Extra-Help Public Defenders Demand Overtime Pay

LOS ANGELES (CN) — Santa Barbara County refuses to pay overtime to overworked contracted public defenders tasked with handling more than 200 cases each, two such attorneys claim in a federal class action.

Named plaintiffs Peter Depew and Rafael Gutierrez were “extra-help deputy public defenders,” who were classified similarly to temporary or part-time employees despite working full work weeks and overseeing more than 200 cases each, they say in the May 9 collective action complaint.

They seek back wages and overtime under the Fair Labor Standards Act form themselves and all other extra-help deputies who affirmatively join the litigation.

As extra-help deputy defenders, they “did not qualify for defendant’s benefit package available to permanent employees, which includes vacation and holiday pay and health insurance,” according to the 8-page complaint.

Their base grievance, however, is that they “were paid an hourly rate of pay and … routinely worked in excess of 40 hours in a workweek without receiving overtime compensation for their overtime hours worked.”

The county “wilfully engaged in a pattern of violating the FLSA [Fair Labor Standards Act] by knowingly failing to pay” overtime and by misclassifying extra-help deputies as exempt from the act, the plaintiffs say.

In a short interview Wednesday, Santa Barbara County Counsel Michael C. Ghizzoni said he could not discuss the lawsuit, noting that it had been filed just the day before, Tuesday. “We’ve just become aware of the complaint,” he said.

Generally, government lawyers are salaried and therefore not covered by overtime rules.

In 1999, a class representing some 12,000 Department of Justice lawyers sued for overtime pay, but their case was rejected by the U.S. Court of Appeals for the Federal Circuit in 2006.

More recent litigation involving resource-poor public defender offices have involved lawsuits by the offices and their clients demanding more money from counties. At times public defenders have refused to take new cases beyond a certain point, sparking litigation against them and the local governments by client advocates.

In all, about a dozen lawsuits over indigent defense resources have been filed in the past few years, including in New Orleans; New York; Fresno, Calif.; Idaho; Utah and Pennsylvania, according to a lengthy article in the American Bar Association magazine.

Ordinary wage and hour litigation such as Depew’s and Gutierrez’s appears to be rare.

Gutierrez was paid $34.75 an hour to work as an extra-help deputy public defender from May 23, 2016, to May 3 this year. He typically was in sole charge of 230 open case files, he says in the lawsuit.

Depew was an extra-help deputy from March 28, 2016, to Aug. 15, 2016, at about the same pay, with an average of 200 cases “for which he was the sole assigned legal counsel.”

Both men worked primarily out of the county’s Santa Maria courthouse.

Depew, now a sole practitioner in San Luis Obispo, declined to discuss the lawsuit, referring questions instead to his attorneys counsel Hernaldo J. Baltodano and Lisa Boutelle Lazzara, both of San Luis Obispo.

Neither responded to telephone messages requesting comment.

Depew and Gutierrez say in the lawsuit that Santa Barbara County treated them as exempt from the FLSA “despite knowing that they did not meet the salary basis test” under the act.

That provision states that “in order for the professional exemption to apply, the employee must be paid … a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of the work performed.”

Depew and Gutierrez say that their pay was “subject to reduction because of variations in the quantity of the work they performed.”

They seek declaratory judgment that they and other extra-help defenders are not exempt from the labor act’s rules, and for their back overtime pay and attorneys’ fees.

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