Loudoun :
Fairfax Underground
Welcome to Fairfax Underground, a project site designed to improve communication among residents of Fairfax County, VA. Feel free to post anything Northern Virginia residents would find interesting.
Welcome to Fairfax Underground, a project site designed to improve communication among residents of Fairfax County, VA. Feel free to post anything Northern Virginia residents would find interesting.
Deputies Sue County For Overtime, Flex Scheduling
Posted by:
Loudoun's News
()
Date: November 12, 2011 04:49PM
Deputies Sue County For Overtime, Flex Scheduling
http://www.leesburg2day.com/news/article_04232f30-04d3-11e1-95e9-001cc4c002e0.html
A group of Loudoun deputies, including some who work at the Adult Detention Center, and who are members of the Police Benevolent Association, have filed suit against the county, the Loudoun County Sheriff's Office and Sheriff Stephen O. Simpson specifically seeking damages for overtime they say was not paid to jail employees and for the forced flexing of deputies' schedules to reduce budget costs.
While the suit comes just seven days before the county election, the attorneys involved in the case claim neither the lawsuit nor its timing is politically motivated.
Standing before the Loudoun Circuit Courthouse Tuesday just before filing the suit, attorneys Caleb Kershner and Tim Bosson said the deputies are seeking money they are owed and their rights under the Virginia State Code and the federal employment act.
"The sheriff and the county have been short-changing their deputies for years," Kershner said.
Six deputies are named as plaintiffs in the suit, three of them identified as ADC employees, and "numerous other law enforcement employees of the County of Loudoun" who could be added in the future.
Neither the county government nor Simpson had been served, or seen the lawsuit, as of press time.
The lawsuit seeks $500,000 in the unpaid overtime to ADC deputies and $100,000 for the overtime not paid because of flexible scheduling.
Overtime concerns are not new to the county when it comes to its emergency personnel. In 2010, after learning that April that it was not in compliance with a piece of General Assembly legislation-namely that firefighters, EMTs and deputies were not being paid for time worked over their scheduled hours, but less than the overtime threshold in the federal Fair Labor Standards Act-the Board of Supervisors approved retroactive pay for overtime back to March 2008, as far as retroactive pay was allowed.
According to the new lawsuit, "the County paid all deputies, other than ADC Deputies, the overtime pay due for all hours worked over 80." ADC deputies, the lawsuit states, were determined by the county to have worked 86 hours every two weeks, but they were only granted two hours of overtime, not six.
The lawsuit maintains that while the FLSA requires deputies be paid time-and-a-half for any time worked over 86 hours, the ADC deputies were only scheduled on an 80-hour work period and therefore should be paid overtime for every hour above that. The lawsuit also notes the PBA, a professional association that provides legal services and advocates changes to improve the quality of work life for people employed in all aspects of law enforcement, urged the county to pay the deputies overtime as far back as 2008, and it refused. That, the lawsuit states, shows the county's "wrongful overtime treatment" was "willful and in bad faith."
The PBA is made up of more than 300 employees of the Loudoun County Sheriff's Office, Leesburg Police Department and Fire Marshal's Office, among others.
In January, the Board of Supervisors, following the advice of a consultant, changed the deputies two-week work period to an 84-hour schedule. The schedule was increased as a way to limit the amount of overtime being paid to deputies that had to fill vacancies and conduct other agency business. The schedule for field deputies prior to that action was 80.5 hours every two weeks, while investigators, court security and other personnel were on an 80-hour work period. All additional duties were paid at time-and-a-half, and a consultant was obtained in 2009 to look at the high cost of overtime in the sheriff's office and fire-rescue department. Then, in 2010, the noncompliance was discovered.
The Fair Labor Standards Act places the threshold for time-and-a-half pay at 86 hours. The 2001 legislation applied time-and-a-half to all hours worked over 80.
The additional hours in the 84-hour schedule were to be "flexed" over responsibilities not covered in their day-to-day shifts, for activities such as court appearances, car maintenance and additional meetings.
The lawsuit states the Loudoun County Sheriff's Office "has created a policy of deducting leave hours that the Deputy took during the workweek or slashing Deputies regularly scheduled work hours for the rest of the work week." The suit also maintains that the adjusted schedule is a "sham" because it was created as a way to avoid following the employment act.
The suit states that flexible scheduling is a violation of Virginia law and a breach of contract, violating the county's own employee handbook, noting that supervisors can adjust employees' schedules provided proper notice is given.
"Contrary to this requirement, the Sheriff's Office has routinely informed Plaintiff Deputies the night before or the morning they show up to work that their hours are being cut for the day because of flexible scheduling," the lawsuit states.
