NFFE LIGHTS UP AUO-FLSA DISTINCTIONS FOR LEO PERSONNEL
What do you do if law enforcement officers in your unit are suddenly switched to AUO compensation for work that for years they had been paid FLSA overtime to do? Our advice is that you check out two FLRA decisions NFFE litigators won that establish a fairly bright light on how unions can get their members the higher rate of compensation. In DoAg, Forest Service and NFFE, Local 5300, 68 FLRA 90 (2014) the agency tried to save some money by switching folks from FLSA to AUO for the time the officers would be patrolling a large, multi-day public event at one of the national forests. NFFE objected and took the agency to arbitration and then FLRA to get their members justly compensated.
FLRA came out strong on NFFE’s behalf saying,
As stated previously, under 5 C.F.R. § 610.121(b)(3), an officer who is eligible for both AUO and FLSA overtime may recover FLSA overtime by demonstrating that his or her supervisor knew of the specific days and hours of the work requirement in advance of the workweek and had the opportunity to determine which employees needed to be scheduled to satisfy the work requirement. However, as the Authority stated in Forest Service, “[n]either the regulations nor the case law requires that a supervisor know with certainty the exact number of overtime hours prior to the administrative workweek. Rather, they require only that a supervisor be able to ‘reasonably predict[ ]’ the hours in question.
The arbitrator found the agency should have known in advance to schedule this time because the Agency was aware of the hours that the grievants would be required to work — and planned in advance that the grievants would be working extra hours — because of its prior experience with the event, the permit application by the group hosting the 2013 event, and the supervisor’s directive that the grievants complete and synchronize their report data each day.
NFFE litigators have made it easier for law enforcement officers throughout government to deal with being shuttled between AUO and FLSA to reduce their compensation. (The second NFFA victory is cited within this case.)