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NFFE local settles million-dollar unpaid overtime case—bringing hopes, lessons for feds

A nearly $1 million monetary settlement—won just last month by a National Federation of Federal Employees local in Maryland over unpaid overtime—offers signs of both hope and concern to other employees suffering a similar bind at their federal workplaces.

A nearly $1 million monetary settlement—won just last month by a National Federation of Federal Employees local in Maryland over unpaid overtime—offers signs of both hope and concern to other employees suffering a similar bind at their federal workplaces. 

The union unit, NFFE-International Association of Machinists Local 178, based at the Army’s Aberdeen Proving Ground facility, settled the nearly decade-old class-action grievance, leading to a Nov. 3 issuance of checks to eligible employees. 

Union officers started the grievance 10 years ago, alleging unpaid overtime and related violations of the Fair Labor Standards Act. By 2009, the union pressed their case with several Army entities that members had been “short-changed of overtime pay and other compensation they were entitled to under the law,” according to a Dec. 6 statement released by NFFE. 

NFFE National President William R. Dougan expressed his feeling that federal employees across the government should feel cheered by the settlement.  

“While this FLSA grievance settlement is clearly a victory for employees who were directly affected, it is also a victory for federal employees across the country,” Dougan said in the statement. “[They] are less likely to be cheated out of overtime pay and other compensation because NFFE is holding federal agencies accountable when NFFE-IAM members do not receive what is earned.”

“This is really a great victory,” Dougan continued, adding, “It’s not only a victory for the union [but] more importantly, it’s a victory for all the working men and women that were cheated out of wages by the employer.”

Long journey

NFFE Local 178 President Lisa Foust led the charge in the long and lonely fight. 

“This is a case we did in concert with the national leadership—and as NFFE President Dougan said settling it was a long time coming and he was pleased the agency made things right,” Foust told FEND.

“Eight years ago we started this complaint, alleging that some of our people weren’t getting paid properly—that is, weren’t getting paid according to the rules by which [federal employees] should get paid,” Foust told FEND. “And, finally, after reviewing all the information and documents, the Army Contracting Command offered a settlement— a settlement compensating employees who had not received their overtime pay.” 

But despite her high hopes along the way for a fair outcome, Foust also acknowledged how discouraging the long fight has been. 

“The struggle for this case took years,” Foust told FEND. “Finally, after looking at all the information—and sometimes these things might just be a matter of properly reviewing all the documentation—in November of this year, we were able to get our employees their money.” 

“That’s very important to me, personally. After so long, being able to get our employees their money—something that was owed to them,” Foust said. 

Foust’s defense industry career began in quality assurance nearly two decades ago, which ultimately led to her current job in the chem-bio defense area at Aberdeen and as lead on-site union representatives on the grievance. A North Carolina native and a graduate of N.C. A&T State University in Greensboro, Foust’s several brothers served in the military. With her background, she sees her work on military projects as a “natural” fit. 

Paper chase 

Foust told FEND that the recently settled overtime case—formally known as NFFE Local 178 vs Army Contracting Command, initially filed in February 2006—represents just one piece of an ongoing, multi-faceted grievance.

“Even though the process began back in the mid-2000s, it first had to move through a tedious and slow review of documents—so it didn’t really heat up until recent years,” as Foust put it. 

“It took a really long while—with lawyers talking to lawyers—until it was time for us to get back into the case,” she said, adding, “Only in 2014 did things start to stick, when we started to get into stipulations on what we [in the union] would and would not agree to.”       

Despite how slowly the wheels of justice can turn, Foust is not bitter. 

“It takes time, this kind of case—with the [agency] gathering up information, making sure claims were legitimate, that computations were correct and that the right people were covered,” she said. “You had to make sure people were actually covered, under the right classification, and that you had enough information from them.” 

“So, as part of our case, there was a survey asking employees, ‘Did you do overtime that you weren’t compensated for?’”

“The majority of the settlement money was to cover the unpaid overtime—but there was also money for other [related] issues,” Foust explained. She listed, as examples, unpaid entitlement to credit time, unpaid entitlement to training overtime, various types of premium overtime and finally “unpaid entitlement to hours the agency ‘suffers or permits’” employees to work, which must be compensated as overtime, as specified by FLSA. Finally, many employees were incorrectly classified “exempt” from the FLSA—unentitled to overtime—when they were in fact non-exempt. 

A fair settlement

“I think the settlement was fair,” Foust told FEND. “I just hope that the agency, as a result of this, in future makes sure employees get to decide whether they want comp time or overtime.”

According to Foust, the settlement, so far, came to $975,000 in a lump sum, distributed to approximately 1500 employees. The employees covered by the settlement worked mostly in the areas of administration, contracting, human resources or security.

“There was no average payment—some get paid more, and some get less.” The payout was based on differing pay scales and other factors, she told FEND. When the settlement checks arrived, she explained, “some employees didn’t really understand the different payments—so that was another thing we had to explain.”

“I think we got more money than I hoped for—maybe up to three-quarters of what we asked for,” she said, noting, “I think that’s because we asked only for our people to be treated fairly. We weren’t trying to break anyone’s back—we were only trying to make things right.”

