United States District Court, D. Maryland
THE BALTIMORE CITY LODGE NO. 3 OF THE FRATERNAL ORDER OF POLICE, INC., GENE S. RYAN, PRESIDENT, Plaintiffs,
BALTIMORE POLICE DEPARTMENT, Defendants.
L. Hollander United States District Judge.
case concerns a dispute as to the regular rates of pay for
various members of the Baltimore City Police Department. The
rate of pay is significant because it is an element of the
proper calculation of overtime pay for the police officers.
Ryan, on behalf of the Baltimore City Lodge No. 3 of the
Fraternal Order of Police, Inc. ("FOP") and its
"active, retired and former Members, " as well as
Lieutenant Kenneth B. Butler, Sergeant William E. MacDonald,
and Detective Jonathan S. Glazerman, plaintiffs, filed a
collective action and request for declaratory judgment
against the Baltimore City Police Department
("BPD") and the Mayor and City Council of Baltimore
City ("City"). ECF 1. In a First Amended Complaint
(ECF 23, "Amended Complaint"), supported by seven
exhibits (ECF 20-2 to ECF 20-8),  plaintiffs allege
violations of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201, et seq.;
the Maryland Wage and Hour Law ("MWHL"), as
amended, Md. Code (2016 Repl. Vol.), §§ 3-401
et seq. of the Labor and Employment Article
("L.E."); and the Maryland Wage Payment and
Collection Law ("MWPCL"), as amended, L.E.
§§ 3-501 et seq.
Amended Complaint contains three counts. As to Count 1, the
FSLA count, plaintiffs allege four distinct violations of the
FLSA. Plaintiffs first allege that defendants have
incorrectly calculated their overtime wages by using the
wrong "hours worked" figure as the denominator in
computing the regular rate of pay. ECF 23, ¶ 56; see
also id, ¶¶ 56-60. Second, they allege that
defendants failed to include shift differential compensation
in computing plaintiffs' regular rate of pay.
Id. ¶¶ 61-65. Third, plaintiffs allege
that defendants failed to include benefit payments in
computing plaintiffs' regular rate of pay. Id.
¶¶ 66-69. Fourth, they allege that defendants
retaliated against plaintiffs for pursuing their unpaid
overtime wages. Id. ¶¶ 70-73. As noted,
the Amended Complaint also raises related claims under the
MWHL and the MWPCL. Id. ¶¶ 85, 94.
have moved to dismiss as to one of the alleged FLSA
violations. ECF 25 (the "Motion to Dismiss" or
"Motion"). In particular, defendants urge
dismissal of the claim that, in computing the regular rate of
pay for purposes of calculating overtime compensation,
defendants utilize the incorrect "hours worked"
figure as the "divisor." ECF 25 at 2. In addition,
defendants move to dismiss the state law claims in Counts II
and III. Id. at 8. Plaintiffs oppose the Motion to
Dismiss (ECF 29, "Opposition"), and defendants have
replied. ECF 32 ("Reply").
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
the Motion to Dismiss with respect to the "hours
worked" FLSA claim, but grant the Motion as to the two
claims brought under Maryland law.
individual plaintiffs are police officers currently employed
by the BPD, with long records of service. ECF 23,
¶¶ 8-10. The FOP "is a Maryland corporation
that is designated as the exclusive representative of
Baltimore Police Officers holding the ranks of police
officer, police agent, flight officer, police sergeant,
police lieutenant, and detective." Id. ¶
7. The City is a chartered Municipal Corporation under Md.
Code (2013 Repl. Vol.), §§ 4-103, 201, 304, et
seq. of the Local Government Article. Id.
¶ 13. The City "is responsible for the
operation" of the BPD. Id. According to the
suit, the City is an "employer" as defined by the
"Memoranda of Understanding" between the BPD and
the FOP are central to the litigation. ECF 23, ¶ 22.
They pertain to wages and schedules of certain categories of
Baltimore City police officers (the "Officers").
Id. The first Memorandum of Understanding ("MOU
I") covers "Unit I employees, " which include
"Police Officers, Police Agents, and Flight
Officers." Id. The second Memorandum of
Understanding ("MOU II") covers "Unit II
employees, " which include "Police Sergeants and
Police Lieutenants." Id. Both MOU I and MOU II
went into effect on July 1, 2013, and allegedly "remain
in full force and effect." Id., ¶
portions of which are docketed at ECF 20-2, specifies that
the FOP is the exclusive bargaining agent for all sergeants
and lieutenants in the BPD. ECF 20-2 at 7.Curiously, the
parties did not submit MOU I to the Court. Nevertheless, the
Amended Complaint states: "Both MOUs include the same
shift descriptions and distinguish between Non-Patrol and
Patrol Assignments." ECF 23, ¶ 23;
see Id. ¶¶ 25, 33.
11 of MOU II is titled "OVERTIME AND HOURS OF
WORK". ECF 20-2 at 8 (italicization omitted). It is
allegedly identical to language contained in MOU I. ECF 23,
¶¶ 25, 33. Article 11 of MOU II states, in part,
ECF 20-2 at 8-9:
B. Hours of Work and Overtime for Non-Patrol Assignments
1. Employees may not be required to work more than five (5)
work days in the established seven (7) day work period
(Sunday to Saturday) at straight time rates.
