PEF sues for Hurricane Sandy overtime
Union says state reneged on promise to pay
ALBANY The state’s second-largest labor union is suing for back overtime pay for 14,469 of its members who weren’t compensated for their work in connection with Hurricane Sandy.
Gov. Andrew Cuomo, the state budget director and four state department heads are named as respondents in a lawsuit filed in state Supreme Court in Albany County on Feb. 26 by the Public Employee Federation. The union is claiming the state authorized overtime hours for employees responding to the weather emergency last fall but failed to pay for the extra work.
Because of the “extreme emergency,” the state Division of Budget made some overtime-ineligible employees eligible for overtime, although overtime pay didn’t kick in until the employee worked 47 1⁄2 hours for the week. Any hours above a normal work week and below that threshold were supposed to be compensated at the normal rate, according to the suit.
The suit says the distinction by the state’s Division of Budget is a violation of the Civil Service Law’s overtime pay provision. “[The state’s] actions are arbitrary, capricious, irrational and contrary to law,” reads the suit.
The state Division of Budget, which normally doesn’t comment on pending litigation, didn’t respond to questions. A spokeswoman for PEF didn’t respond to a request for comment.
Four specific PEF employees, who were deemed eligible for overtime by the state, are highlighted in the class-action suit, including Albany County residents Joan Bobier and Heide-Marie Dudek. A class action was filed, according to the suit, because it is the most efficient and surest means of resolving the issue.
Workers in the suit fall between salary grades 23 and 27. Their work week is between 371⁄2 hours and 40 hours.
The suit can be found on the Capital Region Scene.
Dudek, a civil engineer for the state’s Department of Homeland Security and Emergency Services, aided the initial public and private damage assessments and worked with FEMA. She worked 237 3⁄4 hours of overtime in connection with Sandy relief and has not been compensated for any time beyond her normal week, the suit alleges. This included 67 1⁄2 hours that falls into the window of a normal work week and the 47 1⁄2-hour threshold.
On Nov. 6, 2012, the suit claims, Dudek was informed in an email that she would not be paid for any overtime in connection with Sandy relief. This directive came initially from the Division of Budget, contradicting its decision to authorize overtime for ineligible employees.
Despite receiving this notification, Dudek continued to work overtime hours for at least another two months.
Bobier, a principal sanitarian for the state Department of Health, was specially assigned to a disaster assistance center in Suffolk County. The suit alleges she was not compensated for additional work, including 7 1⁄2 hours in the window created by the Division of Budget.
In the case of state Department of Transportation employees who are normally not eligible for overtime, but were deemed eligible after Sandy, they were supposed to characterize the hours worked between 40 and 47 1⁄2 hours as a “volunteered time,” according to the suit.
A spokesman for the Department of Transportation said the department was withholding any comment because the case represents pending litigation that is now being handled by the state Attorney General’s Office.
Based on the failure to pay overtime wages, the suit concludes, “DOB has clearly indicated it does not intend to pay overtime to the representative petitioners or other class members for these hours worked in connection with Hurricane Sandy.”
The PEF agrees that state Budget Director Robert Megna has the ability to grant overtime to otherwise ineligible employees in the case of an emergency. The suit contends that Megna exceeded his authority when he added the caveat of an overtime floor, which essentially increased a normal work week to 47 1⁄2 hours for people responding to Sandy. Traditionally, employees receive 1 1⁄2 times their normal rate when working overtime.
“DOB has essentially set a rate of zero for work performed between 40 and 47.5 hours per work week, which is in violation of [Civil Service Law],” said the suit.
The directive setting up the 47 1⁄2-hour work week was issued on Oct. 29 by Megna and was effective for Oct. 26. “Blanket overtime authorization is granted for staff in Grade 27 and below positions,” was the policy established, according to the suit.
PEF lawyer Eric Kwasniewski brought the suit. According to an online court filing, the appearance date for this case is March 22 and no judge has been announced yet.