Tips on overtime designation

by Paul Pickett, Ecology Steward

By the time you read this, you will have received a letter from Ecology’s Human Resources Office. The letter says your position was reviewed and a determination made whether you are Eligible or Exempt from receiving paid Overtime.

Your letter will tell you that nothing has changed. However almost one-third have received notice that their status has changed from OT Exempt to OT Eligible.

Your union stewards and WFSE staff representatives have been working hard on this issue for over a year. A few newsletters ago we worked out a settlement on this issue that provides a few new benefits:

• You are getting a letter letting you know about your review, regardless of how the review came out. Management previously was only notifying those whose OT status had changed.
• You are getting seven working days to provide HR with more information if you aren’t happy with the decision. This is a new benefit that will apply for this year to our agency alone, and was not previously in the contract.
• If you provided HR with new information, they will inform you how the information affected their decision, whether it changed anything or not.

Chris Parsons, Ecology’s HR Director, is going around the state giving presentations on these changes. He provides a good review of what’s going on, and we hope you will attend one or view his slides on the agency Intranet. But if you are changing from OT Exempt to OT Eligible there are some practical implications that you might need to know about, so we wanted to provide a few observations on how to manage this change:

Eligible is the norm.

First, keep in mind that in the world of Labor you should always be paid time-and-a-half overtime if you work over 40 hours per week. The history of Labor included a long battle to ensure the 40-hour week and paid overtime. That’s why the term “Exempt” is used – it should be the exception, not the norm. Ecology was unusual in the number of OT Exempt positions it had, and the agency’s liability for a U.S. Department of Labor audit led to this review.

You might prefer the flexibility of Exempt and don’t expect any Overtime.

This is true for me and for many people I talk to, and it’s one reason many Ecology staff have fought the OT Eligible designation. However, it’s been the experience of union staff that the benefits of OT Eligible designation usually outweigh the negatives. Ecology member stewards have fought for the rights of employees to have their say, regardless of which OT designation they prefer.

You might feel insulted by the Eligible designation. One of the OT Exemptions is called “Learned Professional."

HR is interpreting this to mean that if a college degree is required for your job (as designated in your Position Description Form), you get that exemption, but if a degree is not required you are OT Eligible. This is jargon from Federal Rules and you shouldn’t take it personally. The fact remains that the agency depends on your education and experience to accomplish its mission. In fact, it means you are valuable enough to get some extra pay for those long weeks in the field or preparing for a deadline.

If you are unhappy with the change, you have options:

1. Use the 7-day period to provide written documentation about why the decision was incorrect. This will take some very quick research on the rules and what you can argue.
2. Your options for a grievance are still open. However, keep in mind that this issue has already been grieved, and it’s within management’s powers to make the OT eligibility determination.
3. Work with your Supervisor to change your Position Description Form. This is the most likely way you can change your OT designation. If the PDF is changed to show a different requirement of qualifications or duties, then the position could be reviewed again for OT designation. A common situation would be if a PDF allows “experience or education”, which would usually trigger an OT Eligible designation. Changing it to a requirement for a college degree could return the position to OT Exempt status. But it might not, if positions with equivalent duties do not require a degree. Also keep in mind that the “experience or education” requirement has kept career paths open for staff without degrees to promote in the agency through on-the-job training. 
4. You could file a complaint with the Department of Labor. However, remember that Eligibility is the norm.
5.  The Department of Labor website (http://www.dol.gov/dol/topic/wages/backpay.htm) suggests that you might be able to file a claim for backpay for any hours over 40 per week that you worked for the last 3 years.

Learn what your options are and start talking with your Supervisor.

If you are now OT Eligible, you can be paid time-and-a-half for any hours over 40 per week if you have your Supervisor’s approval.  Or, if you and your Supervisor agree, you can get Comp Time instead, i.e. time-and-a-half paid time off. Either way you should be talking to your Supervisor about what situations you envision in the year ahead where you both agree you will need to work more than 40 hours for a week. You will need your Supervisor’s authorization for OT hours, although they could be authorized in a block over a project or a field season. And if you agree on Comp time, you will need to agree on when you take the time off – it has to be used before the end of June in each Fiscal Year.

You still have flexibility in your schedule.

