BARRY M. KURREN, 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:
Collectively, these calculations are referred to herein as the "Unpaid Overtime."
9. Average Unpaid Overtime for each work week from February 7, 2010 to October 2, 2016, was calculated and applied to each of the weeks worked by each Bell Weather from December 2009 to February 6, 2010 and from October 2, 2016 to June 1, 2016, as well as to each of the weeks worked from December 2009 to June 1, 2016 by each Non-Bell Weather plaintiff who has opted into this action (the "Collective Formula"). The Unpaid Overtime and Collective Formula calculations have been provided to the parties for their analysis and discussions, and to the Court.
10. The Unpaid Overtime and Collective Formula calculations are based on the production of the records and/or data described herein.
11. Based on Defendant's payment of overtime to the Plaintiffs during the Claims Period; identified in the Unpaid Overtime and Collective Formula calculations; reviewed by the parties and the Court in numerous status, discovery and conferences with the Court; and continuing issues related to timely overtime payments, and as discussed between the parties and the Special Master, the following is recommended:
12. The parties' attorneys reported that:
13. The period for any employee to consent to opt into this action has closed. The Special Master was notified of the identities of all Plaintiffs consenting to opt in and has completed the Unpaid Overtime and Collective Formula calculations for all Plaintiffs.
14. A Third Amended Complaint has been prepared joining all 318 Plaintiffs and has been presented to the Court by stipulation for approval and subsequent filing. The Third Amended Complaint has been approved for filing and filed. CM/ECF Doc. No. 105.
15. Plaintiffs and Defendant, by their respective counsel, with the assistance of the Court and Special Master, have engaged in intensive discussions regarding this case and the claims and defenses.
16. Based on these discussions, the Special Master herein makes the following recommendations for the payment of Unpaid Overtime and Collective Formula calculations:
17. Based on the parties' discussions and resolution of their disputes regarding attorneys' fees it is recommended, without objection from the parties, that the following factors should be and have been considered for assessment of reasonable attorneys' fees: (a) the time and labor required to conclude the dispute; (b) the novelty and difficulty of the questions involved; (c) the skill requisite to perform the legal service properly; (d) the preclusion of other employment by the attorneys due to acceptance of a case of this size and duration; (e) the customary contingent fees charged by attorneys in Hawai`i; (f) that the fee here is contingent and involved significant risk; (g) time limitations imposed by lengthy delays in discovery which delayed the work of the Special Master; (h) the amount involved and the results obtained; (i) the "undesirability" of the case and the lack of local attorneys representing plaintiffs in wage-hour cases; (j) the nature and length of the professional relationship with the clients, nearly thirty-four percent (34%) of whom no longer are employed by Defendant; (k) awards in similar cases in Hawai`i; and (1) the fact that, after the instant action was filed, Defendant recognized it had not paid Plaintiffs' overtime correctly and made unannounced payments to Plaintiffs on September 13, 2013, and February 28, 2014, for both contract and FLSA overtime. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied sub nom Perkins v. Screen Extras Guild, Inc., 425 U.S. 951 (1976).
18. Based on the parties' discussions and resolution of their disputes regarding reasonable attorneys' fees, it is recommended that attorneys' fees in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) and general excise tax on that amount in the amount of Eleven Thousand Seven Hundred-Eighty Dollars ($11,780.00) should be paid to Plaintiffs' attorneys by Defendant.
19. Based on the parties' discussions and resolution of their disputes regarding litigation costs, it is recommended that Plaintiffs' litigation costs in the amount of Four Thousand Dollars ($4,000.00) should be paid to Plaintiffs' attorneys by Defendant.
20. Based on the parties' discussions and inability to resolve their disputes regarding litigation costs, payment of "incentive pay" to the collective class representative, Sonya Adams, if any, it is recommended that the "incentive pay" shall be determined by the Court upon motion to be filed within 14 days of submission of this Report and Recommendations.
21. Exhibit 3 to these Recommendations, lists each Plaintiff indicating the gross Payment amount that was determined as set forth above, which shall be disbursed by Defendant as follows:
22. All payments and disbursements to be made pursuant to these Recommendations shall be made not later than August 1, 2017.
23. Pursuant to Fed. R. Civ. P. 53(f)(2), a party may file objections or statement of no objections this Report and Recommendations. The Special Master is advised by the parties that no such objections to these Recommendations will be filed by any party.
