HR Strange But True!
May 13, 2009

An arbitrator has ruled that an employer violated the overtime rules of the Fair Labor Standards Act. Now, the strange part: The employer is the Equal Employment Opportunity Commission.

The case involved nonexempt EEOC investigators, mediators, and paralegals who said they worked more than 40 hours in a workweek. The employees argued that the agency violated the FLSA and a collective bargaining agreement by failing to pay them overtime pay.

The agency argued that it had fulfilled its obligation by giving the employees compensatory time. Compensatory time allows employees to take paid time off instead of being paid the overtime premium. Only public-sector employers can offer compensatory time. Federal regulations specifically prohibit federal agencies from requiring that an employee be compensated for overtime work with compensatory time off.

However, the arbitrator said the EEOC had effectively given the employees no choice.

“I conclude that the agency's actions, in violation of the FLSA, and in a manner reasonably consistent from office to office throughout the country, failed to provide employees with the choice to have their excess work hours, to the extent they may qualify, compensated by overtime pay rather than by the sole alternative offered, that of compensatory time,” the arbitrator wrote.

The arbitrator also ruled the EEOC's failure to offer the option of overtime pay wasn't inadvertent.

“While agency policies from headquarters surely purported to set forth a framework for proper action under the FLSA, it was equally clear that, in virtually every agency office here represented, express policies were in place that were in derogation of that framework,” the arbitrator wrote. “This action was not inadvertent, and, both by documents and by supervisory instructions, conveyed to employees that an FLSA entitlement to overtime pay, if excess hours qualified for it, would not be available under any circumstance.”

The EEOC said that it will examine its overtime practices and make any necessary changes.

“We want to do overtime right,” said Acting EEOC Chairman Stuart J. Ishimaru.

The complaint was filed by the National Council of EEOC Locals No. 216, AFGE.

Source: Text of Arbitrator's Decision, via AFGE

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