at a rate of one and one-half times their salary for
overtime work.

A public agency must award overtime pay to law

enforcement officers for any work they complete in excess of
eighty-six hours over a two-week period.

See 29 U.S.C.

§ 209(a)(1), (k)(1).
FLSA plaintiffs bear the burden of proving they
performed unpaid work.

E.g., Alers v. City of Philadelphia,

919 F. Supp. 2d 528, 558 (E.D. Pa. 2013).

However, an employer

need only pay its employees for work it “suffers or permits.”
Id. at 559 (quoting Holzapfel v. Town of Newburgh, 145 F.3d 516,
524 (2d Cir. 1998)).

Thus, the plaintiffs must demonstrate that

their employer had actual or constructive knowledge that
uncompensated work was taking place.

Id. at 558.

If the

plaintiffs offer evidence of uncompensated overtime work and the
employer’s actual or constructive awareness, the burden of proof
shifts to the employer to provide evidence of the exact time the

filed their initial complaint. The court granted the motion of
the Township for summary judgment as to that claim. See Stewart
v. Pemberton Twp., Civ. A. No. 14-6810, 2020 WL 5040602, at *6–8
(D.N.J. Aug. 26, 2020).
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plaintiffs worked or evidence that otherwise discredits the
plaintiffs’ evidence.

Id.
II

Plaintiffs comprise twenty-seven patrol officers and
three patrol sergeants who served in the Pemberton Township
Police Department between 2011 and 2013.

At all relevant times,

plaintiffs worked during one of two shifts, either from 7 A.M.
to 7 P.M. or from 7 P.M. to 7 A.M.

The police department

headquarters exists in a wing of a single-story building that
houses each of the Township’s municipal departments.

Each

patrol officer and sergeant parks in the same adjoining parking
lot and reports to duty in the municipal building.
Plaintiffs claim, as noted above, that between
October 30, 2011, and November 8, 2013, they were required to
perform pre-shift and post-shift work for which they were not
compensated.

Plaintiff patrol officers assert that they carried

out twenty minutes of work before their shifts to set up their
patrol cars and equipment and ten minutes of work after their
shifts to put the equipment away and resolve administrative
matters.

Plaintiff patrol sergeants claim to have worked

twenty-five minutes before and fifteen minutes after their
shifts.

Plaintiffs seek compensation for this off-the-clock

work to the extent it exceeded eighty-six hours of work in a
two-week period.
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The police department has in the past adopted policies
that required officers to prepare their vehicle’s dashboard
camera, known as the mobile vision recording (“MVR”) system,
before the start of their shifts.

First, in 2000, the Township

adopted the following policy:
Prior to the start of each shift the officer
assigned to patrol duties and in a vehicle
equipped with MVR equipment shall determine
whether the MVR equipment is working
satisfactorily and shall bring any problems
to the attention of the shift supervisor.
The Township updated the policy in 2006:
Prior to the start of each shift the officer
assigned to patrol duties and in a vehicle
equipped with Arbitrator video recording
system shall determine whether the MVR
equipment is working satisfactorily and
shall bring any problems to the attention of
the shift supervisor. The functional check
shall include both audio and video
components.
Since 2010, however, the Township has maintained a
timeclock policy that prohibits its employees from completing
any work in the seven-minute windows before and after their
shifts:
Employees are required to ‘clock in’ and
‘clock out’ at their scheduled times.
As a convenience to employees, employees may
clock in up to 7 minutes prior to the start
of their scheduled work time. However,
employees shall not engage in any work
during that time. In such cases, the
employee will not be compensated for the
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time on the clock until the start of the
employee's scheduled work time.
Likewise, employees may clock out up to
7 minutes after the end of their scheduled
work time. However, employees shall not
engage in any work during the time after the
end of their shift. In such cases, the
employee will not be compensated for the
time on the clock after the end of the
employee's scheduled work time.
In both cases, an employee will be
compensated for work performed before and
after the employee's scheduled work time
only for actual work (and subject to the
rounding policy). Actual work may only be
performed if overtime has been expressly
approved by the employee's supervisor in
accordance with overtime approval
procedures.
The precipitating event in this action occurred on
October 31, 2013, at around 6:50 A.M. when Pemberton Township
Police Department patrol officer Robert Hood, a plaintiff here,
slipped and fell on the steps of the municipal building while
walking out to set up his vehicle.
ankle.

