Alison Fry
Fri, 04/01/2022
In an arbitration handled by MSE Partner Diana Nobile and Associate John Stewart, Arbitrator Mary Jeanne Tufano found that the Bureau of Prisons willfully violated the law in failing to pay overtime to three AFGE Local 307 bargaining unit members assigned to work as “Teachers” at United States Penitentiary Allenwood.
The Arbitrator rejected the Agency’s attempt to argue that the three grievants were Fair Labor Standards Act (FSLA) exempt teachers, finding that:
“The evidence in this case established that each of the grievants spent a considerable part of their work day on custodial duties in furtherance of maintaining the safety and security of the facility, including inmate pat downs, census counts, searching for missing inmates, leaving the Department entirely for assistance calls…participating in correctional officer training and being ‘augmented’ to a custodial position for the day as needed[.]”
She then went on to analyze each of the 3 grievants’ specific job duties and found that they all spend less than 50% of their time performing teaching duties, and that the Agency failed to meet its burden of proving that teaching was the primary duty for any of the grievants.
She ruled that Agency failed to carry its burden to show good faith, making full liquidated damages mandatory and that the Union proved willfulness extending the recovery period for the grievants back to March 2018.
The Agency now owes these three grievants the difference between what they were paid as FLSA exempt employees, and what they should have been paid as FLSA non-exempt employees earning 1.5 times their regular rate of pay, plus an equal amount in liquidated damages, plus attorneys’ fees and costs.
If you are a BOP union official representing bargaining unit members assigned to the position of “Teacher” who spend less than 50% of their time performing teaching/instructional duties, and who also work overtime shifts on custody posts, please contact us as soon as possible for additional information on vindicating your members right to overtime pay. Some Teachers may also have a claim for unpaid overtime if they were assigned to a detail that did not involve any exempt instruction work for a period of at least 30 days (e.g., to perform laundry or commissary duties during the pandemic) and worked overtime shifts during that time period.
Contact us here for more information about these claims.
