United States District Court, D. Hawaii
REPORT AND RECOMMENDATIONS OF SPECIAL MASTER PURSUANT
TO FED. R. CIV. P. 53 AND L.R. 53.3.
BARRY
M. KURREN UNITED STATES MAGISTRATE JUDGE
Pursuant
to Fed.R.Civ.P. 53 and L.R. 53.3, the Special Master hereby
submits the following report and recommendations to the
Court:
1. This
a Fair Labor Standards Act (hereinafter “FLSA”)
case in under 29 U.S.C. § 201, et seq. case,
initiated by lead plaintiff Sonya Adams (hereafter the
“Collective Representative”) on December 12,
2012, and, as of June 1, 2017, joined by 317 other named
Plaintiffs employed by Defendant City and County of Honolulu
(“Defendant”) as Emergency Medical Technicians
(“EMTs”) and Paramedics (hereafter the EMTs and
Paramedics are referred to collectively as
“Plaintiffs”).
2. The
FLSA collective class is defined as all EMT's and
Paramedics who worked for Defendant City and County of
Honolulu, during the period from December 1, 2009, through
the present (the “Claims Period”), who allege
they were not paid overtime wages as required by the FLSA.
3. At
the status conference on December 8, 2015, the parties agreed
upon and the Court approved a method to advance the case to
resolution at trial or determination by motion, mediation or
other settlement. The plan was to prepare and present 10
representative bell weather cases (the “Bell
Weathers”) for the Court's consideration, from
which damages for the rest of the collective members could be
determined by extrapolation, based on weekly averages for the
Bell Weathers, applied to each non-bell weather plaintiff
(the “Non-Bell Weathers”) for each week they
worked during the Claim Period. The Court approved this
process and the parties then selected the Bell Weathers by
agreement.
4. At
the status conference held January 21, 2016, the Court
ordered Defendant to provide the time records and payroll
record information for the Bell Weathers to Plaintiffs'
counsel.
5.
Defendant agreed to produce time sheets from December 1,
2009, to the present or their electronic equivalent for the
Bell Weathers. Similarly, Defendant agreed to produce payroll
records, in the form of the C2HERPS records from February 26,
2010, to present, or their electronic equivalent. Records
equivalent to the C2HERPS would be produced documenting
regular time, shift premium, FLSA overtime and collective
bargaining agreement overtime for December 1, 2009, through
February 26, 2010. The time sheets and payroll records are
referred to collectively as the “Payroll Data.”
Production of Payroll Data for the Bell Weathers was
completed in April 2017.
6.
Pursuant to Fed.R.Civ.P. 53, L.R. 53.3 and Fed.R.Evid. 706,
on August 12, 2016, the parties agreed and the Court
appointed David M. Breshears, CPA/CFF of the forensic
accounting firm of Hemming Morse, as Special Master and
Expert (hereafter the “Special Master”) to
evaluate the Payroll Data and calculate: (1) the
“regular rate of pay” pursuant to 29 U.S.C.
§ 207(e), for each of the Bell Weathers during the
period from February 7, 2010 to October 1, 2016; (2) the
amount of asserted FLSA overtime owed for each week for each
of the Bell Weathers, if any; (3) the amount of asserted FLSA
overtime paid for each week for each of the Bell Weathers, if
any; (4) the amount of asserted FLSA overtime unpaid for each
week for each of the Bell Weathers, if any; (5) the amount of
asserted FLSA overtime paid late for each week for each of
the Bell Weathers, if any; and (6) the amount of asserted
overtime unpaid for each week for each of the Bell Weathers,
if any (collectively the “Unpaid Overtime”).
See Stipulation to Appointment of Special Master
Pursuant to Fed.R.Civ.P. 53, L.R. 53.3 and Court Experts
Pursuant to Fed.R.Evid. 706 [Filed 8/12/16] Doc. No. 78 (the
“Appointment Order”).
7.
Pursuant to the Appointment Order, the parties are bound by
the Special Master's report and recommendations regarding
the Bell Weathers pursuant to Fed. R. Civ. Pro. 53(a)(1)(A).
Id. ¶ 8.f.
8. The
Payroll Data were analyzed pursuant to the Appointment Order
and, utilizing the data provided by Defendant:
a. Pursuant to 29 U.S.C. § 207(e), the “regular
rate of pay” was calculated for each of the Bell
Weathers during the period from February 7, 2010 to October
1, 2016;
b. The amount of FLSA overtime owed for each week for each of
the Bell Weathers was calculated;
c. The amount of FLSA overtime paid for each week for each of
the Bell Weathers was calculated;
d. The amount of FLSA overtime unpaid for each week for each
of the Bell ...