Most Ecology employees are listed in Appendix B of the Contract, which allows you extra flexibility in your schedule. So you should be able to flex your schedule within a 40-hour work week. Also, if you are working a “9-80” alternative schedule (eight 9-hour days and one 8-hour day with a flex day off during two weeks), you can redefine your work week so the two weeks are still each 40 hours long. (Your work week might begin at noon on Friday, for example.)

Workload management and field work scheduling will be more difficult.

There’s no sugar-coating this! You will have to watch your hours carefully and work closely with your Supervisor on how to fit your work into 40 hours per week when you aren’t authorized for Overtime. This is where having a clear communication strategy and a good relationship with your Supervisor is very important.
Don’t give your time away for free.

When you are OT Exempt it’s easy to work extra hours and not book it on your time sheet. It goes against the union principle of being paid for the work and time you give to your employer. But it’s still the choice of many employees who care about the work they do. If you are OT Eligible, this is not an option. The agency is liable if you work over 40 hours and don’t pay you Overtime. And you could be subject to discipline if you work over 40 hours per week without being authorized for Overtime. Just don’t go there! Manage your time within a 40 hour work week, or work with your Supervisor on Overtime options. And enjoy the extra time you have for the rest of your life!

Give yourself some transition time.

It may take a while to work out the kinks. Talk to your Supervisor a lot and figure out what works well for your personal style.

Get help if you are having problems.

Talk to a union steward if you are confused or if you are having difficulty with your Supervisor. We want the changes to be to your benefit. And we want to problem-solve so you can continue doing your good work with minimum stress.  ■

Monosyllabic Day, June 1

Governor Gregoire today announced that June 1, 2011 would be honored as "Monosyllabic Day".

"I like Plain Talk, and want all staff to use it" she said. "On this day all staff should speak just with words of just one syl..., er, just short words." The Governor went on to say that if Monosyllabic Day was a success, she might also declare a "Short Sentence Day". "That's good too" she noted.

Summit with Ted - Stewards and UMCC representatives meet with the director

- by Kerry Graber

The sometimes difficult relationship with management seemed to turn a corner when stewards and elected representatives from across the agency met with Ted Sturdevant, Polly Zehm, Chris Parsons, and Amy Heller.  The purpose of the meeting was to find common ground and move from conflict towards a more productive relationship.

To prepare for the summit members and stewards held a number of internal discussions with members.  We went over both our issues and complaints brought to the table as causing conflict.  Some of these difficulties have been highlighted in past  bulletin articles (see Ecology Blog at www.wfse.org), issues that seemed to hit a brick wall with management when brought to the UMCC meetings.  The complaints from management's side were primarily about how the union was pursuing the interests of members, including using this bulletin as a forum to express editorial opinion.

Our internal discussions centered on agreeing to our values, and then holding up our various positions against those values to see if they were still appropriate.  Then we came up with our list of priorities and suggestions to present to Ted at the summit as opportunities for collaboration.

We were able to explain our values as we presented each opportunity to Ted during the meeting.  For example we felt we still had more ideas to offer regarding effective communication and training around the overtime eligibility audit, with the value that clear, upfront communications need to be provided to employees with "no surprises."  We renewed our request to work collaboratively on budget issues such as efficiencies and overhead costs within the agency, in order to pursue participatory management of the agency we all work for and care about.  And we suggested collaboration on training and policy development around "inappropropriate behavior" (or workplace bullying), for a safer and healthier work environment.

The discussion on the last topic stirred up a lot of questions for Ted and Polly.  They both said they were very concerned to hear our characterization of Ecology as having a management culture that allowed workplace bullying.  We gave specific examples, and the stewards were able to illustrate the nature of the problem and the challenge we have representing people who are afraid to come forward in a bullying situation.

Ted wrapped up the meeting by agreeing to provide feedback on these offers of collaboration at the next UMCC meeting (to take place as soon as the legislative session is complete).  He also said he would plan on attending the UMCC meetings as a rule.

Next UMCC meeting scheduled for June 10, 2011.

Parking lot for contract ideas!

What are your ideas for the next contract (2013-2015)?

As we look at and work with our new contract, let's capture the ideas and questions that arise right here.
This article is a "parking lot" for our ideas for the next round of bargaining.

So, how does this work?  Simply leave your ideas as a comment and we'll let the list grow until it's time to convey our ideas to the new bargaining team.

Click on the comment link to park your idea!

UMCC Meeting Notes, 2-11-11

UMCC Meeting – 1 to 3 p.m.

