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Second Appeal Brief
PA ID# 000-UV1CH-00; South Carolina Forestry Commission
PW ID# 1; Highway 31 Fire
Citation: FEMA-2816-DR-SC, South Carolina Forestry Commission,
Highway 31 Fire
Summary: During the period April 22 to May 20, 2009, the South Carolina Forestry Commission (Applicant) fought a wildfire that started as a small woods fire that became the worst wildfire in South Carolina history.
FEMA prepared PW-1 for $600,444 but reduced the total by $114,512 in force account labor when an eligibility review revealed that the Applicant included costs for overtime hours for exempt employees. Section VII(F)(5) of Recovery Policy RP9525.7, Labor Costs-Emergency Work identifies overtime cost for exempt employees as generally ineligible. The Applicant filed a first appeal on June 20, 2011, arguing that exempt employees who are on a mandatory furlough temporarily lose their exempt status and may be paid for overtime hours worked. On July 13, 2012, FEMA Region IV denied the first appeal.
In a second appeal, the applicant pointed out that at the time of the event, the Commission had implemented a mandatory furlough as a cost-saving measure, which, under the Fair Labor Standards Act, disqualifies exempt employees from being paid a straight salary.
Issues: 1. Do exempt employees of a public agency lose their exempt status during a budget-required furlough?
2. Do those formerly-exempt employees qualify for payment of overtime hours worked during the furlough period?
Findings: 1. Yes
Rationale: 29 CFR §541.710(b), Fair Labor Standards Act, as amended [29 U.S.C.A]