Origins of Aberdeen unpaid overtime problem

Why did the unpaid overtime problem occur in the first place? According to Foust, it stemmed from a combination of employees being uninformed and management being uninformative. “Employees didn’t even know, in many cases, that they were eligible for overtime—and, of course, many were never permitted to put in for it,” she told FEND.

Yet under the law and union agreements, as Foust notes, federal employees must be informed and, where applicable, permitted to choose whether they want comp time or overtime pay. “Legally the agency can never decide for people not to take overtime—and that is a main issue in this case: you, the employee, must make the decision whether to get comp time or overtime,” she explained.

Another big problem? “To [advise correctly,] the employer first has to correctly determine whether an employee is exempt or non-exempt from FLSA’s requirements—but miscategorizing happens—often as just a coding issue, but it happens,” Foust said. “And, some overtime nonpayment problems have been caused by confusion about changing laws in recent years—but also it’s just always been going on.” To illustrate that ubiquity, she mentioned other recent— sometimes better-publicized—overtime cases in the news, at the Department of Veterans Affairs and other agencies.

“I think too many managers and supervisors just do not know or keep up with the law, with the FLSA,” she said. “There are just a lot of people in authority who mistakenly believe it often just does not apply. So, the case we settled really is an educational matter. I have run into overtime problems with more than just one agency. A lot of times it’s like, ‘Oh, no problem, we don’t have to check with the labor union rep on this.’”  

Sometimes, over the years, Foust said she or a colleague would try to nudge those in charge to fix such problems—or to at least tell an eligible person they could claim overtime. But in most such instances, she believes, no one was there to help. Worse, Foust said in her opinion most who wrongly denied eligible employees overtime “knew they were doing something wrong—they just didn’t think they would get caught.”

Not there to slam 

“You know, we in the union are not there to slam you, not necessarily—we’re just there to make sure what the rules are and to make sure they are followed,” she told FEND. “We are just trying to say, ‘Let’s not always try to find a way around the rules.’”

Maybe she’s not there to slam anyone, but Foust reiterated that “one thing that constantly needs improving are the civilian personnel offices—when they make big mistakes like this, they do a real disservice not just to the agency but also labor relations.” 



Sadly, although Foust is pleased that some cheated employees have been made whole, she doesn’t think the problem or her opinion of its origin—personnel offices that spread misinformation—have been addressed. “In fact, I think they’re worse now. I don’t think they give good advice, I think they often leave out important facts, I think they provide half-truths. I think they don’t do a good job.”

In her mind, that’s the culprit: “I believe it is the civilian personnel agencies,” she said. “They aren’t proactive enough, and they don’t put out the right information strongly enough. You know, they’re supposed to be the advisor, the guide on this, to my mind.” 

She chalks the ongoing failure up to a kind of willful ignorance, “They don’t know what they don’t know, but at the same time they also don’t want to listen to anybody with a different perspective,” she told FEND. A word she comes back to often is “stubborn.” 

“In the end, we are not accusing the agencies of being ‘bad’ or filled with bad people—we have just been saying this is something that really needed to be fixed, and too often it isn’t,” she added.

Lessons learned

Foust said that the law is clear, and it should be its own reminder that the rules need to be followed. But that just isn’t how things work.

“The process of bringing any kind of case is discouraging,” she admitted. “But, in your mind, what you have to do as a union person is to remember this kind of thing is something bigger than you. You’re trying to help your employees, your members. You have to put the employees first.”

“You just can’t become discouraged,” she said. “Some things are not resolved overnight. You have to put your membership first. You have to stay focused.” 

Her advice to other leaders in her shoes? “To be a union president or leader, you have to be humble,” Foust told FEND. “You can’t be a big head—that just won’t work. You are helping working people and you are dealing with managers at the same time. Here, there are a lot of different styles, a lot of different backgrounds, involved—former military, officers and enlisted, and all kinds of people who have bonded with others.”

“It helps to keep up work-bonded relationships and an open-door policy with people—these ties helped here with managing our work and our complaint,” she said. “We kept our professional working relationships, not just during this ongoing, frustrating, complaint—but with so many other matters too: base closures, new civilian award systems, pay-for-performance, etcetera.”

“Many other things were going on for the union,” she said. “And meanwhile, we were working on this overtime grievance, among other problems, hoping to make it be solved.”

Foust told FEND she feels vindicated by the nearly $1 million settlement. “I feel good about that one agency, the ACC—because they have settled with us,” she said. “But then there are still the other agencies that have not yet settled, and the [responsible parties in them] appear to be trying in some cases to make it more personal.” 

“I encourage people to watch our video,” she said, referring to a multimedia piece her union posted on their website. “This video tells all about this first settlement—with Army Contracting Command. There are several others, four in total, that haven’t settled yet including the Edgewood Chemical and Biological Command, among others.

“These as-yet unsettled cases affect 1500, and up to 2000, additional people—somewhere in that range,” Foust said. “With their cases still to come, as the local union president, for me the settlement so far is only the beginning. I’m not done—we still have to go to the table with the others.” 

Watch the video here: https://www.youtube.com/watch?v=cLOw_1EkTJw

 

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