He suffered a sprained

The Township investigated his injury and determined that

for worker’s compensation purposes it had not taken place while
he was working since his shift did not begin until 7 A.M.
That determination triggered a nasty battle between
the Township and the police union.

Following Hood’s injury, the

Township Administrator, Dennis Gonzalez, made inquiries of the
police department to determine how and why Hood was performing
pre-shift work.

The department conducted an internal affairs
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investigation into whether officers violated Township policy by
completing pre- and post-shift work.

The results of the

investigation were inconclusive.
All this culminated in the plaintiffs filing their
initial complaint against the Township in this court on October
30, 2014.

A week later, David Jantas, the chief of police at

the time, issued a “special order” which reiterated that police
personnel should not complete off-the-clock work:
No member shall perform, and no Sergeant O/C
shall permit, any member to perform any
actual work, or function that may be
considered and/or construed to be work
related prior to the precise starting time
of any shift or after the precise ending
time of any shift.
The court held a four-day bench trial.

Plaintiffs

offered testimony from three representative plaintiffs:

two

patrol officers, Hood and Shaun Myers, and one patrol sergeant,
David Geibel.

Plaintiffs also offered testimony from Scott

Bogdanowicz, a lieutenant in the patrol division during the
relevant events of this action.

In addition, they read into

evidence the deposition of Robert Lewandowski, the Township’s
chief of police from 2007 through 2010, as he was not available
to testify.

The Township called former and current members of

its administration as witnesses.

They elicited testimony from

Jantas; David Patriarca, the Township’s mayor; Robert King, the
Township’s chief of police at the time of trial; and two former
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Township business administrators, Christopher Vaz and David
Gonzalez.
During trial, the parties entered a stipulation on the
calculation of damages.

The purpose was to streamline the

admission of wage history into evidence.

The agreement read,

“in the event the Court finds liability against [the Township]
for unpaid overtime . . . damages are $26,308.67,” which is a
figure based on plaintiffs’ wage calculation expert’s report.
That amount includes all damages sustained between October 30,
2011, and November 8, 2013.
As discussed below, plaintiffs must show in addition
to liability that the Township willfully violated the FLSA to
the extent they seek to recover damages for the period between
October 30, 2011, and October 29, 2012, which is three years
prior to the filing of the initial complaint.

Likewise,

plaintiffs must prove the Township’s willfulness in order to
collect liquidated damages, which are not included in the above
figure.

The stipulation still permits the Township to argue

that it was not liable, or alternatively that it did not act
willfully so that plaintiffs would not be entitled to liquidated
damages.

Likewise, the stipulation permits the Township to

argue that the statute of limitations bars damages for the
period between October 30, 2011, and October 29, 2012.

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III
Plaintiffs first rely on the testimony of their
representative plaintiffs--two patrol officers and one patrol
sergeant--to demonstrate that patrol officers and patrol
sergeants engaged in off-the-clock work.

Our Court of Appeals

has endorsed this use of “testimony and evidence of
representative employees” to “establish prima facie proof of a
pattern and practice of FLSA violations.”

E.g., Hughes v. Twp.

of Franklin, Civ. A. No. 13-3761, 2015 WL 9462965, at *5 (D.N.J.
Dec. 23, 2015) (quoting Martin v. Selker Bros., 949 F.2d 1286,
1298 (3d Cir. 1991)).
Hood and Myers testified that as patrol officers, they
completed pre-shift work.

During that period, they retrieved

long guns from an armory inside the police department
headquarters and placed them into their patrol cars.

They also

inspected their vehicles’ exteriors for damage, checked the
front passenger compartments for any property left by the last
officers to use the cars, inspected the rear passenger
compartments for any contraband left by suspects transported in
the cars, and confirmed that their patrol cars contained road
flares and emergency oxygen equipment.

After preparing their

patrol cars, they tested their MVR systems, following a
fourteen-point checklist, to ensure they were working properly.

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Once all those steps were completed, they would proceed inside
to attend the police department’s 7 A.M. or 7 P.M. roll call.
Hood conceded on cross-examination that preparing his
car only took him five to seven minutes and that the MVR system
set-up took another five.

