Dear Sisters and Brothers,
The August, September, and October paychecks of most AFSCME Local 685 members will contain a special “catch up payment” for persistent errors in the County’s calculation of overtime. Although we’re grateful that the County is attempting to resolve this long-standing issue, they’ve missed the mark again and Local 685 has joined a multi-union lawsuit to correct the County’s flawed payroll system and properly reimburse members for unpaid overtime. You must individually “opt in” to the lawsuit in order to receive additional pay – and liquidated damages – above what the County has erroneously calculated.
What’s this about?
In 2012, police officers working for the City of San Gabriel filed a lawsuit (Flores vs. City of San Gabriel) seeking to recover overtime pay under the Fair Labor Standards Act (FLSA). Specifically, the San Gabriel police officers claimed that the City failed to include the negotiated benefits allowance (like our Choices cafeteria plan County contribution) when calculating their regular rate of pay. The case ended up in the Ninth Circuit Court, which ruled in favor of the officers. The case went all the way to the U.S. Supreme Court, which rejected the case making the ruling final.
On July 13, 2018, the County announced to Local 685 and other County unions that because of the Flores decision, it was going to recalculate the overtime of employees back to January 1, 2018, and pay us what we are owed. However, we were not satisfied with the County’s response, most notably because the FLSA has a three-year statute of limitations and we should be reimbursed for 36 months, not the eight months the County intended to pay.
Working in concert with the Coalition of County Unions, we – with the help of one of the country’s premier FLSA attorneys, Will Aitchison – attempted to get the County to agree to a “tolling agreement,” which would have put the statute of limitations on hold so that a payroll expert could compute what we were owed over the entire 36 months. We could not reach agreement, and a lawsuit was filed federal court on August 9, 2018. ALADS members Thomas Ferguson and Miguel Ortega are the lead plaintiffs in the lawsuit.
On August 10, the day after the lawsuit was filed, the County announced that it has now “determined that retroactive payments for the overtime hours employees worked from August 1, 2015, through December 31, 2017, are appropriate.” Though the exact amount is not yet known, it is clear these additional payments, which will occur in September and October, will likely cost the County tens of millions of dollars.
Aitchison and a team of lawyers and FLSA experts are now analyzing the County’s latest decision. One thing is clear, though. Our decision to aggressively pursue the FLSA claims and the decision to retain a first-rate lawyer to handle those claims has moved the County from a position two months ago of paying precisely nothing for our FLSA claims to a position today where the County will be paying County employees millions of dollars in overdue overtime compensation.
Chief Steward, AFSCME Local 685
A message from the attorneys handling the case:
The overtime lawsuit against the County is moving forward. The L.A. County Probation Officers Union, AFSCME Local 685 encourages all members to join the lawsuit in order to protect your overtime rights. Here’s the information you need about the lawsuit and how to join.
What is the lawsuit about? AFSCME Local 685 believes the County has been underpaying employees’ overtime. In its Flores decision two years ago, the Ninth Circuit held that “cashback” payments from health care plans had to be included in the overtime rate under the Fair Labor Standards Act. The County has failed to comply with Flores. In addition, AFSCME Local685 has reason to believe that the County’s basic overtime calculations have been wrong.
Are employees automatically part of the lawsuit? No. To be covered by the lawsuit, employees have to sign a document known as a ‘Consent to Join’ that will be filed with the court.
Who is eligible to join the lawsuit? Any employee who has worked any overtime hours for Los Angeles County at any time since August 9, 2015, is eligible to join the lawsuit. This includes retirees, provided they worked overtime in the last three years.
How Does the Lawsuit Relate To The Extra Overtime Payments The County Will Be Making? Clearly spurred by the preparations to file a lawsuit, the County has announced that it will now be paying employees extra overtime retroactive over the last three years. However, the County will not be paying employees the “liquidated damages” the lawsuit is seeking. “Liquidated damages” are an amount equivalent to back pay, which is why the FLSA is known as a double-damages law. The lawsuit will also examine whether the County’s payments are accurate.
How to Join the Lawsuit. Employees must complete two forms to join the lawsuit: (1) A consent to join the lawsuit; and (2) An attorney-client agreement. Employees can download the two forms here, https://www.laovertimelawsuit.com/. The signed forms can either be returned to the AFSCME Local 685 office or to Nicole Castronovo, Attorney, 1428 2nd Street, Suite 200, Santa Monica, CA 90401.
Who Are The Attorneys And How Are They Being Paid? The team of attorneys handling the case include attorneys from the Rains Lucia Stern St. Phalle and Silver law firm and the Public Safety Labor Group. The attorneys are handling the case on a 25% contingent fee basis, meaning that the attorneys only get paid if they make a recovery. The attorneys’ fees will only be charged on the additional amounts they recover beyond what the County will be paying employees in the extra overtime payments.
Who Should Employees Call If They Have Questions? If you have any questions, call attorney Nicole Castronovo at 310.393.1486 or AFSCME Local 685 at 213-386-5860.