The US Department of Labor has ruled the town must begin giving overtime to several employees working within the town of Colonie but there still seems to be the unanswered issue of whether the town owes any back pay.
In 2009, the United Public Service Employee Union had sat down with the Town of Colonie to begin renegotiating the contracts of its administrative group the union represents. It realized that 14 employees were being exempt from being paid for overtime hours of time and a half, according to UPSEU Regional Coordinator Kathy Wright.
“It’s generally a litigious relationship, they want to litigate everything,” Wright said. “It’s very difficult to try and get them to work with us on an issue. Everything has to be grieved or litigated.”
This didn’t gel with the union as it said there were employees with similar titles in other units within the town that were being paid premium overtime. Wright said UPSEU sat down with the town to try and resolve the situation but the town wasn’t being receptive.
“They did not listen and dug right in,” she said. “We filed a complaint with the Department of Labor and provided extensive information and job descriptions. The Department of Labor launched an investigation in October of last year, came back and said seven of the 14 titles were exempt and the other seven should be receiving over time at a higher rate.”
This was corroborated with Rosemarie Newton, the director of the Human Resources Department in the Town of Colonie. She said the town had to do a review of 22 titles. There were 16 titles the Department of Labor identified as exempt and that six titles should be considered as non-exempt. She said this was due to the interpretation for employees working with computers changing over the years with the evolution of technology. With all of these, the department of labor did not see any reason for back pay.
“We talked about seven titles,” she said. “There were six the department of labor saw no requirement to pay back pay. They advised on a going forward basis that we needed to pay time and a half.”
Newton said there is one title currently under review to see if there is any additional compensation that must be paid. She added that the individuals were paid straight time under the policy that existed with the town, but now the Department of Labor is looking to see what the amount may be.
Wright said from her understanding of the Department of Labor’s decision, the town should be paying those employees back pay. Under the rules of the Fair Labor Standards Act, the wage and hour division would require the town to pay up to a maximum of two years back if it decided an employee was due back wages.
Wright said during the time which the complaint was made, which was in 2009, the town might have to pay back the two most recent years.
The Department of Labor does not confirm or deny there is an open investigation, said Ted Fitzgerald, spokesperson for the wage and hour division of the Department of Labor. He said the purpose of its investigation is to see if the employer is in compliance with the Fair Labor Standards Act and if not, will determine what back wages are due and works with the employer to ensure wages are paid.
“The case is never closed until the workers are paid,” he said. “If there are no back wages due, then the case will be closed at some point.”
Fitzgerald also echoed Wright’s point and said the town decided to continue to not pay back wages, dug in and lost. Wright said this was somewhat symbolic of the union’s relationship with the town since the union started representing the administrative workforce in 2009.
“It’s generally a litigious relationship, they want to litigate everything,” Wright said. “It’s very difficult to try and get them to work with us on an issue. Everything has to be grieved or litigated.”
