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Second Appeal Brief
PA ID# 131-99131-00; Northampton County, North Carolina
PW ID# 1357; Overtime Labor Policy
Citation: FEMA-1490-DR-NC; Northampton County, North Carolina; PW 1357 Overtime Labor Costs
Cross-reference: Overtime Labor Policy
Summary: On September 18, 2003, Hurricane Isabel caused widespread flooding throughout Northampton County. FEMA determined that $25,915.59 in costs that the Applicant incurred for the overtime labor of its exempt employees responding to the emergency was ineligible. The Applicant appealed the decision, claiming that it had changed its personnel policy in November 2002, and the new policy authorized overtime pay for employees that are generally exempt in the case of a declared state of emergency or disaster. The State agreed that the costs should be eligible in accordance with FEMAs Policy 9525.7 (D), which states that, straight time and overtime will be determined according to the applicant's written policies and labor union contracts in effect prior to the disaster. FEMA denied the appeal, stating that the policy does not specify that the costs would be paid if no declaration is forthcoming, nor does it provide documentation that the Applicant has paid these costs during non-declared incidents. The Applicant has submitted a second appeal, stating that FEMA policy allows reimbursement for costs in accordance with an Applicants pre-disaster policies. The Applicant also asserts that there is no indication that the policy is inconsistent when applied to a Federal award or other activities, and that until the event of Hurricane Isabel, no situation had occurred that required the Applicant to implement the new personnel policy.
Issues: (1) Was the policy in place before the disaster?
(2) Had the policy been applied in situations when Federal funding was not available?
(3) Would the policy be applied uniformly in any declared event?
Findings: (1) Yes. The policy change was implemented in November 2002.
(3) No. The Applicant claims that no emergency or disaster event has been declared since the policy change was made.
(5) No. The documentation provided states that exempt employees will be considered for overtime in the case of a declared emergency.
Rationale: OMB Circular 8-87 Section C (1)(e) requires that the policy be applied regardless of the availability of Federal funding. The policy in question was discretionary, and therefore the costs are ineligible.