Simpson said any decisions like that are made based on manpower overlap, and only if a shift is fully covered, if a deputy is working a lot of overtime hours that period. Those decisions were made long before the overtime study to keep overtime as low as possible and still have all positions covered, Simpson said.
Outside the courthouse Tuesday, Kershner said his time as an Assistant Commonwealth's Attorney gave him the opportunity to hear the frustration from deputies in the courthouse.
"If they have to do extra duties it is flexed out on their next shift, they come in late or leave early, or they get credit to their leave, not the pay they deserve," he said. He said it was all an attempt to decrease the sheriff's office budget. "To cut the budget on the backs of the people who protect our streets is unfair, and it is unlawful under the employment act."
Simpson opposed the implementation of an 84-hour workweek as a standard, but ultimately approved it, agreeing it is "more reflective to the number of hours a majority of deputies are currently required to work," according to a memo included as an exhibit to the lawsuit. Simpson said the county really wanted to see every hour deputies worked included in regular schedules, and 84 hours was a compromise. He also opposed the hiring of a consultant to see if overtime could be limited, stating repeatedly that overtime was the cost of doing business in budget times that did not allow for additional deputies to be hired.
"I was against this from the very beginning. It is ironic that I am being named in the lawsuit as though this is my fault," he said Tuesday. "I don't sign paychecks for the county. I don't determine how people are going to be paid. Yes, we have policies, but our policies are based on what we are allowed to do through the county system."
Kershner said the issue was brought to the attorneys' attention in January by the Virginia PBA. The PBA recently endorsed one of Simpson's challengers, Republican Michael Chapman for the sheriff's post.
"We are the ones calling the shots on the filing of the lawsuit, the timing of it," he said. "Not the PBA." He also added that the PBA itself is not party to the lawsuit, only some of its individual members.
Sean Dikeman, senior vice president of the Loudoun chapter of PBA, said there is no political motivation behind the suit, and the endorsement is done by a separate political action committee. "These lawsuits don't have any political backing to them," Dikeman said. "We strongly believe that both of these issues we would have been able to work through them and this could have been avoided. But when we try to reach out to the sheriff of our agency reach out and do not get a response, what option do we have?"
Simpson, who did not seek the PBA endorsement because many of the sheriff's office employees are members, said he believes the group has become a "political grandstanding organization" by people who are seeking to unionize the sheriff's office, something he says he opposes.
Since January, Kershner said the PBA members have been working to come to a resolution with the county. The decision to file a lawsuit only came when it became clear the county would not address the overtime pay for ADC deputies, he added. The attorneys have met with the County Attorney's Office on the matter, but not Simpson.
http://www.leesburg2day.com/news/article_04232f30-04d3-11e1-95e9-001cc4c002e0.html
A group of Loudoun deputies, including some who work at the Adult Detention Center, and who are members of the Police Benevolent Association, have filed suit against the county, the Loudoun County Sheriff's Office and Sheriff Stephen O. Simpson specifically seeking damages for overtime they say was not paid to jail employees and for the forced flexing of deputies' schedules to reduce budget costs.
While the suit comes just seven days before the county election, the attorneys involved in the case claim neither the lawsuit nor its timing is politically motivated.
Standing before the Loudoun Circuit Courthouse Tuesday just before filing the suit, attorneys Caleb Kershner and Tim Bosson said the deputies are seeking money they are owed and their rights under the Virginia State Code and the federal employment act.
"The sheriff and the county have been short-changing their deputies for years," Kershner said.
Six deputies are named as plaintiffs in the suit, three of them identified as ADC employees, and "numerous other law enforcement employees of the County of Loudoun" who could be added in the future.
Neither the county government nor Simpson had been served, or seen the lawsuit, as of press time.
The lawsuit seeks $500,000 in the unpaid overtime to ADC deputies and $100,000 for the overtime not paid because of flexible scheduling.
Overtime concerns are not new to the county when it comes to its emergency personnel. In 2010, after learning that April that it was not in compliance with a piece of General Assembly legislation-namely that firefighters, EMTs and deputies were not being paid for time worked over their scheduled hours, but less than the overtime threshold in the federal Fair Labor Standards Act-the Board of Supervisors approved retroactive pay for overtime back to March 2008, as far as retroactive pay was allowed.
According to the new lawsuit, "the County paid all deputies, other than ADC Deputies, the overtime pay due for all hours worked over 80." ADC deputies, the lawsuit states, were determined by the county to have worked 86 hours every two weeks, but they were only granted two hours of overtime, not six.