On the other hand, Myers insisted

that completing all pre-shift tasks took “a totality” of twenty
minutes each day.

Neither Hood nor Myers spoke of performing

any post-shift work.
Plaintiffs also rely on the testimony of Scott
Bogdanowicz, who was a lieutenant with the Township’s police
department during the relevant events in this action.
Bogdanowicz estimated that three-quarters of the patrol officers
completed uncompensated pre-shift work.

He personally witnessed

patrol officers carrying out pre-shift work on several
occasions.

Such pre-shift work would “at best” take ten minutes

to complete.

Setting up the MVR took five minutes.

The other

tasks, including loading equipment and inspecting vehicles, took
five minutes as well.
In addition, plaintiffs cite the testimony of several
witnesses to show that patrol officers were trained to complete
this work.

Hood and Myers each testified that as patrol

officers they were obligated under implied orders to carry out
pre- and post-shift work.

Hood likened his off-the-clock work

to his experience in the military in which “there are both
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specific and implied orders to get missions accomplished.”

Hood

and Myers both said their training officers taught them that
they needed to prepare their patrol cars, set up their MVRs, and
gather their equipment before attending lineup at the start of
their shifts.

Lewandowski, the Township’s police chief from

2007 through 2010, corroborated in his deposition testimony that
it was “cultural knowledge” that patrol officers were expected
to work before their shifts began so that they would be ready to
leave the station immediately after lineup.

He said that

pre-shift work “was instilled in me and I instilled [it] in my
people.”

Bogdanowicz confirmed that before the 2010 timeclock

policy was enacted, it was understood that officers were
required to complete certain tasks before shift lineup.

When he

was a young officer, his field training officer taught him to
ready his car and equipment before the 7 A.M. lineup.

In turn,

before he became a lieutenant, he trained officers the same way.
By the time the 2010 timeclock policy was enacted, he had been
promoted to lieutenant and instructed officers not to work
off-the-clock.

However, the patrol officers did so anyway.

As for patrol sergeants, plaintiffs called David
Geibel.

He stated that his pre-shift work included speaking

with the prior shift’s patrol sergeant about “turnover from
pertinent calls,” downed equipment, and other relevant matters
carrying over from the prior shift.
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He inspected the station’s

jail cells to ensure “there’s no contraband, make sure toilets,
lights, the locking mechanisms were working at the time, make
sure the camera’s recording, . . . fill out a log sheet, [and]
do a check of the shackles and the belts that were for the
prisoners.”
vehicle.

He then performed the MVR check and inspected his

All told, he arrived between forty and forty-five

minutes before each shift to complete the above tasks.
Geibel recounted that he also completed post-shift
work.

After his shift he returned his equipment--his long gun,

his cellphone, the keys to his squad car--to the appropriate
places within police headquarters.

He ensured “any incomplete

reports were submitted in the incomplete bins.”

He also stayed

until all patrol officers “were back off the road and accounted
for.”

He completed those tasks in “anywhere from five to ten

minutes.”
Plaintiffs point to the deposition testimony of
Lewandowski to confirm that sergeants performed pre- and
post-shift work.

As a patrol sergeant in the 1990s, he arrived

for his shifts early to speak with the outgoing sergeant about
the events of the prior shift and any outstanding matters that
he needed to address.

After his shifts ended, he completed some

“police housekeeping stuff.”

This included putting his patrol

officers’ long guns away in the armory, reviewing their reports,
and signing any necessary forms.
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Bogdanowicz recounted his experience as a patrol
sergeant before he was promoted to lieutenant in 2007.
arrived for his shift “between 15 to 20 minutes early.”

He
During

that time he shared information with the prior shift’s
supervisor and sometimes prepared equipment for the patrol
officers working during his shift.

He acknowledged, however,

that by 2011 the department had obtained a computer system that
allowed sergeants to share information between shifts more
quickly.

He noted that it was his “choice” to arrive early and

that he was never ordered to do so.
Plaintiffs maintain the trial testimony confirms that
the Township had actual knowledge of this off-the-clock work
taking place.

