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Posted February 10, 2013 | comments Leave a comment

Firefighters to see overtime payout

By Alex Bridges

WOODSTOCK - Shenandoah County owes paid firefighters and rescue workers more than $123,000 for overtime, officials say.

Officials told the Board of Supervisors at a work session Thursday that under an old policy firefighters and emergency medical technicians accrued compensatory time but did not receive payment.

The issue traces back 11 years when the county began using paid firefighters. During that span, instead of paying firefighters for overtime hours worked in cash, the county paid the employees in time at time and a half, County Administrator Douglas Walker explained.

"In over 10 years and with the additional employees you can imagine with that length of time how much that that can actually accrue and that policy has to be changed," Walker said, adding that the county changed the policy in August.

The payout of $123,560 affects 31 fire and rescue workers, according to Assistant County Administrator Mary Beth Price.

Walker advised the board the county does not face the same problem with compensation of "gap pay" experienced in other localities. But the accrued overtime exists as a liability for the county, officials said.

"This is merely a change in our practice of compensating employees with cash where we used to compensate them with time specific to the Fire and Rescue Department as required by law," Walker said. "The number is big, at $123,000. But the time frame is long as it relates to over 10 years of accrual.

"This is not additional money; this is money that these employees are owed," Walker added. "If they had separated from the county they'd have been paid that because that's what they earned."

Price explained Friday that paying overtime for all hours worked beyond a scheduled shift applies to firefighters and emergency medical technicians. The current policy for paying compensatory time still applies to two staff not affected by the state regulation. Those employees still can accrue compensatory time.

As Price explained, annual or sick leave counts toward the calculation of overtime for firefighters and EMTS. Such time does not count in the calculation for all other employees, Price said.

Melisa Michelsen, an attorney with the firm Litten & Sipe, helped explain why the county needed to make the policy change.

"We're not trying to single out the firefighters and say they don't deserve comp time versus other county employees but they're treated differently under the law, which forces our differential treatment of them in our practice," Michelsen said. "Our recommendation arises from sort of a meshing of the federal law and Virginia law."

Under the federal Fair Labor Standards Act the county can insert compensation time versus overtime. However, firefighters can, under the law, accrue 480 hours of comp time, whereas other employees can accrue up to 240 hours, Michelsen explained. But the FLSA says the county must let the firefighters use the comp time unless it unduly disrupts firefighting services, she added.

Virginia law requires the county to pay firefighters overtime for hours worked over their normal schedule. State law also deems all paid hours as time worked in calculating a shift, Michelsen said.

"So the county would be in this never-ending hole of giving them comp time on top of comp time," Michelsen said. "When you kind of put it all together, the law and the practical effect of things, our recommendation is that this just can't continue. We've gotta have some type of stop to it and pay straight-out overtime."

Michelsen advised the county likely would need to pay out much more than the current amount owed of $123,000 if the old policy remained in effect.

"From a legal standpoint, from a business standpoint, from a policy standpoint it doesn't make sense to do anything other than satisfy our liability, remove it, and then what we've already done is not allow any additional liability to accrue," Walker said.

The Board of Supervisors has the authority to appropriate the funds necessary to pay off the liability. The matter likely will come before the board as an appropriation request at a future meeting. Walker said he can authorize the paying of the funds to cover the liability.

Frederick County leaders last year reached an agreement with paid firefighters who claimed the local government owed the employees gap pay as required under state and federal compensation guidelines that pertain specifically to emergency responders. The agreement allowed the county and its paid firefighters to avert a legal battle in court. However, a similar dispute over pay between the county and more than 60 current and former deputies with the Frederick County Sheriff's Office remains active in a federal court.

Michelsen told the board Shenandoah County doesn't face a deficiency in gap-time compensation to paid firefighters.

Also at the work session, supervisors:

Approved an occupancy agreement with Charterhouse Schools regarding the landlord-tenant relationship between the county and the Edinburg School. Walker, in response to a question posed at an earlier meeting by Supervisor David Ferguson, advised the portion of the agreement pertaining to utilities applies only to the shared areas of Edinburg School - the gymnasium, cafeteria and kitchen. The approved lease and service agreements pertain to the other areas of the building.

"This will conclude the documents related to the relationship between Charterhouse, the School Board and Shenandoah County Board of Supervisors for the initial implementation of the release of the school, so we're very excited about that," Walker said.

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

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