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December 07, 2010
Is It a Crime to Join a Class Action Lawsuit?

Back in 2004, some 4,300 current and former New York City police sergeants filed suit under the Fair Labor Standards Act (FLSA), charging they had been systematically underpaid for overtime. The first step, given the number of plaintiffs, was to identify limited numbers of “test plaintiffs” representing certain job categories. They would be the only ones to testify. What NYPD did after they testified is the crux of this case.

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What happened. In January 2006, when test plaintiffs were chosen, NYPD’s attorneys and the department’s Internal Affairs Bureau (IAB) agreed that IAB officials would begin collecting documents as soon as plaintiffs’ testimony had begun, gathering command logs, memo books, activity reports, overtime slips, and requests for leave from all test plaintiffs. Those plaintiffs expressed great concern to their union, because IAB did not normally conduct such collections, which would usually be done by others. Some saw NYPD as retaliating.

One sergeant was scheduled to testify about 7 weeks after the document collection. An IAB officer appeared to observe him. Some months later, when the plaintiff was ready to retire, he was told his retirement must be deferred while the department “investigated” him. He believed, rightly, that he was being probed regarding his testimony. Meanwhile, NYPD had asked a federal district court to dismiss the entire lawsuit on the basis that sergeants are exempt from overtime. The court ruled partly for NYPD, identifying some sergeants who qualified for the executive exemption. But it ruled in favor of many of the other plaintiffs.

Next, NYPD ordered one of the plaintiffs to undergo a type of interview reserved for allegations of serious misconduct or corruption. He was questioned for 4 hours, entirely about the testimony he had given regarding the FLSA lawsuit. The next day, the plaintiffs asked the district court to restrain NYPD from its retaliatory activities. A temporary restraining order was issued, and it was converted in March 2008 to a preliminary injunction. NYPD appealed the injunction, but the district court upheld it in June 2009. Defendants again appealed, this time to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges agreed with plaintiffs and the district court that NYPD’s actions were designed to have a “chilling effect”—to encourage sergeants to drop out of the lawsuit. Mullins et al. v. City of New York and NYPD, U.S. Court of Appeals for the 2nd Circuit, No. 08-1839-cv (11/16/10).

Point to remember: Most courts find that if it looks and smells like retaliation, it probably is.

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