As if the Secret Service did not have enough headaches to go around!  Now, the beleaguered agency has been hit with a class action lawsuit filed by information technology and telecommunication specialists, who allege they were not paid for extra work that was not reported/recorded.  The case is entitled Alvarez et al. v. U.S. and was filed in the Court of Federal Claims.

These employees claim that their supervisors disregarded a March 2013 agency issuance that prohibited more than twenty (20) hours of administratively uncontrollable overtime (AUO) per pay period.  Thus, as a direct result, the plaintiffs alleged they had to work additional hours without recording the time and then being paid properly, i.e. overtime.  The Complaint states that the “defendant has routinely and regularly suffered, permitted or required plaintiffs to work more than 20 hours of AUO per biweekly pay period but has not allowed plaintiffs to accurately record such time worked on their time and attendance records.”

Interestingly, the proposed class includes both exempt and nonexempt employees who regularly worked in excess of forty hours per week; the Complaint alleges that the plaintiffs previously were authorized to receive these AUO payments.  This is because, according to their theory, the plaintiffs were responsible for recognizing, without supervision, circumstances which may have compelled them to remain on duty beyond the usual shifts.  (Under the law, truly exempt employees need not be paid overtime, but if there is a Company/agency policy or practice of paying such employees overtime, then their claim is under the policy and not, per se, the law).

The AUO, according to the office of Special Counsel, is theoretically to be used in instances of irregular circumstances in which employee hours become unpredictable, as when Border Patrol  respond to criminal activity near/at the border and need to stay on duty in excess of their usual shift.  In earlier cases, whistleblowers alleged these AUO payments were misused.

The Takeaway

Ordering employees (explicitly or implicitly) to work and not report or record that time is a very bad, and risky, thing to do.  If that comes out, there is no doubt that class certification will be granted and the violation(s) will definitely be viewed as “willful.”  I understand that often labor budgets are tight and there is pressure from “above” to stay within such budgets, but, I caution, not at the risk of violating wage-hour statutes.

It is also not enough to have a policy against working unauthorized or unapproved overtime.  If the work is being done and supervisory personnel know of the work and do not stop its performance, then they are (as is said under the FLSA regulations) “suffering and permitting” (i.e. condoning) the work to be done and then the employer must pay for that time, whether “up front” or within the context of a lawsuit.