Over the course of LIUNA’s representation of IHS employees, workers have complained about the tremendous demands of the job which resulted in unpaid overtime; others complained of capped overtime and being required to take comp time instead of overtime, being told there was no overtime budget. This was not an isolated problem, but a series of violations of the Fair Labor Standards Act (FLSA). There were two problems:
- Many positions were misclassified as exempt from the FLSA and therefore many employees working in Nursing, Lab, IT, Engineering, Pharmacy, Social Services and other classifications were not properly paid as required by the FLSA;
- Many employees already covered by the FLSA were working lots of unpaid overtime hours or in overtime travel or training because of the demands of their jobs. Their supervisors knew or should have been in a position to know about their overtime but did nothing about it. Number one is called a Misclassification violation and number two is called a Suffer and Permit Overtime or SPOT violation. Both left workers unpaid for critical patient care and support services.
In early 2008, the Union met with Mike Snider of Snider and Associates, a Baltimore law firm that specializes in Federal Agency compliance with the FLSA. It was decided that with their expertise and resources, the firm was capable of taking on such a big job. The firm’s large number of paralegals could call into the LIUNA bargaining units and get good information from workers on the universal disregard that the IHS had for compliance with the FLSA.
On May 8, 2008, Snider and Associates, representing LIUNA on behalf of all its IHS bargaining unit employees, filed 31 identical grievances under the 31 contracts that LiUNA had at the time. The grievances claimed general violations of the FLSA, including the failure to properly pay earned overtime and the misclassification of work groups to exclude them from FLSA protection. Within days before and after the LIUNA grievances, Snider filed two other grievances, one for the NFFE unit in Montana and one for an AFGE unit in Oklahoma. On July 14, 2008 all of the grievances were consolidated into one. Because LIUNA represented 91% of the employees it became the leading and primary grievant. Snider’s lawyers and paralegals started their massive calling campaign that resulted in 2000 affidavits to support the grievance.
The Misclassification Negotiations
In the meantime, between 2008 and 2011 there were three sets of negotiations and three Memorandums of Agreement (MOA’s) negotiated by the Snider lawyers and the Union. These negotiations resulted in approximately 2400 employees gaining protection and potential compensation under the FLSA.
The Arbitration Phase
In early 2011, after much of the employee interviews were done, the union met with IHS, to talk to them about potential settlement. They offered only a tiny fraction of what it would take to pay employees for what they had lost.
The Union insisted the parties pick an arbitrator and proceed. Both sides were fortunate that renowned DC arbitrator Ira Jaffe agreed to take the case. 19 Union members and IHS employees from nursing, lab, administrative, maintenance and social service classifications testified in January through April of 2013. Arbitrator Jaffe rendered a tentative decision on the first employees’ claims, pending a comprehensive settlement, in December of 2014.
The arbitrator’s decision, while not everything that the Union wanted, put the Department of Health and Human Services (DHHS) and IHS on the defensive. They came to realize that, even at a faster pace, it would take 20 to 50 years to resolve this grievance and that the costs would continue to go up.
At first DHHS/IHS made their settlement conditional on what Congress might allocate. This was a non-starter for the union because of the hostile nature of the Congress and unreliability of the budget process. The other delaying factor was that every time the mediator and the union thought that they were close, the DHHS representative had to pass the deal by another Under-Secretary of the Department. Finally, under the watchful eye arbitrator/mediator Jaffe, DHHS/IHS came up with a payout process that everyone could work with and all the powers that had to approve the amount and elements did. Under this agreement, the Union makes IHS protect thousands more workers under the FLSA and compensate those who have worked so many extra hours to provide the best patient care possible. LIUNA’s General President Terry O’Sullivan signed the historic deal on May 22, 2015.