Union Says NY Cheats on Sandy Response Pay

ALBANY, N.Y. (CN) - New York is stiffing thousands of state workers for overtime they racked up responding to Superstorm Sandy, their union claims in court.

As Sandy bore down on New York City and Long Island last October, the state pressed into service white-collar workers who usually are ineligible for overtime pay. But in authorizing overtime for the "extreme emergency," the Division of the Budget set a new qualifying floor: 47.5 hours.

"DOB has essentially set a rate of zero (0) for work performed between 40 and 47.50 hours per work week," the New York State Public Employees Federation, AFL-CIO, says in its class-action complaint in Albany County Supreme Court.

The union claims state civil service law may give the Division of the Budget the authority to grant overtime to otherwise ineligible workers. But "it does not allow for DOB to change or create an overtime floor by increasing the statutorily defined work week in attempts to limit overtime payments."

The union, which represents 54,000 state workers in professional, scientific and technical positions, estimates that 14,469 members were affected by the Division of the Budget action.

The workers are in salary grades 23 to 27, whose pay range stretches from about $66,000 to $100,000 annually, according to the state's Department of Civil Service website. Their work week typically is 37.5 to 40 hours.

Named as defendants are the governor, the state, four state agencies and their commissioners, and the Division of the Budget and its Director Robert Megna.

Megna wrote a memo soon after Sandy hit that explained how overtime-ineligible employees would be compensated for storm-related work.

Agency heads were authorized to determine who could provide "critical and essential" services and to pay them a rate that did not exceed the standard 1.5 times their regular hourly rate - and still stay "within existing budget allocations."

The memo, which is available on the Division of the Budget website, says overtime kicks in at 47.5 hours.

"Blanket overtime authorization is granted for staff in Grade 27 and below positions who work in excess of 47.5 hours per work week, provided that such overtime is both essential and directly related to activities associated with the state's preparation and response to Hurricane Sandy," the memo states.

The Department of Transportation, one of the defendant agencies, subsequently posted a notice on its website that mirrored the memo's 47.5-hour overtime floor, according to the complaint. "It further provided that employees should indicate on their timesheets that the hours worked between 40 and 47.50 should be entered as 'volunteered time,'" the union says in its complaint.

Another defendant agency, the Division of Homeland Security and Emergency Services, told employees they would not be paid overtime for hours falling between 37.50 and 47.50 per week "and that no compensation would be received for those hours, based on the guidance provided from the DOB," the union says.

The complaint details the extra hours put in by four workers selected as representative of the class. Two are civil engineers, one at the Department of Transportation and the other at the Division of Homeland Security. Another is an environmental engineer at the Department of Environmental Conservation and the fourth is a principal sanitarian at the Department of Health.

Only one, the environmental engineer, who helped organize emergency spill-response efforts, received any overtime pay - and only for the time worked in excess of 47.5 hours.

The most overtime hours - 237.75 - were reported by the civil engineer at the Division of Homeland Security, who spent 2½ months mobilizing recovery teams conducting damage assessments.

Through the Megna memo, "DOB has clearly indicated that it does not intend to pay overtime to the representative petitioners or other class members for these hours worked in connection with Hurricane Sandy," the union says.

"DOB acted in excess of its authority ... and its actions are arbitrary, capricious, irrational and contrary to law."

The union asks the court to direct the Division of the Budget to approve payment of all overtime for the workers - including for the time worked between 40 and 47.5 hours. In the alternative, it says, the court should direct the defendant agencies to process the paperwork needed to get the workers paid.

The complaint, brought by the union's house counsel Eric Kwasniewski, also asks the court to certify the four workers as representative of the class affected by the Megna memo so they can be paid overtime too.

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