I am pleased to inform you that, on February 10, 2017, Arbitrator Robert Creo issued a favorable decision in connection with NTEU’s national Fair Labor Standards Act (FLSA) grievance with the U.S. Department of Health and Human Services (HHS or agency). NTEU’s grievance alleged that HHS improperly classified program specialists in the Office of Refugee Resettlement (ORR) as exempt from, or not covered by, the FLSA.
ORR specialists ensure that unaccompanied minors who come into the country illegally receive appropriate care until they can be transferred to a responsible relative. Arbitrator Creo conducted an arbitration hearing on August 24–25, 2016, on whether these specialists should be covered by the FLSA. On February 10, 2017, he found that, based on the evidence presented by the union, HHS had improperly classified the specialists as FLSA-exempt. He ordered the agency to reclassify them as non-exempt, and held that the employees are entitled to back pay for the agency’s misclassification.
The arbitrator declined to rule on whether the recovery period for these employees should be two or three years prior to the filing of the grievance. A three-year recovery period is warranted if the union can show that the agency willfully violated the FLSA. He also did not decide whether the employees are entitled to liquidated damages in addition to their back pay. Liquidated damages are presumed appropriate unless the agency can show that it acted in good faith. Arbitrator Creo, instead, remanded these remedial matters to the parties. In the event that the union is unable to obtain adequate relief for employees from the agency, the arbitrator has retained jurisdiction to hear NTEU’s arguments on the appropriate remedy.
Overall, I am pleased that the arbitrator has agreed with NTEU that these employees are entitled to coverage under the federal overtime law. Proper FLSA classification and back pay are solid examples of the value of NTEU representation.