24. The Special Master recognizes and notes that Defendant has taken steps to correct, address, and minimize FLSA miscalculations and/or inadvertent/human error and/or oversights in its payroll practices and calculations. While such inadvertent/human error and/or oversights and/or late (or untimely) input of time by employees may occur from time to time, the Special Master recognizes Defendant has made good faith efforts, including the adoption of an electronic time recording system, to comply with the requirements under the FLSA as a consequence of this litigation.
The Court having been fully advised in the premises and finding good cause appearing therefor, the foregoing Report and Recommendations are hereby APPROVED AND SO ORDERED:
The Honorable Barry M. Kurren, United States Magistrate Judge in the United States District Court for the District of Hawai`i, has reviewed and approved a model to be used to calculate the amount of unpaid overtime and liquidated damages under the Fair Labor Standards Act, 29 U.S.C. 29 U.S.C. 201, et seq. ("FLSA"), in Adams v. City and County of Honolulu, 12-cv-00667 BMK.
You are receiving this notice because you have been identified as a current or former employee of the City and County of Honolulu Emergency Services Department, Emergency Medical Services Division ("EMS Employees"), during the period from December 2009 through the present. The EMS Employees who may be eligible to collect unpaid overtime and liquidated damages, if any, include Emergency Medical Technicians, Paramedics and Mobile Intensive Care Technicians. Carl M. Varady represents the EMS Employees and will represent your interests if you choose to opt in to this case.
Please be advised of the following:
This case was filed on December 12, 2012, to obtain payment of unpaid overtime wages and liquidated damages for EMS Employees. On August 12, 2016, Honorable Barry M. Kurren, United States Magistrate Judge in the United States District Court for the District of Hawai`i, approved the stipulation between the EMS Employees and the City and County that appointed David M. Breshears, CPA/CFF, of the forensic accounting firm of Hemming Morse as a Special Master, in this matter for purposes of calculating unpaid overtime and liquidated damages, if any, for the 10 sample EMS Employees in this case.
Judge Kurren's order stated that the Special Master was authorized to determine the: (1) regular rates of pay; (2) unpaid overtime; (3) late paid overtime for each of the 10 sample EMS Employees from December 2009 through the present; and (4) any other data necessary to make findings and inform the Court of the unpaid and/or late paid overtime for the 10 sample EMS Employees during that period, and liquidated damages, if any.
The Special Master's calculations have been completed. The Special Master has calculated the amounts of unpaid and liquidated damages owed to the 10 sample EMS Employees. The Special Master has calculated the amounts owed to all EMS Employees based on the average amount owed to the 10 sample EMS employees for each week of work during the period from December 2009 through the present. That amount was then applied to the other EMS Employees for each week they worked during the same period. The Special Master has calculated the overtime and liquidated damages that would be awarded to you, using this model
You are receiving this Notice to inform you that the Court will consider and rule on the Special Master's damages calculations and arguments asserted by the City and County against your claims.
This Notice also is to address questions you may have, including:
To have your claim for unpaid overtime and liquidated damages, if any, presented in further legal proceedings,
You do not have to do anything to opt out of the lawsuit. Your claims will not be included if you do not submit the Opt In form. If you do not Opt In, you may:
Even if you do not opt in, however, you be bound by the rulings of the Court up to this point.
If you have any questions about the lawsuit you may contact:
I, (name)________________________________, of the City & County of Honolulu, State of Hawai`i, hereby consent to become a party to the litigation to be initiated against the City and County of Honolulu. The litigation will be filed in the United States District Court for the District of Hawai`i, and will allege that the City and County of Honolulu has not complied with the Fair Labor Standards Act (FLSA) and Hawai`i Revised Statutes Chapter 80. The lawsuit allegeS that the City & County of Honolulu failed to properly compensate its employees for overtime hours worked and failed to make timely payments to its employees for overtime hours worked. I am, or was, employed by the City & County of Honolulu Emergency Medical Services Department during some or all of the period from three years prior to the filing of the lawsuit to the date of signing of this consent. This action has been brought on my behalf and on the behalf of similarly situated employees of the City & County of Honolulu pursuant to Section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)). Unpaid overtime compensation, liquidated damages, attorneys' fees, costs, and other relief are sought in the action.
