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City must reimburse firefighters after violating labor law

By KBell
Dec. 11, 2010 at 6:11 a.m.

About 80 percent of the calls to which the Victoria Fire Department responds are EMS-related. Firefighters work a 24-hour shift every three days and cover all of Victoria County. They respond to about 8,500 calls for assistance each year.

CURRENT JOB DESCRIPTIONAccording to its website, the city is not hiring firefighters, but it lists an EMT and fire certification under the position's job requirements.

THE LAWWhile time spent attending training required by an employer is normally considered compensable hours of work, the following are situations where time spent by employees of state and local governments in required training is considered to be noncompensable:

(summarized) if it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Source: Section 553.226 of the Federal Labor Standards Act; www.dol.gov

UNANSWERED QUESTIONSThe Advocate made several attempts to speak with those involved with the mistake in 2005. All inquiries were referred to City Attorney Thomas Gwosdz, who came to the city in 2009. Here are some of what we didn't get answered:

Why was the decision made to change the job description so that firefighters had to receive training on their own time?

Who was involved in making that decision?

Did the issue of legality ever come up when the job description was changed?

Was there a misinterpretation or an unawareness of the labor law? And how so?

Did human resources ever hear complaints about the policy from those it affected?

TIMELINE OF EVENTSApril 1995: Vance Riley hired and charged with combining EMS and fire

Oct. 1, 2005: Job description changes so that anyone hired as a firefighter is required to be certified as a paramedic within two years

Oct. 1, 2006: Charmelle Garrett promoted to deputy city manager, a position that oversees human resources and the fire department.

October 2009: Thomas Gwosdz becomes city attorney.

July 12, 2010: Cheryl Marthiljohni becomes new HR director.

Sept. 7, 2010: City Council meets in executive session to discuss firefighter reimbursement pay.

Sept. 14, 2010: Council approves final budget, including moving $350,000 from the city's general fund to the fire fund for "training reimbursement pay," and increasing the tax rate .05 cents.

Sept. 21, 2010: Council unanimously approves appointment of Garrett to city manager.

Nov. 19, 2010: Riley announces retirement.

The city of Victoria owes 31 firefighters a total of about $350,000 for requiring them to get training on their own time and at their own cost.

The training requirement violated federal labor laws.

One of the former firefighters, Matt Pratt, said the requirement angered many in the department.

"The morale was down. No matter where you went, it was a negative attitude," Pratt said. "They didn't think it was legal. They didn't think it was right."

In 2005, the Victoria Fire Department mandated that firefighters hired after Oct. 1 be cross-trained as a paramedic within two years. The new hires were required to attend training on their own time and at their own expense.

City Attorney Thomas Gwosdz explained why the city has since reversed its position: "If an employer requires employees to undergo certain kinds of training, then the law requires that the employer pay for the time spent by the employees in that training."

Gwosdz, who came to the city in 2009, is the city's spokesman on the matter. Other members of city staff who were involved with the violation refused to comment.

"This is a situation where we want to be sure the city is speaking with one voice," Gwosdz said. "We know we live a more public life than most employees, but I'm going to do what I can to try to allow those employees to have some confidentiality in their employment situation."

RESPONSIBILITY

Cheryl Marthiljohni, who became the city's director of human resources in July, brought the violation to the city's attention, Gwosdz said.

According to the city council meeting agenda, the council met in executive session on Sept. 7 for "consultation with attorney on matter involving pending or contemplated litigation ... to include, but not limited to training time under the Fair Labor Standards Act."

In open session Sept. 14, the council approved the final budget, which included moving $350,000 from the city's general fund into the fire fund for "training reimbursement pay," according to city budget documents.

The oversight happened under Fire Chief Vance Riley and under his supervisor at the time, City Manager Denny Arnold, who retired in 2006.

Riley announced his retirement Nov. 19, effective Jan. 31. He denied the decision had to do with the labor law violation.

Charmelle Garrett was director of human resources at the time of the change in firefighters' job description. In 2006, she became assistant city manager, which oversees human resources and the fire department. Garrett will take over as city manager in February.

Since he wasn't city attorney in 2005, Gwosdz said it was unclear whether anyone was aware of concerns regarding the legality of the job requirement.

"That's a department head's decision, what happens to a job description," he said. Gwosdz said he couldn't say how the change was handled in 2005, but "our policy right now is that if there is a job description change, that will be reviewed by HR. And if HR has questions, that will be referred to legal."

An open records request for formal complaints filed about the required paramedic training produced no related documents.

Former firefighter Jon Sparkman, who worked with the fire department for five and a half years, said he and some of his colleagues approached Riley with concerns about the new job requirement.

"We confronted him and said it was illegal and violated federal labor laws," Sparkman said. "We talked to him several times, and he was adamant that he checked it out, and he was completely within his right to do that."

Sparkman did not personally approach the human resources department, he said.

"If we would have done that, that's considered going out of the chain of command," he said. "And that's going to get you in a lot of trouble."

