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City Workers Settle $775,000 Overtime Discrimination Suit

Department of Citywide Administrative Services agrees to pay seven Black, Hispanic and Asian workers who alleged they were put behind white ones in getting opportunities to boost pay.

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A worker heads into a city-owned warehouse no Kent Avenue in Williamsburg, Brooklyn, Sept. 22, 2020.

Ben Fractenberg/THE CITY

A city agency that was sued over allegations of racial discrimination in distribution of overtime has paid out $775,000 to settle the claims and adopted new anti-bias overtime rules aimed at reversing what had been a system that greatly favored white workers.

A group of Black, Hispanic and Asian laborers working out of the Department of Citywide Administrative Services’ massive storehouses in Brooklyn and Queens sued the agency in 2020, alleging that white workers got the lion’s share of overtime assignments while they got the scraps.

As part of the settlement in the federal case, DCAS management two weeks ago implemented a new policy in which workers who currently have collected the least amount of overtime will jump to the head of the list to receive OT going forward. 

“This protocol is not intended to guarantee that overtime is distributed on a mathematically equal basis among Laborers,” the settlement states. “It is intended to enable the equitable distribution of opportunities of overtime assignments, to the extent practicable in light of the agency’s operational needs.”

Asked by THE CITY Friday about the settlement, DCAS spokesperson Nick Benson said in an emailed response, “Equity is one of DCAS’s core values, and we are committed to having agency policies and protocols that reflect our values. This protocol for overtime distribution helps ensure that overtime is equitably distributed among all laborers employed by DCAS.” 

Between 2017 and 2019, the lawsuit alleged, mostly white supervisors habitually steered most of the agency’s opportunities for overtime to white employees — the carpenters, plumbers, electricians, masons and bricklayers who maintain city-owned properties and state courts within the five boroughs.

In the Brooklyn and Queens DCAS warehouses where these workers are assigned, 90 of 100 laborers were white, as were 11 of 12 supervisors. The lawsuit alleged an insidious form of under-the-radar bias that had real world financial consequences.

Some of these white employees were able to double their salaries and collect hefty six-figure paychecks.

Data analysis by THE CITY corroborated this pattern, with white workers at the top of the OT list with hundreds of hours of overtime, and Black, Hispanic and Asian workers at the bottom of the list with much smaller numbers.

THE CITY’s review of payroll records found this disparity had a serious impact on earnings. In 2019, for example, one white laborer racked up 1,074 hours of OT to nearly double his $74,184 base salary to $133,356, records show. By comparison, a Black laborer with exactly the same base pay picked up only 48 hours of OT and took home just $77,016.

The suit, filed by attorney J. Patrick DeLince in Manhattan federal court, charged that Black, Hispanic and Asian workers had been “systematically...denied overtime work opportunities that instead are given to white DCAS city laborers.”

The city Law Department signed off on the settlement last month. The city did not admit to wrongdoing, but agreed to pay $565,000 in damages and back pay to the seven laborers who sued, plus another $210,000 in lawyers’ fees. The total came to $775,000, or $80,000 for each of the workers.

The new protocol took effect Oct. 1 and is set to remain for three years. Under its terms, if DCAS wants to modify the procedures it would need to first notify the plaintiffs’ attorney, and if the plaintiffs disagreed with the change they could bring the dispute to Manhattan Federal Judge Lewis J. Liman, who will continue to oversee the case.

“The effectiveness of the protocol will be judged in the coming years, but we are hopeful that its implementation will change past practices and, perhaps, serve as a model for all employers when claims of disparate discrimination are made,” DeLince said.

 On Monday DeLince said the seven workers who sued would for the time being “decline to comment on the settlement while all parties work out the kinks of the protocol with the administration to make it work. Change only occurs when the efforts are collaborative.”

Dating back to the 1970s, mayors have tried to address the problem of racial imbalance in the awarding of overtime to city workers, with Abe Beame, David Dinkins and Rudy Giuliani each issuing executive orders mandating equitable distribution.

This new flip-the-list arrangement DCAS has adopted is fairly unique in New York City government, although it has been tried before, according to Robert Linn, who served as the labor commissioner during the de Blasio and Koch administrations. 

The NYPD has long used a similar system to “equalize overtime fairly among employees...so it’s not just senior people getting but the entire workforce,” he said, noting that some other unions might contend they want their senior staff to get first dibs on overtime, but the city would likely be against that approach.  

“We can’t do that because of the impact on pensions,” which are based in part on pay in the final years on a job, Linn continued. “So it really depends on the system whether this makes complete sense or doesn’t.”

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