Plaintiffs contend Jantas as police chief was

aware that patrol officers were working before their shifts.
Bogdanowicz testified that he informed Jantas of the pre-shift
work taking place in multiple conversations.

Bogdanowicz also

said that Jantas had arrived early to witness the pre-shift work
taking place during the morning shift change at least once.
Plaintiffs further argue that the court may impute the knowledge
of Jantas to the Township.
The Township challenges the plaintiffs’ evidence.

It

primarily relies on the testimony of David Jantas, the chief of
police during the relevant events of this suit.

Like

Lewandowski, Jantas rose through the ranks of the Township’s
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police department from patrol officer, to sergeant, to
lieutenant, until he was appointed chief of police in 2010.
Jantas stated that in all those capacities, he never completed
pre- or post-shift work nor witnessed it taking place.

As to

the patrol sergeants, the Township cites Bogdanowicz’s testimony
that patrol sergeants rarely completed post-shift work.
According to Bogdanowicz, if he had to stay past his shift’s
end, such as when “there were prisoners in the station” or he
was “typing up complaints,” he received overtime compensation.
The Township also maintains that even if patrol
officers and sergeants did complete off-the-clock work, the
Township lacked knowledge that it was taking place.

Jantas

maintained that he was unaware of the work taking place.

Mayor

Patriarca and David Gonzalez, the Township’s business
administrator during the relevant events in question, also
testified that they were unaware of any off-the-clock work
taking place until Hood’s injury.

The Township contends that

only the knowledge of Mayor Patriarca can be imputed to the
Township for FLSA purposes because he is the “appropriate
authority” responsible for establishing workplace regulations
within the police department under New Jersey law.

See N.J.

Stat. Ann. § 40A:14-118.
The Township further argues that the 2010 timeclock
policy specifically prohibited patrol officers and sergeants
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from completing off-the-clock work.

Accordingly, it asserts

that if any such work took place, it was in direct disobedience
of that policy.

It cites the testimony of Hood and Myers that

neither was directly ordered by a supervising officer to
complete the pre-shift work.

It also notes that Hood, Myers,

Geibel, Bogdanowicz, and Jantas all agreed that no officer had
been disciplined for not completing pre-shift work.
The court finds that plaintiffs have established by a
preponderance of the evidence that patrol officers and patrol
sergeants carried out uncompensated pre-shift work during the
period between October 30, 2011 and November 8, 2013.

Hood and

Myers credibly testified that patrol officers completed at least
ten minutes of pre-shift work.

Bogdanowicz likewise confirmed

that patrol officers completed at least ten minutes of pre-shift
work.

The court finds Bogdanowicz credible and unbiased and

places great weight on his testimony.
Furthermore, the evidence establishes that this
pre-shift work was expected of patrol officers.
this expectation was explicit:

In some cases,

Hood, Myers, and Bogdanowicz all

testified that they were taught as patrol officer trainees to
set up their cars and equipment before starting their shifts.
Lewandowski, in his deposition testimony, confirmed that the
expectation was “cultural knowledge” that was “instilled” in the
Township’s police trainees.

While the court acknowledges that
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the performance of pre-shift work is inconsistent with the
Township’s 2010 timeclock policy, it nonetheless occurred.
As for patrol sergeants, Geibel credibly testified to
completing at least some pre-shift work.

There is some

discrepancy between Geibel’s claims of forty to forty-five
minutes of pre-shift work and Bogdanowicz’s testimony that when
Bogdanowicz was a sergeant, he arrived only fifteen to twenty
minutes early.

Still, the Township has offered no evidence to

rebut Geibel’s testimony that he completed pre-shift work nor
any reason to outright discredit it.
Significantly, none of the Township’s witnesses
testified that pre-shift work was not taking place.

To be sure,

Jantas said that they never witnessed any pre-shift work taking
place nor completed any off-the-clock work either as a patrol
officer or a patrol sergeant.

The testimony of Mayor Patriarca,

who served in the Township’s police department in both
capacities before assuming office, was in accord.

However,

neither testified that no such work was taking place between
2011 and 2013, the relevant period.
On the other hand, plaintiffs have not established
that patrol officers or patrol sergeants engaged in any
post-shift work.

Hood claimed to have completed five minutes of

work after returning his car to the police department lot at the
end of each shift.

