News
All Work, No Pay ...

Louisiana custodian Charles Woodfork has a reason to smile. Not long ago, he won two years of back pay for unpaid overtime.

Most ESP are covered by federal overtime rules. That means a hefty tab for a 'working' lunch.

Charles Woodfork, a custodian in Webster Parish, Louisiana, did a little math when his elementary school principal directed him to stay on grounds for two hours between his morning and afternoon shifts, each four hours in length, and only compensated him for the extra hours with free lunch and breakfast.

Over a three-year span, Woodfork repeatedly pointed out to his principal that the district, by expecting him to wait on campus between his shifts, was asking him to work 10 hours a day at eight hours pay. The principal would only respond by altering Woodfork's timesheet starting and quitting times, making it appear that he was not working the daily 10 hours.

"I felt used," recalls Woodfork, a member of the Webster Association of Educators. "I finally got tired and took my case to the Association."

In late 1998, Woodfork filed a grievance for the overtime pay due him and, accompanied by a local UniServ director, went to a hearing with the local superintendent. The result? Woodfork won $1,500, the equivalent of two years of back pay at time-and-a-half, minus meals.

The superintendent had little choice. Woodfork had both the evidence--the altered schedules and grease-spattered sign-in sheets--and the law on his side. Webster Parish had violated the federal Fair Labor Standards Act, the law that extends minimum wage and overtime compensation guarantees to most non-certified public school employees.

Had Woodfork been free to leave the building in between his custodial shifts, he would, under FLSA guidelines, have been "waiting to be engaged." That time isn't compensable under the law.

But confined to school, he was "engaged to wait," entitling him to compensation.

Unfortunately, administrators and teachers, who are exempted from federal overtime rules, don't always realize they're creating a compensable situation when they engage a support staffer to wait. Or when they interrupt a paraeducator's lunch for a "small" job.

"The Fair Labor Standards Act was originally passed to protect the Depression-era unemployed," notes Arizona UniServ Director Jim Slingluff. "The aim was to make overtime prohibitively expensive and get employers to hire more people."

Times change, but FLSA overtime rules are still on the books--and enforced.

Want proof? In the early '90s, a U.S. Labor Department probe uncovered overtime violations in Arizona's Amphi-theater school district, especially among ESP working alongside FLSA-exempt school administrators and staff.

To settle the violation, the school district had to shell out almost $1 million in back overtime pay.

Understandably, some of the best overtime advice for ESP comes from Arizona Education Association staffers who've been through the overtime wars. They advise support staff to:

• Educate teachers and other "exempt" employees about FLSA. Support staff and teachers should "communicate with one another on how to provide the best services to kids under this law," says UniServ Director Jeff Thomas.

• Don't just rely on the feds. The FLSA is just one vehicle for winning overtime compensation. It's also possible to protect overtime rights through state legislation--or by negotiating contract language that actually spells out federal overtime requirements or calls for premium pay beginning at less than 40 hours a week.

• Keep good records. "If you work through a 'duty-free' lunch, document it," stresses Thomas. Your time sheets and testimony may prevail if a federal inspector suspects the accuracy of administrators' records, notes UniServ Director Jim Slingluff.

• Use discretion. "Consider the impact of a huge back pay penalty on the school system budget," advises UniServ Director David Henderson. "Back pay awards can be structured so that employees get what they deserve and educational systems are spared."

• Fight systemic overtime abuse through the Association. "If you know of strong evidence of substantial violations of the law, gather stories from ESP in representative positions, particularly those working in an 'exempt' environment," advises Slingluff. "If you do decide to go to the U.S. Department of Labor, get together with your UniServ rep, and go in a unified way."

For more information, contact your UniServ office or the U.S. Department of Labor's Wage and Hour Division.

Kudos To ...
Driving It Home on Drive Time

Inglewood teacher Ayesha Lindsey introduces a California Teachers Association radio spot.

• On 23 radio stations this past autumn--from El Centro to the Oregon border--listeners heard morning drive time radio spots produced by the California Teachers Association.

  Introduced by classroom teachers and anchored by CTA President Wayne Johnson, the ads highlighted recent increases in student achievement scores, while focusing on unsolved problems in public education--including unwired schools, crowded classes, teacher shortages, overflowing universities, and the need to relate testing to what's being taught.

  More radio spots, which have been researched through CTA interviews with hundreds of teachers, will be broadcast this spring. You can download sample ads at www.cta.org.

• In this day and age, you don't offer a 5 percent increase to certified staff while holding out a paltry 1.1 percent raise to support staff. At least not in Tucson, Arizona, where members of the Amphitheater Education AssociationM--600 certified staffers and 150 ESP--fought such a divisive offer through community outreach, sickouts, and rolling strikes.

  The payoff: a contract settlement with a 5 percent increase for all employees, plus a no-contracting pledge.

• In New Jersey, the Atlantic City Education Association has won an administrative law judge's order for reinstatement of three laid-off custodial employees--with back pay and benefits--and compensation for nine others, former head custodians who were demoted to the custodian position in 1998.

  The school board will have to pay out approximately $250,000 in back wages and benefits.

Basics for Beginners
Five Overtime Tips for ESP

1) You must be compensated at the time-and-a-half rate for all time past 40 hours actually worked in a week. You may only use comp time in lieu of pay if you or your union have a negotiated, written agreement with the employer.

2) If you and your employer have a time-and-a-half comp time arrangement, you should be able to use your banked time "within a reasonable period after making the request." So long as your request does not "unduly disrupt" the operation, your employer may not arbitrarily deny your request for time off.

3) You may volunteer in school without overtime consequences by: performing services in your own child's classroom, participating in activities directly involved in your child's education, or performing services other than those for which you are employed by your district.

4) If you are required to work in two or more positions for the same employer, say custodian and security guard, your hours must be added together to determine if you are entitled to overtime.

5) Bona fide meal periods are not paid as worktime. But if interrupted by the employer, they are compensable. Say federal regs: "The employee must be completely removed from duty for the purposes of eating regular meals. . .The employee is not relieved if he is required to perform any duty, whether active or inactive, while eating."