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Posted December 27, 2012 | comments Leave a comment

Judge orders mediation in deputies' lawsuit

By Alex Bridges

Mediation may help settle a civil dispute over pay between Frederick County and dozens of current and former sheriff's deputies.

U.S. District Judge Michael F. Urbanski earlier this month held a hearing on a motion for summary judgment by the county to end the case. Urbanski instead ordered the case referred to Magistrate Judge Robert S. Ballou for mediation.

Dozens of former and current deputies claim Frederick County owes them for unpaid overtime, referred to as "gap pay," as required under state law for compensation of law enforcement officers. The lawsuit filed in U.S. District Court in Harrisonburg in April names the county and the sheriff's office as defendants.

The lawsuit prompted Warren County to look at how it pays fire and rescue workers, according to Human Resource Manager Jodi Spittler. The Board of Supervisors recently approved a request from the Finance Department to transfer $75,108 from the county's reserve for contingencies fund to the fire and rescue budget for fiscal 2013. The amount covers the period from July 1, 2010 through June 30, 2012 and includes FICA and an estimated workers' compensation, according to a memo to supervisors from Spittler and Finance Director Carolyn Stimmel.

"With the recent lawsuit in Frederick County filed by deputy sheriffs who allege that the Sheriff's Office and/or County failed to pay them overtime or 'gap' pay, County staff began proactively conducting researching to see if this gap pay issue may affect Warren County employees," states a July memo to the board from finance.

Frederick County avoided a similar legal dispute when the board agreed to pay $96,000 to settle a compensation dispute filed on behalf of fire and rescue workers. The Board of Supervisors also offered deputies a settlement payment, but the plaintiffs' attorneys turned it down, saying the amount didn't cover the total the county owed.

The Warren County Finance Department began paying the correct amount owed to fire and rescue workers July 1. Supervisors discussed gap pay at subsequent work sessions and finance officials found that the county owed firefighters and emergency medical technicians more than $75,000 in overtime pay, according to the memo.

As explained in the memo, state code defines gap pay for firefighters and rescue workers as the hours worked in excess of the standard 200 per pay period, but less than 212 hours under the Fair Labor Standards Act. Gap pay for law enforcement officers is hours worked in excess of 160, but less than 171 hours, per pay period. FLSA mandates overtime pay. State code expands the regulation by adding gap pay.

The state code does not apply to the Warren County Sheriff's Office because it employs less than 100 personnel. The office employs 48 full-time workers, well below the threshold. No such exception exists for firefighters and rescue workers.

The July memo notes that staff also consulted with an expert on public employment who further explained the statute on gap pay. Staff also attended a "webinar" in late July on public employee compensation.

As the expert explained, the employer should look at the number of normal hours a firefighter or EMT works in a 28-day period. If, for example, the person's normal schedule calls for 200 hours, then any amount in excess would qualify for time-and-a-half overtime. However, if the person normally works 210 hours in the period, the overtime would not kick in until the employee exceeds that amount. The expert also explained that any employee normally scheduled to work 22 hours in a 28-day cycle is entitled to overtime for time in excess of 212 hours regardless of the gap time issue.

The county had been paying straight overtime for gap pay. Staff then had to look at schedules from the fire and rescue department to determine the normal cycle for employees. Staff then recommended that the county look back two years and pay any overtime owed to fire and rescue workers.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com

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