However, Hood acknowledged that he typically
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arrived at the station between ten and fifteen minutes before
7:00 A.M. or 7 P.M.

Thus, based on his own testimony, his work

after returning his car did not extend past the end of his
shift.

Bogdanowicz’s testimony corroborates that no patrol

officers or sergeants completed uncompensated post-shift work.
He said most officers would return to the station around 6:40
and were always able to finish unloading their equipment and
filing their reports before clocking out at 7:00.

He explained

that by “7:00 the cars were flying out of the station,
absolutely, to go home.”

Bogdanowicz also confirmed that patrol

sergeants did not complete uncompensated post-shift work.

He

credibly testified that patrol sergeants rarely had to stay past
shift’s end, and when they did, they received overtime
compensation.

The court will credit the testimony of

Bogdanowicz to the extent it conflicts with the testimony of
Geibel and Lewandowski.
As for the Township’s awareness of the pre-shift work,
the evidence demonstrates that the Township had actual knowledge
of the pre-shift work taking place.

The court finds that

Jantas, the police chief, was aware of the pre-shift work taking
place during the relevant period.

Bogdanowicz testified that he

directly communicated with Jantas about the pre-shift work.

All

the pre-shift work took place at the Township municipal building
and its parking lot, a stone’s throw from Jantas’s office.
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Indeed, Bogdanowicz said that Jantas arrived early at least one
morning to witness it taking place.

The court credits the

testimony of Bogdanowicz over that of Jantas.
Furthermore, Jantas’s awareness of off-the-clock work
is imputed to the Township.

The Township cites no authority for

the proposition that knowledge of police personnel overtime can
only be imputed to a municipality from the individual acting as
the “appropriate authority” pursuant to N.J. Stat. Ann.
§ 40A:14-118.

It would be an insurmountable hurdle to permit

plaintiffs to impute knowledge to the Township only from the
Township’s mayor or business administrator, particularly since
those individuals disclaimed any involvement in the police
department’s day-to-day workplace operations.

Rather, in cases

concerning the underreporting of work hours, it is widely
accepted that courts may impute the knowledge of an employee’s
supervisor to that of the employer.

Bailey v. TitleMax of

Georgia, Inc., 776 F.3d 797, 802 (11th Cir. 2015); Brennan v.
Gen. Motors Acceptance Corp., 482 F.2d 825, 828 (5th Cir. 1973);
Stanislaw v. Erie Indem. Co., Civ. A. No. 07-1078, 2012 WL
517332, at *7–8 (W.D. Pa. Feb. 15, 2012).

Consistent with the

foregoing authority, it seems eminently reasonable to expect the
knowledge of a police chief to be imputed to the Township.
In sum, the court finds that patrol officers and
patrol sergeants completed at least ten minutes of pre-shift
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work but no post-shift work.

The Township had actual knowledge

that this work was taking place between October 30, 2011, and
November 8, 2013.
IV
Even if off-the-clock work was occurring, the Township
argues it is not liable because plaintiffs’ claims are barred by
the so-called de minimis doctrine.

That doctrine bars recovery

of “compensation for trivial calculable quantities of work.”
De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 374 (3d Cir.
2007).

It applies “only where there are uncertain and

indefinite periods of time involved of a few seconds or minutes
duration, and where the failure to count such time is due to
considerations justified by industrial realities.”
§ 785.47.

29 C.F.R.

In considering whether otherwise compensable time is

de minimis, the court considers three factors:

“(1) the

practical administrative difficulty of recording the additional
time; (2) the aggregate amount of compensable time; and (3) the
regularity of the additional work.”

De Asencio, 500 F.3d at 374

(citing Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir.
1984)).

This is necessarily a fact-specific inquiry.

E.g.,

Garcia v. Vertical Screen, Inc., Civ. A. No. 18-4718, 2022 WL
125906, at *6 (E.D. Pa. Jan. 13, 2022).

Because the de minimis

doctrine is a defense, the Township bears the burden of proving
its application here.

