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Second Appeal Letter
PA ID# 000-UV1CH-00; South Carolina Forestry Commission
PW ID# 1; Highway 31 Fire
March 28, 2013
Major General Robert E. Livingston, Jr.
South Carolina Emergency Management Division
2779 Fish Hatchery Road
West Columbia, South Carolina 29172
Re: Second Appeal–South Carolina Forestry Commission, PA ID 000-UV1CH-00, Highway 31 Wildfire, FEMA-2816-FM-SC, Project Worksheet (PW) 1
Dear General Livingston:
This is in response to a September 20, 2012, letter from your office, which transmitted the referenced second appeal on behalf of the South Carolina Forestry Commission (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $114,512 of funds for overtime hours paid to exempt personnel who engaged in fighting the Highway 31 Wildfire.
On April 22, 2009, the Applicant’s dispatch center received a 911 call regarding a two-acre fire in Horry County. In a matter of hours what started as a small woods fire grew into a large, severe wildfire. At 10:30PM April 22, the Forestry Commission’s Incident Management Team (IMT) arrived on-scene and took over management of the incident. One hundred and thirty Commission employees supported the Incident Commander and the Command and General Staff. FEMA prepared PW 1 for $600,444 for the cost of fighting the fire, but reduced the total by $114,512 in force account overtime labor when an eligibility review revealed that the Applicant included costs for overtime hours for exempt employees.
At the time of the fire, the Forestry Commission had imposed a budget-required mandatory furlough as a cost-saving measure. In a letter dated June 20, 2011, the Applicant appealed FEMA’s reduction of $114,512 in overtime labor claiming that, according to the Fair Labor Standards Act (FLSA), salaried employees lose their exempt status during the period of a mandated furlough, and are eligible during that period to be paid overtime. On July 13, 2012, FEMA denied the Applicant’s first appeal on the grounds that the Applicant’s written policies did not allow for compensating exempt employees for overtime or compensatory time.
The Applicant submitted a second appeal on September 13, 2012, and requested that FEMA reconsider its denial based Section 213 of the FLSA and its implementing regulation at Title 29 Code of Federal Regulations § 541.710(b), Employees of public agencies, which provide that a salaried employee becomes disqualified from being exempt in the workweek that a furlough occurs. The South Carolina Emergency Management Division supported the Applicant’s appeal and forwarded it to FEMA with a letter dated September 20, 2012.
FEMA Recovery Policy RP9525.7 Labor Costs-Emergency Work, does not allow exempt workers from earning overtime doing emergency work. However, U.S Department of Labor guidelines allow an exemption when public employers require employees to take furloughs as a cost-saving measure. According to information provided by the U.S. Department of Labor, 29 CFR § 541.710(b) and the FLSA disqualifies an employee from being exempt in the workweek that a furlough occurs. During the furlough period salaried employees lose their “exempt status” and are paid straight time and overtime for all hours worked. Therefore, the Applicant’s normally exempt employees were subject to the FLSA and the cost of overtime labor during the period of the furlough is eligible for FEMA reimbursement.
I have reviewed the information submitted with the appeal and have determined that the Applicant’s appeal should be granted in full. By this letter, I am requesting that the Regional Administrator take the appropriate action to implement my decision.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206 Appeals.
cc: Major P. May
FEMA Region IV