Present for employees:

Kerry Graber, Charles San Juan, Kathy Conaway, Sally Lawrence, Debbie Brookman (WFSE Staff)

Present for management:

Ted Sturdevant, Polly Zehm, Chris Parsons, Pat McLain, Erik Fairchild, Carol Fleskes, Corrina McElfish, Amy Heller

Agenda:                

• Union Management Relationship
• Management Perspective – Ted
• Union Perspective
• Discussion
• How can we make the Union-Management relationship more productive?
• Wrap Up

Introductions

We went around the room, and Ted took the opportunity to announce that Pat is retiring, which is why Erik is there as he will be her replacement and will take up her role at UMCC meetings.

Union Management Relationship – Management Perspective

Ted kicked this off by sharing that he has been director now for one and a half years, and in this time he has seen the union/management relationship become increasing less effective and productive.  He wanted to take this time to have a frank and honest discussion about our different perspectives.  He believes it is important to understanding who we are, and our identity as an agency.  It is an essential part of understanding what it means to be a part of this agency.

Ted feels at this point we should all know and understand the answers to certain questions, like the appropriate use of email.  He believes at this point we should all have a mutual understanding of the rules of the road.  He perceives that we feel they have been inflexible with adherence to the collective bargaining agreement (CBA).  It is his opinion that more trust and respect is needed all around.

He has been unhappy with what he called a “gotcha” mentality on the part of the bargaining unit.  As an example he cited the budget ad hoc committee experience.  During the summer of 2009 up to 2010 it is his perspective that a great deal of time and effort was expended on their part to meet, explain the budget, and share what they know.  In the end he says we concluded they were “hiding the ball,” a conclusion we stated in our newsletter.

Another example came from the last meeting Ted held with stewards and UMCC elected members.  The first issue brought to his attention during the meeting was a great deal of intensity about a newspaper story on extra furlough days.  This turned out to be a mis-read of the situation, since it only applied to DSHS employees.

A third example was the most recent newsletter that mentioned three times that Ted was late to UMCC meetings.  He felt it was unfair to place undue emphasis on that point, right after we had the steward/UMCC meeting where he had acknowledged our desire to have him present at future UMCC meetings, and he said he would make every effort to do so.

At this point Ted asked Chris to expand on the issue of flexibility and the HR perspective.

Chris said there is a need to provide balance in the amount of effort and resources applied to support the UMCC.  We have had 15 meetings over the two year period of 2009 and 2010, well over the minimum required amount of two per year.  He feels they have reached out and been more forthcoming and flexible because they were willing to meet more frequently.  He expressed frustration that the bargaining unit has chosen to keep bringing up issues over and over that cannot be resolved because decisions have been made downtown at the Labor Relations Office (LRO).   Chris feels many of the issues we bring forward and ask for flexibility are clearly addressed in the contract. By extension therefore it should be obvious what we are asking is not possible, and continuing to push Ecology is not going to be productive.

We seem to be suggesting that Ecology go against decisions made by LRO which have been made for the purpose of statewide consistency.  Ted chimed in that he is not going to tell LRO that Ecology is going to do things its own way, as this is a route that would place him in direct conflict with his chain of command.  Further there are important reasons for all of the agencies to be consistent on contract issues.

A second concern from Chris is in regard to Joan Gallagher’s claim that HR could have implemented the draft MOU agreement before it became final, thereby avoiding the number of problems that were grieved.  Chris denies flatly that this is accepted practice in the negotiating world, that the last toffer provided by the opposing side in a demand to bargain if the bargaining session does not conclude in a timely manner can be implemented before reaching a final settlement.   (Note:  Joan’s point was that there would have been little to no risk to acting in good faith consistent with the last negotiated agreement in order to avoid the mess, but we were unable to get back to this point during this discussion.)

Chris also expressed exasperation at the amount of Temporary Lay Off (TLO) grievances filed by the union on behalf of Ecology employees that he felt were contrary to the clear language of the collective bargaining agreement and the MOU.  He cited some examples. Amy and Chris also both feel that once the initial grievances were filed and consolidated by agreement it was no longer necessary to keep filing the same grievances each furlough day.

Polly was given a chance to provide additional thoughts before allowing us to respond.  Her perspective is that the relationship has become increasingly more polarized when it should be a supportive relationship.  She would like to see us select some things to work on together, and use this UMCC forum more effectively to figure out how.  She recognized there will be a new contract, and there will be a whole new UMCC.  She would like to see this relationship improve before then.

