THE FLSA GRIEVANCE REMEDY PERIOD
Not long ago we wrote about the very substantial difference between the time period in which a grievance must be filed once learning of a violation and how far back in the past an arbitrator can order the remedy be provided. (See LMR Russian Roulette) For example, if a union knew as early as January 1, 2008 that an agency was doing something it did not like, but did not find a statutory, regulatory or contractual obligation it could enforce through a grievance until January 1, 2014, how far back in the past can the arbitrator order the error corrected, with back pay if necessary, if the grievance was filed on January 15, 2014?
The union rep will argue that under the federal litigation concept known as “laches” the arbitrator has the authority to order a remedy beginning as long ago as six years before the day the grievance was filed, namely, January 15, 2008. And any agency rep with at least two IQ points to rub together is going to argue that the grievance is untimely because the union waited so long to challenge the action after it learned what the agency was doing. However, that argument will be quickly followed by the additional assertion that even if the arbitrator rules the grievances is timely under some variant of an “on-going continuous violation,” the remedy should be limited to the period immediately before the grievance was filed, e.g., 15, 30 or 45 days before the grievance was filed depending on how long the union has in the contract to file once it learns of the violation. Without any guidance in the contract or law instructing them how to decide the beginning date of the remedy period arbitrators are pretty much free to do as they please. Because that can damage both parties, we suggest that parties include in their term agreements a rule or two for determining how far back the remedy can be applied.
Before our post was even two weeks old, FLRA issued a new decision dealing with how far back an FLSA violation may be remedied when the parties’ agreement does not contain any specific rules. In the case (AFGE, 69 FLRA 133 (2015)), the union grieved a violation of the FLSA and on June 19, 2015 the arbitrator ordered the agency to give the employees back pay for uncompensated overtime retroactive to May 29, 2014, which is the day the agency denied the first step grievance. Obviously, the grievance was filed a short time before then.
The union filed exceptions claiming that the FLSA statute requires that when violations are found employee remedies are to begin at least two years before the date the grievance was filed and three years if the violation was willful. FLRA agreed and remanded the arbitrator’s decision for an award with a remedy effective at least two years before the grievance was filed and three if the arbitrator finds the violation was willful. Tracing back the logic of the case, the following case law passage seem to say it best.
The Authority has held, at least where parties have not agreed contractually to back pay periods different from those in § 255(a), that the statutory periods control. United States Dep’t of Justice, Fed. Bureau of Prisons, …Terre Haute, Ind., 60 FLRA 298, 299-300 (2004) …;United States Dep’t of Commerce, Nat’l Oceanic and Atmospheric Admin., … Norfolk, Va., 55 FLRA 816, , 821 (1999) ;NTEU, 53 FLRA 1469, 1494 (1998). Specifically, the Authority has concluded that this question is one of substantive law and not a procedural issue within the discretion of the arbitrator, NTEU, 53 FLRA at 1490, 1493-94, and that an award limiting the recovery period of back pay to the filing date of the grievance is contrary to law, NOAA, 55 FLRA at 821. (See AFGE, 62 FLRA 113 (2007))
Unlike the generic six-year laches period the FLSA statute spells out the maximum recovery period for violations of its terms.
Looking at this from the perspective of the negotiators on both sides of the table, agency negotiators should try to reduce the liability period as the FLRA seems to invite it to do. Union negotiators will undoubtedly oppose that, but should also think about what concession they might get in return for reducing the liability period. For example, perhaps they keep the period at two years for violations of an individual employee’s rights given how unlikely it is that the union will learn of that, but cut it to six months for violations involving an entire class of employees.