However, several firefighters left the department after the change, and that in their exit questionnaires, they complained about not being paid for required training, Sparkman said.

REACTION

Sparkman's exit interview in August caught Marthiljohni's attention, Sparkman said.

"I wrote so much on (my exit interview), they asked me if I wanted to talk," Sparkman said. "Apparently they didn't really know what was going on."

An open records request for firefighter exit interviews since 2005 yielded 19 responses, all from 2007 to the present. Interviews before 2007 were destroyed pursuant to city policy, and not every firefighter who left the department necessarily filled out an interview, Gwosdz said.

Several exit interviews mentioned poor training opportunities and low employee morale, which Sparkman said was instigated by the change in the training policy and the lack of attention paid to firefighters' concerns.

Pratt, who quit in 2007 after four years on the job, agreed.

"It was pretty evident that you did see a decrease in morale," he said. "It hurts the morale, no matter where you work, when they say, 'This is what you have to do, keep your mouth shut, stay positive.'"

Pratt, 26, left for a job that paid for tuition and certifications, according to his exit interview.

But, just before the change in 2005, the city paid Pratt and 14 other firefighters for some paramedic training and the time spent in that training, he said.

Pratt sees the importance of firefighters being cross-trained as paramedics, especially since 80 percent of the department's calls are EMS related, he said. He noted he would consider re-employment with the department in his exit interview.

"I did enjoy my time there. I do think they went about stuff the wrong way. That's my only problem."

Gwosdz approached the city council with news of the mistake while next year's budget was being set.

"It was a concern that came up out of nowhere," Councilmember Gabriel Soliz said. "I thought for sure we could hold the line on the tax rate, and this adjustment took the tax rate question off the table."

The council approved setting this year's tax rate at 65 cents, up .05 cents from the year before, according to budget documents.

Councilmember David Hagan thought the city's management and human resources teams suffered a breakdown in communication over the matter, he said.

"I think there was a consensus that people wished they had been keeping an eye on the ball a little more closely and not allowed this to happen," he said of the other members in executive session. "I don't think anybody believed there was an intent to harm anybody, but at the same time, there's a frustration that this would happen."

Meanwhile, Joe Truman said he had faith the city's current management team would fix the situation.

"The HR director said we need to rectify this. So, it's like, OK then, let's do it," Truman said. "Prior administration thought they could (change the job description). As soon as we found out, we tried to jump on it and rectify it."

Mayor Will Armstrong called it a "personnel issue," which isn't handled by the council.

REIMBURSEMENT

In October, the Advocate filed an open records request for documents detailing the cost of reimbursing employees and documents detailing how many firefighters were affected by the mistake. A letter from the city attorney's office said there were no related documents.

One former firefighter, Shane Bridges, said he received a letter in September telling him he was eligible for a possible reimbursement. He has since received a letter stating he's ineligible because he was not employed with the city for at least two years after his training, a condition under state law, according to the letter.

Bridges, 24, received nine months of paramedic training at Victoria College, which he attended on his days off duty, he said.

"I didn't mind paying for it because it was something I planned on doing," Bridges said. "I wasn't aware it was against the law. ... I looked at it as a general job requirement."

Other firefighters trained different places and under different timelines, making the reimbursement calculations, which could include overtime pay, complicated. Reimbursement also depends on which level of training firefighters had already received, like EMT-Basic, EMT-Intermediate, and finally, Paramedic.

Former firefighter Jason Sutter, who was hired before the change in job description and therefore unaffected by it, said he paid about $3,000 to attend paramedic school for three semesters in 2006 and 2007. He said he attended class eight hours a day, every three days.

Sutter, 35, said he requested a reimbursement for the classes in 2005, when paramedic certification was only required for promotions. The city reimbursed half of his class costs.

"I don't feel like I got slighted," Sutter said. "I think a lot more people are upset now thinking, 'I did this on my own, and now these guys are going to get paid.' A lot of guys went to paramedic school under this promotional policy."

Gwosdz was unable to comment on why the city stopped paying for training in 2005 and how the mistake was overlooked until now. Garrett and Riley, who were with the city in 2005, declined to comment.

Gwosdz said the $350,000 figure was an estimate from the human resources department.

"Not all of the decisions have been made. But I'll tell you that we're looking at each employee on a case-by-case basis," he said.

Juan Rodriguez, the deputy regional director of public affairs at the U.S. Department of Labor, said he can't comment on specific cases, but the city could suffer civil penalties, including fines for violations, should the Wage and Hour Division get involved.

"In addition to the civil money penalties, employers are required to pay back wages for minimum wage or overtime. Employer must come into compliance by correcting all violations and assuring future compliance," Rodriguez said in an e-mail.

To comply, the city requested department heads review job descriptions within their departments in an effort to prevent any more oversights.

"And we've encouraged each of those departments to bring forward to the human resources department any concerns that they may have with respect to that," Gwosdz said.

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