 
Union Management Relationship – Union Perspective

Kerry took the first opportunity to respond.  She took a deep breath and said that was a lot to digest and respond to, and we would do our best to address each point.

First, remember that the Federation became the representative of the bargaining unit here at Ecology over six years ago.  There have been two challenges to the Federation in the form of two de-certification attempts, and a significant majority of votes were cast to stay unionized with the Federation as our representative.  So when we come to the table to talk about problems and issues, we expect that management will take them seriously because by election the UMCC represents the members as best they can under the system.

It has felt like we have been bringing issues and concerns to management through UMCC meetings only to be asked for and challenged to provide a litany of examples.  This feels like we are not being believed, or that management does not think these issues or problems really represent how the majority of members feel.  Yet in more recent experience, many of these same issues and concerns have been raised by members at the All-staff meetings, which should tell management that the UMCC is bringing legitimate problems to them, and that despite our own challenges we indeed have our fingers on the pulse of what is going on.

It is a challenge as a bargaining unit to be organized because we operate with a democratic process, an inherently messy process.  We have a relatively small group of people that meet twice a month, and our issues are gleaned from those two groups.  It is not a process of consensus, but a challenging process of figuring out what we need to bring forward to management.  If management hears different messages from individuals, it represents the fact that no one person is in charge with one clear chain of command.  Yet we are managing to figure out what is not working well and bring it to the UMCC to the best of our ability.

In regard to the newsletter, Kerry said she does not screen out people’s opinions.  They are essentially opinion pieces with the voice of the writer.  We try to make sure we get the facts right, but if Ted and others read something unpleasant in the newsletter, then it should be taken as a sign that there is more work to be done on an issue.  I am not going to censor what are essentially the opinions of members and their right to express them openly.  The newsletter provides a diversity of opinion.

In regard to claims that we should all be on the same page in regard to the “rules of the road,” or the CBA, there were two parties negotiating the contract yet we do not always agree on interpretations of the CBA.  The union does not lightly support grievances, as there is a process of vetting them before a grievance committee (both local and statewide Kathy pointed out) to make sure there are grounds to support moving forward with it.  And, it takes a great deal of courage for people to grieve, so the fact that so many have filed grievances should say something .

Further it was pointed out that when we ask for flexibility it is because we actually do believe they have discretion enough to address the issue.  Debbie Brookman pointed out the fact that there are situations where Ecology clearly had discretion, but chose not to be flexible, as in their decision not to allow the chairperson of the budget committee to attend UMCC meetings.  Debbie shared that the Federation has been trying to get an MOU signed with LRO agreeing that the first TLO grievances, if settled, would cover all others harmed under the implementation of the furloughs, and has so far refused to do so.  That puts us in the position of having to continue to file grievances because we are required to file them when there are violations of the contract.

At this point we went to the video conference to ask Sally and Kathy to chime in.  Sally said she appreciated the opportunity to have such an open discussion of the issues.  Members at NWRO continue to be very frustrated with the inability to have regional high-cost pay implemented, and again in this new contract there will be no relief to a growing problem.  Another person has departed for a job that pays $20,000 more per year for a local municipality.

Ted said he was aware of the difficulties being experienced at NWRO and shared her concerns.  He said that whenever something like this happens the information is being tracked for when something can be done about it.

Kathy said she also appreciated the opportunity to have a frank discussion.  She thinks something we (the bargaining unit) can look at is either provide more oversight of the newsletter, or be clear it is expressing opinions.  She agreed with Polly that the relationship has been polarized.

Charles spoke up about the budget team in order to share the context of some of the conflict.  Charles said the formation of the budget team was in response to a reduction-in-force situation that took place in the Water Quality Program.  To members there seemed to be no accountability on the part of management for what was a serious lack of attentiveness to the budget.  Accountability for how the resources are spent was the primary focus of members of the budget team, not just understanding how the mechanics of the budget works.  Ted appreciated the clarification.

Ted wrapped up the discussion by sharing that he wants to be more intentional about this relationship.  In regard to the newsletter, he doesn’t buy that we can’t control what is written.  However on a positive note he suggested we convene the larger group with the stewards, and with a few additional managers, to have a broader discussion of all of these issues.  Then have at least one more UMCC meeting after the session is over.  (It was suggested for May, and have the larger group meet before then.)