2. The workday for employees in non-patrol assignments shall
consist of eight (8) hours and thirty-six (36) minutes,
including roll call and a ½ -hour lunch. All time
worked in excess of eight (8) hours and thirty-six (36)
minutes or in excess of five (5) days shall be compensated at
3. Roll call will begin twenty-one (21) minutes before the
eight (8) hour tour. No additional compensation shall be paid
for work performed during the first fifteen (15) minutes
after the tour. Accordingly, employees in Non-Patrol
Assignments shall be compensated for 8.33 hours each
C. Hours of Work and Overtime for Patrol Assignments
1. The work schedule for employees in the Neighborhood Patrol
Bureau shall be four (4) days of work in a calendar workweek
(Sunday-Saturday) at 10.6 hours (10 hours and 36 minutes) per
day. All time worked in excess of ten (10) hours and
thirty-six (36) minutes or in excess of four (4) days shall
be compensated at overtime rates . . . .
2. The work period for patrol employees shall be 28 days.
* * *
5. Roll call will begin at the top of the hour for all
employees in the Neighborhood Patrol Bureau. Employees
working in the Neighborhood Patrol Bureau (4-day week) shall
be paid for 10 hours and 24 minutes (10.41 hours) each day.
* * *
C. [sic] Provisions Applicable to Both Non-Patrol and Patrol
1. All days and hours of paid leave shall be treated as days
and hours worked.
2. The Employer shall not vary or rearrange an employee's
scheduled tour of duty hours to avoid the payment of overtime
when hours of overtime are previously worked unless agreed to
at the sole option of the employee.
* * *
assert that "[s]ome time before September 2014, the FOP
brought to Defendants' attention" the claim that
"Officers were not being paid an overtime rate of one
and one-half times Officers' regular rate of pay."
ECF 23, ¶ 48. In response, defendants "corrected
its miscalculation" by paying the Officers one and
one-half times the Officers' regular rate of pay,
presumably as calculated by plaintiffs. Id., ¶
49. On October 17, 2014, the FOP filed a grievance against
defendants. Id., ¶ 50; see also ECF
20-6. The grievance stated, in part, ECF 20-6 at 1:
The FOP is filing this grievance on behalf of the bargaining
units, Unit I and II who had their overtime rate of pay
improperly calculated by the City of Baltimore (COB). The COB
agreed they had been miscalculating the overtime rate of pay,
in fact, on September 19, 2014 the COB corrected their error
and began paying FOP members the correct rate of overtime
pay. The FOP is requesting the COB to recalculate all
affected member's overtime rate of pay for the last three
year[s] prior to correcting their mistake.
to plaintiffs, in "retaliation" for the filing of
the grievance, "Defendants . . . reverted Officers'
overtime rates back to what they were before the pay period
beginning on August 21, 2014, " a rate allegedly less
than one and one-half times their regular rate of pay."
ECF 23, ¶ 51. Plaintiffs claim that by doing so,
defendants "continued their conduct of willfully and
knowingly violating Federal and State wage laws."
Id., ¶ 52.
to March 15, 2016, the FOP "again" contacted
defendants in regard to the calculation of their overtime
pay. Id., ¶ 54. Defendants responded to
plaintiffs' inquiry by email on March 15, 2016. Id;
see ECF 20-8. The email stated, id at 2:
As the payroll system was inconsistent with the MOU,
adjustments were made. The workday used in the calculation
was adjusted to be eight (8) hours and thirty-six (36)
minutes (or 8.6 hours) . . ., not the eight (8) hours and
twenty (20) minutes (or 8.33 hours) previously used. The
current paycheck reflects this recalculation of overtime
When calculating the overtime rate, one should divide the
annual salary by the annual workday hours (8.6 hours X 10
working days per pay period X 26 pay periods).
calculate the regular rate for purposes of overtime
compensation, defendants "use the 8.6 or 10.6 hour
workday as the divisor." ECF 25 at 6. Plaintiffs argue
that defendants' computation method violates the FLSA.
They agree with defendants that the "regular rate"
of pay is defined based upon the provisions of the MOU. ECF
23, ¶ 77. But, they allege that, to calculate the
regular rate of pay, the appropriate divisors are 8.33 or
10.41, because the Officers' shifts "consisted of
actual hours worked of either 8.33 or 10.41 hours." ECF
23, ¶ 56. Plaintiffs acknowledge that, "in addition
to these hours, the parties agreed that Officers may be
responsible for contributing a maximum of 11 or 15 minutes of
additional unpaid time (i.e., 8.6 or 10.6
hours)." Id., ¶ 57. But, plaintiffs claim
that "the vast majority of the time Officers do not work
this additional 11 or 15 minutes, (i.e., Officers
only work 8.33 hours or 10.41 hours)." Id
an officer's regular rate of pay, and by extension the
overtime rate of pay, is ...