Appealing Overtime

The federal government's three largest employee unions filed a joint brief Tuesday in an attempt to push an appeals court to reconsider a case involving attorneys at the Justice Department seeking overtime pay under the Federal Employees Pay Act.

In 2002, the Court of Federal Claims ruled in favor of a class action suit brought on behalf of more than 9,000 Justice attorneys, claiming they were induced to work overtime but were not paid for that work. The claims court found that "official policy at the Department of Justice has been to accept overtime work from its attorneys without paying for it."

On June 23, 2004, however, a Court of Appeals panel reversed that decision, citing an Office of Personnel Management regulation that requires the overtime to be approved in advance. Although Justice Department officials acknowledged that they expect attorneys to work overtime when necessary, they argued that under the OPM regulation the plaintiffs would only be eligible for overtime if it was "ordered or approved … in writing by an officer or employee to whom this authority has been specifically delegated."

"In holding that the [Justice Department] is not liable for overtime on an inducement theory, we do not wish to be seen as countenancing any effort by DoJ or any other agency to evade the requirements of FEPA," the panel said in its ruling. "The government's brief in this case candidly admits that DoJ attorneys were expected to work overtime without compensation. If an adverse personnel action were taken against an employee who declined to work uncompensated overtime, that action might well be found to be invalid. But that is not a ground for awarding overtime compensation that was not ordered and approved in strict compliance with the regulation."

Three labor unions-the American Federation of Government Employees, the National Federation of Federal Employees and the National Treasury Employees Union-lashed out at the appeals court ruling and said the decision could undermine overtime pay across the federal government.

"This is just one more assault on overtime pay," said John Gage, AFGE national president. "If one agency finds a way around accepted overtime practice, what's to stop another from doing so?"

The panel could review the amici curiae brief filed by the unions and elect to reconsider the case, but that almost certainly will not happen, according to people familiar with the process. The unions' primary hope is that the case will be brought for a review by the entire Court of Appeals. The unions are seeking to have the case reheard based on precedent-setting importance, and because they believe the June reversal has undermined the FEPA statues.