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Posted August 3, 2012 | comments 2 Comments

Attorney: Sheriff, not county, pays deputies

By Alex Bridges -- abridges@nvdaily.com

An attorney for Frederick County asked this week that a judge drop the locality from a lawsuit alleging it cheated dozens of sheriff's deputies out of overtime pay.

A motion for summary judgment filed Thursday in U.S. District Court in Harrisonburg seeks to remove Frederick County as a defendant in the lawsuit involving more than 60 former and current deputies. The motion, filed by Jim Guynn Jr., claims the county does not serve as the employer for the deputies.

The lawsuit claims the county and the sheriff's office, run by County Administrator John R. Riley Jr., and Robert T. Williamson, respectively, cheated deputies out of "gap pay" for years until the jurisdiction changed its policy beginning Jan. 1.

Attorneys for the plaintiffs allege the county and sheriff's office violated the federal Fair Labor Standards Act and Virginia law which defines "gap pay" and dictates how sworn law enforcement officers should be compensated for overtime.

Guynn argues his clients have no authority over deputies.

"Defendants are not the employers of Plaintiffs and therefore cannot be held liable under the allegations in the Complaint," the motion states.

Guynn notes that both the Gap Pay Act and the FLSA provide that aggrieved employees may seek redress from their employers. In this case, Guynn argues, neither the county nor Riley employ the deputies. Under this argument, Guynn states his clients are entitled to the summary judgment.

Guynn further states that under Virginia law counties and county administrators do not employ sheriff's deputies. The sheriff of the county "has the sole authority to 'employ them, to discharge them, and to direct their work,'" the motion states.

"The deputies can obtain no relief from Frederick County or John Riley and therefore the Court should dismiss Frederick County and John Riley from this action with prejudice," according to Guynn, who cites decisions in previous cases concerning localities and FLSA.

To bolster his argument, Guynn included with the motion a declaration by Paula Nofsinger, human resources director for Frederick County. In the declaration, Nofsinger states the county does not have the authority to hire, fire, supervise or discipline deputy sheriffs. Likewise the county does not supervise or control deputies' work schedules or conditions of employment. The county also does not set the rates of pay or method of employment for deputies though the sheriff generally follows the jurisdiction's pay scale, according to Nofsinger.

"The sheriff is free to use his discretion in abiding by the pay scale and there is nothing Frederick County can do to require the sheriff to conform to the pay scale," the motion states, citing Nofsinger's declaration. "Frederick County generally maintains only payroll- and benefits-related records and copies of evaluations. All of these documents are for payroll purposes."

Guynn argues the practices in Frederick County mirror those of the jurisdictions which judges found in previous court cases were not enough to establish a county as an employer of sheriff's deputies. Guynn asked that the court reach the same conclusion for the reasons stated, that the judge grant his motion for summary judgment and dismiss his clients from the lawsuit with prejudice.

2 Comments | Leave a comment

    Become a union.. That'll eliminate that... Reggie Arno Danville VA

      Sadly, deputies are forbidden by law to become a union. Saying that the Sheriff pays the deputies is silly and defies reason. I can assure you if the "Sheriff" decided that all deputies should make 100k a year, the county would intervene and take care of that matter. These kinds of cases are what makes the citizens of this fine country so cynical.

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