We are to contact Teri to set up the large group meeting.  HR will set up what will be our last UMCC before this UMCC group “retires.”  We are to collaborate on an agenda and think about what are some things that need addressing that we can work on together.  It was suggested that we talk at that last meeting about how the new UMCC system will work, and how best to transition to new regional UMCC meetings.  Kerry suggested that Scott Mallery be allowed to attend since he was directly involved in negotiating that part of the contract on behalf of Ecology employees.

This ended the meeting.

Grievance settlement wins gains for Ecology employees

- by Paul Pickett

Thanks to an innovative settlement between union members and Ecology management, employees have now gained a significant new benefit. As Ecology Human Resources staff in 2011 review all of the agency’s positions for their overtime designation, employees will have an improved process that provides transparency and an opportunity for input.

The story begins over a year ago, when Water Resources Program staff received notice that Ecology had changed their overtime status from Overtime Exempt to Overtime Eligible. Many of the staff were concerned because they had no input into the process and their supervisors weren’t asked about the change. When they reviewed their files, and there was no documentation about how their position was reviewed other than a cursory checklist. On the checklist it appeared that they had been changed from Exempt to Eligible solely because they did not have a college degree.

Five employees from ERO, CRO, and HQ put their names on the line to protest this action through a grievance. Their complaint cited the violation of 5 contract provisions, including compliance with state and federal law, impacts on promotion and layoff options, proper notification procedures, and discrimination.

The situation raised some interesting issues in the union context. Typically, unions want employees to be overtime eligible so they can earn overtime pay, and federal labor law reflects this. However, at Ecology many employees appreciate the flexible schedule offered by being overtime exempt. Usually overtime eligible employees find themselves saddled with strict time keeping and reporting requirements. In addition, in the current budget crunch employees don’t expect management to approve any overtime pay.

After discussion among the grievants, stewards, and WFSE staff it was clear that this grievance was in principle about transparency and substantive process. Employees should know how a decision was made and have input so the decision is based on good information. This is relevant whether they prefer being overtime eligible or exempt.

On top of this was the concern that the use of an employee’s degree was arbitrary, since many jobs in Ecology have similar duties performed both by employees with degrees and by employees who have learned their profession on the job. Employees without degrees were concerned about the implications for promotion and layoff, and about the appearance that management was abandoning a career path for non-degreed staff into technical professional positions.

Management’s initial settlement offer was weak, and the grievants wanted more, both for themselves and for all employees. Thanks to the hard work of Susanna Fenner, WFSE Council Representative, tough negations followed and after many weeks of back and forth a settlement began to take shape. A final agreement was reached in early March.

What did the grievants and WFSE staff win?

• Grievants will have 14 days to submit additional written documentation for their decision.
• During 2011, all employees will get notice that a review has occurred and whether they are overtime exempt or eligible. They will have 7 working days to provide more information, and if they do, HR will review the information and inform the employee of the outcome.
• Management confirmed that promotion and layoff options will be determined by positions requirements, not by overtime designation.

This is an entirely new process not previously in the contract. Unfortunately we were only able to secure this process temporarily. However, this adds a benefit for the current process that will affect all employees. Employees still retain the right to grieve their overtime designation in the future if they believe the contract was violated. And we can try to get it included in the next contract for all Washington general government employees.

Ted says "Let's talk" to UMCC representatives

- By Kerry Graber

The UMCC met with managers on February 11, 2011 to talk about how to make the union/ management relationship work better. Ted Sturdevant, Chris Parsons, and Polly Zehm shared a number of concerns about the deterioration of the relationship, and expressed a desire to make it more productive.  We were asked to stop asking for flexibility in the contract that they believe is not there, and we were asked to refrain from venting frustrations with their positions in our newsletter.  They made an offer to work with us and to collaborate on issues that we could have more success at resolving, and they indicated a desire to engage with us toward solving problems.

The UMCC representatives listened attentively and responded to their concerns by explaining our positions and providing our perspective on how frustrated we are too.  Since we have different interpretations of some of the articles within the contract, even though both parties have representatives at the bargaining table we walk away  with two different perspectives on what is flexible and what isn’t.  We were able to effectively point this out during the meeting, but there was no resolution to this conundrum during this meeting.

Ted offered to meet again with the larger group of stewards, activists, as well as UMCC representatives.  This is scheduled for April 18, 2011.  For a full text of meeting notes check the Ecology blog