Federal Times, Judge: Census Owes Temporary Workers Overtime
August 8, 2005
By TIM KAUFFMAN
The Census Bureau improperly classified temporary workers hired to help conduct the 2000 Census as supervisors and kept them from earning overtime, a judge ruled.
Because of the ruling, the agency likely will have to rewrite the job requirements for affected supervisory positions and overhaul how it manages the nearly 1 million employees it hires every decade to perform the Census, said Jack Lee, a San Francisco attorney representing the workers.
“Certainly it would be prudent to change this job content before the 2010 Census so that they’re not sued again for the same thing,” Lee said.
About 200 supervisors affected by the ruling will be entitled to between $3,000 and $18,000 in back pay for overtime they performed, although at present the ruling technically applies only to a dozen or so supervisors in the Concord, Calif., local office. Lee currently is trying to determine how to extend the ruling to all the 200 field office supervisors who were part of the class complaint filed against the government in 2001.
The Justice Department hasn’t decided whether to appeal the ruling, a spokeswoman said. The Census Bureau didn’t return repeated calls for comment.
In a July 29 decision, U.S. Court of Federal Claims Judge Eric Bruggink ruled the Census Bureau failed to properly apply the Fair Labor Standards Act (FLSA) when it classified temporary employees hired to oversee field personnel collecting census forms as supervisors exempt from the act. Employees exempt from FLSA aren’t eligible for overtime pay.
The field operations supervisors hired by the Census Bureau didn’t have authority to hire, fire, promote or reward subordinate employees and had no say in how work would be assigned or managed, Bruggink said. Both of those requirements must be met to determine if an employee is exempt from FLSA as an executive.
Luita Lynch, who was a field operations supervisor in the San Francisco Bay area from April 2000 to June 2001, said she could request staff from an administrative office above her but had no say in whom she was given. She also wasn’t allowed to deviate from the handbook she was given to train census takers.
“I know what it is to be a supervisor and a manager,” said Lynch, 72, who had retired as director of finance for a large county hospital before taking the Census Bureau job. “Because I had been a manager, I know the difference.”
Like many employees the Census Bureau hired for the 2000 Census, Lynch was attracted by the novelty of the job — not the potential earnings. But she resents how the agency treated her and other employees.
“I would have happily been a head clerk. I didn’t care,” she said. “But to have the responsibility and accountability for something when you don’t have the authority is very difficult.”
Lynch figures she’s due more than $5,000 for 187 hours of overtime she performed while working for the Census Bureau.
Judge Bruggink said the bureau failed another test that can be used to exempt executives from overtime pay rules. To be exempt, executives must manage organizations that are ongoing in nature and are staffed with regularly assigned employees. Bruggink said neither was true at the Census Bureau, which augmented its permanent work force of 7,000 employees by 960,000 temporary workers to perform the 2000 Census, and placed them in an organizational structure that ceased to exist once the Census was completed.
Specialists at the Office of Personnel Management said the case shouldn’t apply to other agencies that routinely hire large numbers of temporary workers to meet peak demand periods.
The Census Bureau is hiring employees outside traditional civil service rules to perform a function it ordinarily doesn’t do — conduct the decennial census. Contrast that with the IRS, which hires seasonal employees who have the same benefits and civil service protections as full-time employees to augment a permanent work force dedicated to processing tax returns.
“In staffing up within the federal sector, most of the time you are going to see temporary employees brought in to increase the staffing of established, continuing organizations,” said Bob Hendler, a classification and pay claims program manager at OPM. “When that project goes away they leave, but the permanent employees stay behind.”
Hendler also noted there are other exemptions to overtime rules that could apply to professional or administrative employees who are assigned to manage teams of employees created to work on a special program or project.
By TIM KAUFFMAN
The Census Bureau improperly classified temporary workers hired to help conduct the 2000 Census as supervisors and kept them from earning overtime, a judge ruled.
Because of the ruling, the agency likely will have to rewrite the job requirements for affected supervisory positions and overhaul how it manages the nearly 1 million employees it hires every decade to perform the Census, said Jack Lee, a San Francisco attorney representing the workers.
“Certainly it would be prudent to change this job content before the 2010 Census so that they’re not sued again for the same thing,” Lee said.
About 200 supervisors affected by the ruling will be entitled to between $3,000 and $18,000 in back pay for overtime they performed, although at present the ruling technically applies only to a dozen or so supervisors in the Concord, Calif., local office. Lee currently is trying to determine how to extend the ruling to all the 200 field office supervisors who were part of the class complaint filed against the government in 2001.
The Justice Department hasn’t decided whether to appeal the ruling, a spokeswoman said. The Census Bureau didn’t return repeated calls for comment.
In a July 29 decision, U.S. Court of Federal Claims Judge Eric Bruggink ruled the Census Bureau failed to properly apply the Fair Labor Standards Act (FLSA) when it classified temporary employees hired to oversee field personnel collecting census forms as supervisors exempt from the act. Employees exempt from FLSA aren’t eligible for overtime pay.
The field operations supervisors hired by the Census Bureau didn’t have authority to hire, fire, promote or reward subordinate employees and had no say in how work would be assigned or managed, Bruggink said. Both of those requirements must be met to determine if an employee is exempt from FLSA as an executive.
Luita Lynch, who was a field operations supervisor in the San Francisco Bay area from April 2000 to June 2001, said she could request staff from an administrative office above her but had no say in whom she was given. She also wasn’t allowed to deviate from the handbook she was given to train census takers.
“I know what it is to be a supervisor and a manager,” said Lynch, 72, who had retired as director of finance for a large county hospital before taking the Census Bureau job. “Because I had been a manager, I know the difference.”
Like many employees the Census Bureau hired for the 2000 Census, Lynch was attracted by the novelty of the job — not the potential earnings. But she resents how the agency treated her and other employees.
“I would have happily been a head clerk. I didn’t care,” she said. “But to have the responsibility and accountability for something when you don’t have the authority is very difficult.”
Lynch figures she’s due more than $5,000 for 187 hours of overtime she performed while working for the Census Bureau.
Judge Bruggink said the bureau failed another test that can be used to exempt executives from overtime pay rules. To be exempt, executives must manage organizations that are ongoing in nature and are staffed with regularly assigned employees. Bruggink said neither was true at the Census Bureau, which augmented its permanent work force of 7,000 employees by 960,000 temporary workers to perform the 2000 Census, and placed them in an organizational structure that ceased to exist once the Census was completed.
Specialists at the Office of Personnel Management said the case shouldn’t apply to other agencies that routinely hire large numbers of temporary workers to meet peak demand periods.
The Census Bureau is hiring employees outside traditional civil service rules to perform a function it ordinarily doesn’t do — conduct the decennial census. Contrast that with the IRS, which hires seasonal employees who have the same benefits and civil service protections as full-time employees to augment a permanent work force dedicated to processing tax returns.
“In staffing up within the federal sector, most of the time you are going to see temporary employees brought in to increase the staffing of established, continuing organizations,” said Bob Hendler, a classification and pay claims program manager at OPM. “When that project goes away they leave, but the permanent employees stay behind.”
Hendler also noted there are other exemptions to overtime rules that could apply to professional or administrative employees who are assigned to manage teams of employees created to work on a special program or project.