Fair Labor Standards Act, FLSA (Overtime)

Summary of the Situation

In an apparent attempt to curtail overtime costs, DCMA classified all of its employees who were GS-9 and above as FLSA Exempt.  Employee positons who are FLSA Exempt do not get true time and a half overtime pay, they also are not eligible for "suffered or permitted" overtime and these employees can be forced to travel to distant training and work sites on their own time.  Several Locals filed Union Grievances during the latter part of 1998 in an attempt to get DCMA to properly evaluate the FLSA status of its employee positions and to correct them to FLSA Non-Exempt.  The union also sought to have DCMA compensate those employees who had suffered overtime losses.  In July 1999 the Locals and DCMA entered into an interim Settlement Agreement which brought a dark cloud over both parties.  DCMA offered the union hush money and to seal the deal DCMA actively assisted the union in committing a duty to provide fair representation violation. The agency agreed to give the union the equivalent of $1,400 per bargaining unit employee, provided the union would not file any other FLSA Union Grievances or Employee Grievances.  The attorney's hired by the union took 25% off the top (~$1.2 million), a few union officials and employees received a lot of money from this payout ($4,400 each) and a whole lot of employees received nothing.  This back pay was to compensate for employee overtime losses from July 1999 back three years.  Recently DCMA and these same Locals entered into a final FLSA Settlement Agreement wherein the agency agreed to change all of the GS-11 employee positions to FLSA Non-Exempt, and the union agreed that there would not be any more back pay due to the harmed employees.  DCMA is now applying the terms of this final Settlement Agreement, including its NO BACK PAY provisions, to all DCMA bargaining unit employees (to those who were not grievants and even to those who are new to the agency since July 1999).

The Details

Many many years ago, DCMA painted all its workers with the same paint brush and they made them all FLSA Exempt.  Why did the agency do this? So employees could be made to travel on weekends, their own time and to work extra hours (suffered and permitted) without being paid overtime.  When overtime was authorized and paid, it was limited to the same overtime pay that the first step of GS-10 gets.  With the average grade in the agency being a GS-11 and with some bargaining unit positions being graded as high as GS-14, this meant the agency enjoyed years of significant overtime cost savings, all at the expense of its employees.

In late 1998, several AFGE Locals within DCMA filed Union Grievances challenging the FLSA Exempt status of all bargaining unit positions.  In July 1999 DCMA cut a deal (interim settlement agreement) with the Union's representatives. DCMA and the Union drew up lists which were attached to this settlement and they showed which positions would remain FLSA Exempt, which ones would be changed to FLSA Non-Exempt and which ones were still in dispute.  In exchange for DCMA paying the Union a little over five million dollars, the Union agreed they would not file any other union or employee grievances over employee FLSA claims.  DCMA came to the approximate $5M settlement figure with the union by agreeing that each bargaining unit employee should get $1,400 as back pay plus liquidated damages for their FLSA overtime losses to date. DCMA also agreed that the Union would get the lump sum cash settlement and that the Union would distribute the money as they saw fit to only the employees who were a party to the grievance. DCMA never asked the Union to identify who these grievant employees were nor did DCMA ask how much of the money actually got to any of the employees.  This is a situation where the agency and the union took advantage of the situation.  Both the agency and the union ended up getting Unfair Labor Practice charges filed against them.  Both paid cash settlements to get their ULP charges dismissed, but in the end, tons of DCMA employees didn't get a dime of FLSA back pay and here we are into 2004 and these employees are still FLSA Exempt and they are not getting any FLSA back pay for their recent overtime losses.  After the July 1999 Settlement Agreement was signed, DCMA ran around all the other AFGE Locals and got them to sign an agreement saying they would be bound by the final outcome of the July 1999 agreement.

DCMA just announced that they have entered into a "Supplemental Settlement Agreement" with these Locals and that a group of GS-11 positions (agency wide) will be changed to FLSA Non-Exempt effective the first pay period of 2004.  As part of this settlement, apparently DCMA and the Union made a deal where none of the impacted bargaining unit employees would get any back pay to cover their overtime losses from July 1999, when the first settlement was signed, up to the first pay period of 2004.  In addition to the Locals who were a party to the original grievance, this agreement put the screws to all the other AFGE Locals who signed up to be bound by the outcome of the July 1999 agreement.  This no FLSA back pay agreement is apparently also intended by DCMA to apply to all employees, even those who were not a grievant in the original grievance and also those who have hired on after the first settlement agreement was signed and after the back pay was handed out.

DCMA is obviously intent on cheating its employees out of every overtime dime they can. When caught red handed in the act, DCMA representatives manipulate, scheme, lie and make deals with anyone they can in order to deny employees the FLSA back pay that is due them.

It is truly a sad situation when DCMA takes advantage of its workers by intentionally misidentifying their positions as FLSA Exempt in order to deny them proper time and a half overtime pay and other FLSA overtime pay entitlements.  It is really a bad situation when the Union gets in bed with DCMA and actively assists the agency in taking advantage of bargaining unit employees (totally excluding a large portion of the bargaining unit from back pay payouts along with agreeing to the arbitrary denial of recent instances justifying FLSA back pay for all DCMA employees).

NOTE:  Don't blame the Union, it has a lot of good hard working fair minded officers and representatives, blame DCMA and blame those greedy individuals that were elected or appointed to be Union Representatives and who sold out the bargaining unit employees for their own personal gain.  Join the union and vote these individuals out of office.  To recover your FLSA back pay, either contact your local union representative and tell them that you want to file an employee grievance to recover your FLSA overtime losses or contact a lawyer and take DCMA to Federal Court.  If the union fails or refuses to process your grievance, file an Unfair Labor Practice charge with your local FLRA office alleging the union's failure in its duty to provide fair and equal representation.

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