Walsh v. E. Penn Mfg. Co., Civ. A.
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No. 18-1194, 2021 WL 4215503, at *2 (E.D. Pa. Sept. 16, 2021)
(citing Kellar v. Summit Seating Inc., 664 F.3d 169, 176
(7th Cir. 2011)). 4
While the evidence at trial establishes that
plaintiffs did less uncompensated overtime work than they
alleged in their complaint, the Township has not shown that any
of the De Asencio factors compel a finding that plaintiffs’
overtime work was de minimis.

In its post-trial brief, the

Township focuses only on the amount of time plaintiffs claim
they worked.

However, it has not cited any cases holding that

ten-minute periods of work are too short to be compensable under
the FLSA.

Rather, courts have consistently declined to find

that periods of ten minutes are per se de minimis.

See, e.g.,

Gonzalez v. Bustleton Servs., Inc., Civ. A. No. 08-4703, 2010 WL
1813487, at *10–11 (E.D. Pa. Mar. 5, 2010); Perez v. Mountaire
Farms, Inc., 650 F.3d 350, 373–74 (4th Cir. 2011); Reich v.
Monfort, Inc., 144 F.3d 1329, 1334 (10th Cir. 1998).

When

4.
At the motion-to-dismiss stage in this case, Judge Robert
B. Kugler declined to dismiss plaintiffs’ FLSA claim on
de minimis grounds. Stewart v. Pemberton Twp., Civ. A. No.
14-6810, 2016 WL 3466103, at *3 (D.N.J. June 23, 2016). That
ruling was based on plaintiffs’ allegations in their Third
Amended Complaint that patrol officers worked twenty minutes
before and ten minutes after their shifts and that patrol
sergeants worked twenty-five minutes before and fifteen minutes
after their shifts. The court explained that based on those
allegations, plaintiffs’ uncompensated time was “neither ‘small
in the aggregate’ nor ‘irregularly performed.’” Id.
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considered in the “aggregate,” as this court must, the amount of
uncompensated time is even more substantial.
500 F.3d at 374.

De Asencio,

Furthermore, the other two factors under the

De Asencio test undercut the Township’s de minimis defense.

The

Township cites no “industrial realities” that obstructed its
administrative ability to count plaintiffs’ time.

See id.

Plaintiffs have also demonstrated that they completed pre-shift
work with the requisite regularity to defeat the de minimis
doctrine.
V
An FLSA plaintiff is entitled to a greater recovery
when the employer’s failure to compensate was willful.

First,

when an employer willfully violates the FLSA, the plaintiff may
also recover liquidated damages in the amount of the unpaid
wages, although the court may in its discretion abate some or
all of the liquidated damages.

29 U.S.C. § 216(b).

Second,

although the statute of limitations for an FLSA claim is usually
two years, an employer that willfully violates the FLSA is
liable for a third year of unpaid overtime wages.
§ 255(a).

29 U.S.C.

To demonstrate willfulness, the plaintiff has the

burden to show that the employer either knew or “showed reckless
disregard for the matter of whether” its conduct violated the
FLSA.

Stone v. Troy Constr., LLC, 935 F.3d 141, 148 (3d Cir.

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2019) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133 (1988)).
A separate but related concept to willfulness is an
employer’s defense of good faith.

A district court has

discretion to abate some or all liquidated damages if the
employer acted in “good faith” and held “reasonable grounds for
believing that his act or omission was not a violation of the
[FLSA].”

29 U.S.C. § 260.

establishing this defense.

The employer has the burden of
It must prove both subjectively that

it had an “honest intention to ascertain and follow the dictates
of the [FLSA]” and objectively that it “act[ed] as a reasonably
prudent man would have under the same circumstances.”

Brooks v.

Vill. of Ridgefield Park, 185 F.3d 130, 137 (3d Cir. 1999)
(citations and internal quotations omitted).
Plaintiffs contend the Township willfully violated the
FLSA because Jantas as police chief was aware that patrol
officers were working before their shifts.

As discussed above,

the court agrees that he was aware that pre-shift work was
taking place, and his awareness is imputed to the Township.
Accordingly, the court finds that plaintiffs have met their
burden of demonstrating that the Township willfully violated the
FLSA.
The Township argues that plaintiffs are not entitled
to liquidated damages because it abided by the collective
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bargaining agreement it had struck with its police force and
thus acted in good faith.

