of the audit and provides for notification to individual officers affected and a process for pursuing waivers and appeals. The pleading also states that the audit process is continuing and assures the Court that pre-audit leave balances are being maintained in the event of contested claims. Defendant's Reply to Plaintiffs' Opposition to Reconsideration of the Preliminary Injunction at 5-8. The Court notes parenthetically that, on January 14, 1992, in response to plaintiffs' motion that was not timely opposed by the District, the Court imposed a preliminary injunction prohibiting the District from deleting FLSA compensatory time from plaintiffs' time and attendance records.
The plaintiffs have provided no evidence that contradicts Lieutenant Clark's sworn recitation of circumstances underlying the District's delay in ascertaining and paying the FLSA overtime owed, nor have they provided case law support for their liquidated damages demand other than the D'Camera and Wyland cases. See Plaintiffs' Opposition at 11-16. Affidavits provided by three individual plaintiffs serve only to question the accuracy of the audits and the accountability of the auditors (Plaintiffs' Opposition to Reconsideration of the Preliminary Injunction, Exhibits A-C). For its part, the District acknowledges its responsibilities under 29 U.S.C. 207 (o)(3)(A), as well as its failure to date to comply with those duties. Defendant's Memo at 12-13. In seeking to avoid imposition of liquidated damages for this non-compliance, the District points to the actions described by Lieutenant Clark, including the fact that some FLSA payments are being made, as well as to the unavoidability of the delays to those actions as evidence of the District's ongoing good faith efforts to fulfill its duties to its police officers.
Under 29 U.S.C. 260, an award of liquidated damages is mandatory in actions for unpaid FLSA overtime compensation unless "the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the" FLSA. While at first blush the language of this provision might indicate a liquidated damages award in this case given the District's admission that it has yet to comply with the FLSA from October 1, 1987, to date, the Court is unable to locate precedent interpreting this provision in which liquidated damages were sought or awarded for delays in bona fide efforts to comply with the Act. It is clear that liquidated damages under the FLSA are not intended to penalize employers but rather to compensate employees for delay in receiving their lawful compensation. Donovan v. United States Postal Service, 530 F. Supp. 894, 901 (D.D.C. 1981); Dalheim v. KDFW, TV, 712 F. Supp. 533, 536 (N.D. Tex. 1989). In the normal circumstance, however, such as the D'Camera and Wyland cases, the delay compensated is that during which the employer is in unreasonable or bad faith noncompliance with the Act, and not that during which it acknowledges a duty under the Act and is endeavoring to comply. See Romualdo P. Eclavea, Annotation, Liquidated Damages for Violation of Wage and Hour Provisions of Fair Labor Standards Act, 26 A.L.R. Fed. 607 (1976 & Supp. 1991). The Court attributes the apparent dearth of case law covering the latter circumstance in part to the inapplicability of FLSA Section 207(o) to public agencies such as the beleaguered Metropolitan Police until April 15, 1986. D'Camera I, 693 F. Supp. at 1213.
Given the apparent absence of a mandate to award liquidated damages under the circumstances of this case, the Court declines to do so based on Lieutenant Clark's uncontested representations regarding the unavoidable delays besetting his office and its ongoing good faith efforts to comply with the Act, including accurate assessment of the amounts of FLSA overtime and pay owed. This decision is in no way intended to preclude or limit some future finding of an FLSA violation and award of liquidated damages based on the District's eventual failure to pay its officers the wages they are owed. On the contrary, the Court directs the District to complete its audits and pay all FLSA overtime owed at the very earliest possible time.
For the reasons stated, summary judgment is entered in favor of the defendant, and the Court's January 14, 1992, preliminary injunction of the defendant is vacated.
Judge George H. Revercomb
ORDER - March 9, 1992, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it is
ORDERED that summary judgment in this case is entered in favor of the defendant. It is further
ORDERED the Court's January 14, 1992, preliminary injunction of the defendant is hereby VACATED.
Judge George H. Revercomb