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Deputies file amended suit against county over 'gap pay'

By Alex Bridges -- abridges@nvdaily.com

Attorneys for dozens of former and current Frederick County law enforcement agents filed an amended complaint in their lawsuit alleging the local government didn't pay them for accrued overtime.

The complaint accuses Frederick County of violating federal law and Virginia code requirements concerning "gap pay" and overtime compensation for its sheriff's deputies. The lawsuit names more than 60 current and former deputies as plaintiffs. Frederick County and County Administrator John R. Riley Jr. are identified as respondents to the suit. Leesburg attorney Timothy P. Bosson, of Simm Showers, filed the amended complaint Thursday. Bosson did not return a phone call or email request for explanation Thursday.

Parties also are scheduled to participate in a conference by telephone Monday.

The amended complaint contains two counts, the first of which is a collective action in which the plaintiffs seek relief and to recover unpaid overtime compensation under the Fair Labor Standards Act and Virginia state code. The second count also is a collective action seeking relief solely pursuant to state code.

The complaint states that the FLSA generally requires employers to pay overtime to an employee who works over 40 hours per week or 80 hours biweekly, but a subsection of the act allows localities to alter the work-period for law enforcement employees to avoid paying overtime until an officer works over 171 hours during a 28-day work period. Since 2005 the plaintiffs have been designated by the defendants as 28-day work-period employees.

"Despite being scheduled to work 160 hours per work period, deputies are routinely forced to work more than 160 hours," the amended complaint states. "The excess hours occur because the deputies are frequently required to work past their shifts, make court appearances, earn firearm certification, or attend mandatory training related to their specific expertise."

Virginia amended its overtime laws to require localities that employ 100 or more law enforcement employees to pay overtime compensation to deputies for the difference between the regularly scheduled hours a deputy worked and the federal maximum allowed, the complaint states. Since the law changed, plaintiffs should have received overtime compensation for all hours worked over 160 and below 171, referred to as "gap pay," according to the complaint.

"Despite knowledge of [the amended law's] passage, defendants have refused to pay overtime to plaintiffs for the gap-pay wages due," the complaint states.

The complaint notes the county's human resources director in October 2006 notified the commonwealth's attorney that the locality had more than 100 law enforcement officers and that the county was bound by the new law.

"Despite recognizing that the law applied to the count, at that time, the defendants still refused to comply with the gap-pay requirements until January 1, 2012," the complaint states.

The lawsuit also alleges the county violated FLSA and state law by altering employees' time records, misappropriating hours and failing to pay compensatory time as overtime. The county adopted a policy which lets deputies accrue overtime hours in one work period and take those hours off in future periods, the complaint states.

"Contrary to law, however, defendants do not give the deputies credit for the "comped hours" at the required time and a half rate," the complaint states.

The defendants also, since 2005, applied a system called adjusting work scheduling to re-allocate law enforcement employees' hours for the purpose of reducing overtime for deputies, according to the complaint.

"The system works by reducing the deputies'' regularly scheduled hours on a future date by any overtime hours worked on a previous day," the complaint states. "To cover up these frequent schedule changes, defendants have wrongfully 'doctored' plaintiffs time sheets, erasing the actual hours worked and reported by the deputies, and recording instead the hours that the deputies were originally scheduled to work."

Plaintiffs initially sent notice to the county on behalf of all the deputies on April 9. The county denied the claim asserting the technicality that the notice was for all plaintiffs. The plaintiffs, as they told the court they would do, submitted individual claim letters to County Attorney Roderick Williams on July 11 for all 63 plaintiffs involved in the suit, according to the complaint.

Having no other recourse, the deputies have filed this suit to redress the defendants' wrongful behavior, the complaint states.

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