City did not violate FLSA by requiring employees to carry official records while commuting between home and work

City did not violate FLSA by requiring employees to carry official records while commuting between home and work
Rajkumar Singh, et al., v The City of New York, CA2, Docket 06-2969-cv, decided April 29, 2008

Rajkumar Singh, Thomas S. Matthews, Vivek N. Patil, Trushant Shah, Faramarz Robeny and Fredo Joseph are fire alarm inspectors employed by New York City. They sued the City, contending that because the City requires them to carry inspection documents while commuting to and from their homes, they were entitled to compensation in accordance with the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., for “working while commuting.”

The Circuit Court of Appeals rejected their claims finding that under the circumstances, in this instance “carrying inspection documents while commuting is not work within the meaning of the FLSA.” To constitute “work” within the meaning of the FLSA, the carrying of the documents would have had to result in increases in the duration of an individual’s commute. Here, said the court, the record shows that the inspectors’ increase in commuting time is de minimis as a matter of law and thus none of the fire alarm inspectors’ commuting time is compensable under the FLSA. The court also noted that although the City charges the owners or operators of inspected premises $210 per hour for each inspection performed during regular business hours, it does not charge the owners or operators for time spent by inspectors traveling to or from inspection sites.

According to the ruling, “the mere carrying of inspection documents without any other active employment-related responsibilities while commuting is not work under the FLSA, except to the extent that it increases the duration of the commute.”

In addition, the Circuit Court held that Singh’s First Amendment retaliation claim is without merit because his speech was not a matter of public concern and was made only in his capacity as an employee and not as a citizen.

Singh alleged that the City violated his First Amendment rights when it suspended him without pay for thirty days in alleged retaliation for voicing concerns regarding the City’s policy as well as its policy of retaining inspectors as provisional employees for longer than the nine months permitted by Section 65 of the Civil Service Law.

According to the decision, Singh had been suspended as a result of his reporting to “his first” fire inspection sites of the day without the necessary inspection documents and after being warned that such action constituted a “dereliction of duty” and cautioned that any repeat behavior would result in administrative charges. Further, Singh persisted in indicating that his workday began and ended at home despite being directed to discontinue this practice by a Deputy Chief Fire Inspector and that his failure to do so could lead to administrative and criminal charges.

Addressing Singh’s claim that the City violated his First Amendment rights when it suspended him without pay for thirty days in alleged retaliation for voicing concerns regarding the City’s policy of requiring inspectors to carry inspection documents to and from work and its policy of retaining inspectors in “provisional” status for longer than nine months, the Circuit Court said that to establish a First Amendment retaliation claim, Singh had to show that (1) his speech addressed a matter of public concern; (2) he suffered an adverse employment action; and (3) a causal connection between the speech and the adverse employment action. The Circuit Court said that it agreed with the lower court that Singh’s speech was not a matter of public concern as it “cannot be fairly considered as relating to any matter of political, social, or other concern to the community.”

In contrast, “when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision.” In any event, whether the employee’s speech is a matter of public concern is question of law that is determined by the “content, form and context of a given statement, as revealed by the whole record.”

The court decided that in this instance Singh’s speech was not a matter of public concern, relating only to internal employment policies of the City and made only in his capacity as an employee and not as a citizen. Thus, said the court, Singh’s effort to turn his personal grievance into a matter of public concern by raising the issue of “provisional” employees – an issue that he asserts did not concern him as a “permanent” employee – is unavailing.

The full text of the decision is posted on the Internet at 06-2969-cv