It cites several cases that it

believes stand for the proposition that “a municipality acts in
good faith . . . if it retains experienced counsel, negotiates a
CBA that is approved by those experienced counsel, and complies
with that CBA.”
The Township first relies on our Court of Appeals’s
decision in Brooks v. Village of Ridgefield Park, 185 F.3d 130
(3d Cir. 1999).
paying overtime.

That case centered on a village’s method of
Pursuant to a collective bargaining agreement

term that the village employees’ union had requested, the
village agreed to pay overtime compensation to its employees on
a deferred schedule.

Although both parties had consulted with

and relied upon labor counsel in negotiating the agreement, the
overtime payment schedule nonetheless violated an FLSA
interpretive bulletin.

A group of police officers sued over the

overtime payment schedule.

The district court granted summary

judgment for the plaintiff police officers, holding that the
village had violated the FLSA and had not acted in good faith.
In so holding, the district court cited evidence that the
village had not taken any affirmative steps to ensure that the
payment schedule comported with the FLSA.
Our Court of Appeals reversed the district court’s
finding that the village had not acted in good faith.
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The Court

noted that the village was not accused of violating the FLSA’s
“mandatory core requirements” dealing with “minimum wage, hour,
and record” keeping.

Id. at 140.

It also emphasized that the

village’s employees’ union had consented to the overtime payment
schedule and noted that the deferred payment schedule “served
the convenience of [its] workers.”

Id.

Thus, the Court held

that although the record reflected the village had not
affirmatively investigated whether the payment schedule was
lawful, the district court still could have found that the
village acted reasonably and in good faith and remanded the case
for further factfinding on that issue.
Brooks is distinguishable from plaintiffs’ suit in two
key respects.

First, the Township violated a “core” component

of the FLSA by not paying plaintiffs fully for the work they
performed.

Second, plaintiffs are not seeking to repudiate an

agreed-upon collective bargaining agreement term as the
plaintiffs did in Brooks.

Patrol officers in the Pemberton

Township Police Department did not agree to forego overtime
payment that the FLSA requires.

The Township argues that it

acted reasonably because the police union failed to object to
the pre-shift work when it negotiated with the Township and
assented to their collective bargaining agreement.
argument is without merit.

This

The Township could not have

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reasonably believed that the practice of pre-shift work without
compensation complies with the FLSA.
None of the other cases the Township cites supports
its position that its abiding by a collective bargaining
agreement is evidence of good faith.

In Rudy v. City of Lowell,

the city violated the FLSA by excluding certain regular work
time when calculating overtime payments.
263 (D. Mass. 2011).

777 F. Supp. 2d 255,

Featsent v. City of Youngstown also

involved a city’s miscalculating work time for the purposes of
determining overtime payments.
1995).

70 F.3d 900, 906-07 (6th Cir.

The cities in both cases adopted policies that violated

the FLSA but only after reasonably relying on the advice of
counsel.
here.

The Township has exhibited no reasonable reliance

In Cahill v. City of New Brunswick, the court found that

the city’s efforts to investigate its unlawful delay in overtime
payment created a triable issue of fact with respect to whether
the city had acted in good faith.
(D.N.J. 2000).

99 F. Supp. 2d 464, 477

Here, despite Jantas’s knowledge of the

pre-shift work taking place, there is no evidence that any
Township official took any steps to prevent the pre-shift work,
of which it was aware, until after Hood’s injury.
VI
For the aforementioned reasons, the court finds that
patrol officers completed at least ten minutes of pre-shift work
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during the period between October 30, 2011 and November 8, 2013.
The Township, through its police chief at the time David Jantas,
had actual knowledge of that work.

Thus, the Township is liable

for a willful violation of the FLSA.
As mentioned above, the parties have stipulated that
if the court “finds liability” against the Township, “damages
are $26,308.67.”

This figure includes damages during the third

year back from the complaint, between October 30, 2011, and
October 29, 2021, to which the plaintiffs are entitled based on
the court’s finding of willfulness.
liquidated damages.

It does not include

The court will award liquidated damages and

double the damages owed to plaintiffs.

Thus, the court will

enter a judgment of $52,617.34 so that each plaintiff will
receive double the amount set forth in the parties’ stipulation.
The parties shall submit a form of judgment in
conformity with the court’s findings of fact and conclusions of
law.

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