Monday, April 6, 2009, 9:05 AM

What is Good for the Goose? The EEOC Finds Itself in Hot Water over Its Overtime Practices

Over the past three years and again this past month, the EEOC has found its own overtime policies and practices being scrutinized by an federal arbitrator reviewing a grievance filed on behalf of EEOC workers in April 2006 by the EEOC's union, the National Council of EEOC Locals No, 216, AFGE/AFL-CIO. One of the issues in the case was the EEOC's reclassification of certain investigators and mediators to exempt status under the FLSA's administrative exemption in the wake of a consultant's report.

The chief complaint discussed by this opinion was the EEOC's failure to give its nonexempt employees [investigators, mediators and paralegals] the choice between extra pay or compensatory time, only giving the employees comp time. After eight weeks of hearings on this issue, the arbitrator determined that the EEOC was correct in its assertion that flex time employees were not eligible for "suffered or permitted" overtime, but that the EEOC should have given its nonexempt investigators, mediators and paralegals the options of extra pay or comp time. Interestingly, in recent years, the EEOC has lost a significant amount of its employees, nearly a quarter of its workforce, with the largest losses from its investigators, mediators and paralegals.

The 83-page arbitration opinion and award is a good resource for FLSA analysis. The opinion contains numerous quotes of EEOC memoranda and policies of interest and painstakingly analyzes the overtime issue under a collective bargaining agreement. This opinion may be read by clicking here.


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