Unrung Heroes

State's on-call workers hope to collect for unringing phones

If the alt-fuel program is the great hurricane of bureaucratic snafus, the state's on-call employment policy is at least a tropical storm.

Still, this little piece of employment-manual small print is quietly causing major headaches for some state agencies and could cost those agencies, and ultimately taxpayers, somewhere between $20 million and $30 million.

"Some agencies have really been thumped by this," says Tom McGuire, the assistant state attorney general overseeing the claim-paying process.

At issue is a long-standing state administrative rule that says people who are required to be available for work are entitled to some sort of compensation for the hours they must be available.

However, the state's position, reflected in Department of Administration policy, was that every agency had the option to pay on-call time depending on whether the agency could afford it.

Some state agencies paid under the vague rule, some didn't bother.

In 1997, a group of state employees brought a class-action suit against the state demanding compensation for years of these unpaid on-call hours. A settlement was reached last September. Eligible state workers would receive $1 for each legitimate off-duty hour dating back to May 14, 1995.

Workers had until early January to file their claims.

And file they did. In all, 2,365 state employees made claims, with 1,609 of those claims coming from workers at the Department of Corrections. DOC claims totaled $21,805,000. In all, employees from 27 agencies asked for more than $30 million.

According to the settlement, agencies had until April to challenge claims and until June to pay uncontested claims.

Especially for DOC staff, that was like getting one day to recount the votes for all of Palm Beach County. The DOC begged for, and received, an extension for assessing, challenging and paying the claims. As many as 12 of the agency's internal auditors have been poring over the mountain of claims.

In this case, the dimpled chad equates to what exactly it means to be on-call.

Much of the debate centers on the DOC's tactical-support units. These are the guys who would rush back to the penitentiaries in the case of a riot or other crisis.

In the settlement, "on-call" was described as any worker who could be reprimanded for not answering their supervisor's call to work.

Tactical-support officers aren't directly reprimanded if they can't come to work. Supervisors just continue on down the phone list. However, officers argue, they will be dumped from the units if they miss too many calls. That's the same thing, they argue.

To sort out the mess, the Attorney General has hired eight independent arbiters to make judgments on the claims. Beginning late this month, the arbiters will begin looking at a test patch of 300 claims state agencies want to challenge.

There will be many more challenges; particularly from DOC, where administrators don't want to fork over $10 million from their own budget (the other $10 million would be paid from the state's risk-management budget).

"We're getting a lot of calls from people who don't feel they have been treated fairly," says Wendy Harrison, an attorney who represented workers in the class-action suit. "We're thinking they'll take a run and challenge every one of these."

DOC officials wouldn't comment on which, or how many, claims they hope to challenge.

This spring, officials from the state's administration department approached legislators looking for help in paying the claims.

Not a chance, says Representative Laura Knaperek, chairman of the House Appropriations Committee.

"They wanted $10 million," Knaperek says. "We said: 'Your agencies knew about this. They refused to obey the law and deal with it. They can pony up for it out of their lump-sum budgets."

That sent state officials running to a judge for another extension. They wanted the deadline for paying the claims moved from June to July. That extra month would allow agencies to cover the cost of on-call payments over two fiscal years instead of one.

Only about $2 million in claims will be paid this fiscal year, Knaperek says, with half that coming from the state's risk-management budget.

Those hopelessly swamped auditors and arbiters will decide how much will be paid the next year.

Considering employee appeals of those decisions, which will come early and often considering the ambiguity of the policy, the issue could flounder on for years.

"I imagine this might be haunting us for many years," Knaperek says.

 
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