The lawsuit maintains that while the FLSA requires deputies be paid time-and-a-half for any time worked over 86 hours, the ADC deputies were only scheduled on an 80-hour work period and therefore should be paid overtime for every hour above that. The lawsuit also notes the PBA, a professional association that provides legal services and advocates changes to improve the quality of work life for people employed in all aspects of law enforcement, urged the county to pay the deputies overtime as far back as 2008, and it refused. That, the lawsuit states, shows the county's "wrongful overtime treatment" was "willful and in bad faith."
The PBA is made up of more than 300 employees of the Loudoun County Sheriff's Office, Leesburg Police Department and Fire Marshal's Office, among others.
In January, the Board of Supervisors, following the advice of a consultant, changed the deputies two-week work period to an 84-hour schedule. The schedule was increased as a way to limit the amount of overtime being paid to deputies that had to fill vacancies and conduct other agency business. The schedule for field deputies prior to that action was 80.5 hours every two weeks, while investigators, court security and other personnel were on an 80-hour work period. All additional duties were paid at time-and-a-half, and a consultant was obtained in 2009 to look at the high cost of overtime in the sheriff's office and fire-rescue department. Then, in 2010, the noncompliance was discovered.
The Fair Labor Standards Act places the threshold for time-and-a-half pay at 86 hours. The 2001 legislation applied time-and-a-half to all hours worked over 80.
The additional hours in the 84-hour schedule were to be "flexed" over responsibilities not covered in their day-to-day shifts, for activities such as court appearances, car maintenance and additional meetings.
The lawsuit states the Loudoun County Sheriff's Office "has created a policy of deducting leave hours that the Deputy took during the workweek or slashing Deputies regularly scheduled work hours for the rest of the work week." The suit also maintains that the adjusted schedule is a "sham" because it was created as a way to avoid following the employment act.
The suit states that flexible scheduling is a violation of Virginia law and a breach of contract, violating the county's own employee handbook, noting that supervisors can adjust employees' schedules provided proper notice is given.
"Contrary to this requirement, the Sheriff's Office has routinely informed Plaintiff Deputies the night before or the morning they show up to work that their hours are being cut for the day because of flexible scheduling," the lawsuit states.
Simpson said any decisions like that are made based on manpower overlap, and only if a shift is fully covered, if a deputy is working a lot of overtime hours that period. Those decisions were made long before the overtime study to keep overtime as low as possible and still have all positions covered, Simpson said.
Outside the courthouse Tuesday, Kershner said his time as an Assistant Commonwealth's Attorney gave him the opportunity to hear the frustration from deputies in the courthouse.
"If they have to do extra duties it is flexed out on their next shift, they come in late or leave early, or they get credit to their leave, not the pay they deserve," he said. He said it was all an attempt to decrease the sheriff's office budget. "To cut the budget on the backs of the people who protect our streets is unfair, and it is unlawful under the employment act."
Simpson opposed the implementation of an 84-hour workweek as a standard, but ultimately approved it, agreeing it is "more reflective to the number of hours a majority of deputies are currently required to work," according to a memo included as an exhibit to the lawsuit. Simpson said the county really wanted to see every hour deputies worked included in regular schedules, and 84 hours was a compromise. He also opposed the hiring of a consultant to see if overtime could be limited, stating repeatedly that overtime was the cost of doing business in budget times that did not allow for additional deputies to be hired.
"I was against this from the very beginning. It is ironic that I am being named in the lawsuit as though this is my fault," he said Tuesday. "I don't sign paychecks for the county. I don't determine how people are going to be paid. Yes, we have policies, but our policies are based on what we are allowed to do through the county system."
Kershner said the issue was brought to the attorneys' attention in January by the Virginia PBA. The PBA recently endorsed one of Simpson's challengers, Republican Michael Chapman for the sheriff's post.
"We are the ones calling the shots on the filing of the lawsuit, the timing of it," he said. "Not the PBA." He also added that the PBA itself is not party to the lawsuit, only some of its individual members.
Sean Dikeman, senior vice president of the Loudoun chapter of PBA, said there is no political motivation behind the suit, and the endorsement is done by a separate political action committee. "These lawsuits don't have any political backing to them," Dikeman said. "We strongly believe that both of these issues we would have been able to work through them and this could have been avoided. But when we try to reach out to the sheriff of our agency reach out and do not get a response, what option do we have?"
Simpson, who did not seek the PBA endorsement because many of the sheriff's office employees are members, said he believes the group has become a "political grandstanding organization" by people who are seeking to unionize the sheriff's office, something he says he opposes.
Since January, Kershner said the PBA members have been working to come to a resolution with the county. The decision to file a lawsuit only came when it became clear the county would not address the overtime pay for ADC deputies, he added. The attorneys have met with the County Attorney's Office on the matter, but not Simpson.