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Exempt or Salaried Non-Exempt Employee Overtime

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA3216-EM-
ApplicantCity of Lubbock
Appeal TypeSecond
PA ID#303-45000-00
PW ID#Project Worksheet 303
Date Signed2007-10-23T04:00:00

Citation: FEMA-3216-EM-TX, City of Lubbock, PW 303
Summary:As a result of Hurricane Katrina, residents of several Gulf Coast communities were evacuated to the City of Lubbock (Applicant), Texas, and were provided temporary shelter at the Reese Technology Center Complex and the Lubbock Coliseum. PW 303 was written to reflect the costs for labor, equipment, materials associated with the sheltering operations from September 2, 2005, to October 16, 2005. FEMA determined that $71,161 in overtime pay and fringe benefits for exempt employees during sheltering operations were ineligible, since there was no published overtime policy in effect prior to the event. The Applicant’s first appeal contained a copy of an interoffice memorandum issued by the Applicant’s City Manager, dated September 8, 2005, titled “Overtime Pay Related to Emergency Declaration-Salaried Non-Exempt and Exempt Employees.” The memo describes the authorization of overtime to these employees as “temporary change in policy.” FEMA denied the appeal because the Applicant failed to demonstrate that the overtime policy for exempt employees was in effect prior to the event. The Applicant stated in its second appeal that it was “during the ongoing needs of Katrina the Applicant evaluated the need for a policy…” The Applicant states that the September 8, 2005, memorandum was meant to explain the policy but that a formal policy was adopted “around this period of time.”

Issues:Was there a policy in place before the disaster?

Findings:No. The Applicant has not provided documentation of a written, established policy which was in place before the disaster or any payroll history of overtime being paid in any prior event.

Rationale:Recovery Division Policy 9525.7, Labor Costs – Emergency Work, Section 7.D.

Appeal Letter

October 23, 2007

Mr. Richard Patterson
Deputy State Coordinating Officer
State Public Assistance
FEMA-State Joint Field Office
9001 I-H35 North
Austin, TX 78753-3930

RE: Second Appeal-City of Lubbock, PA-ID 303-45000-00 Exempt or Salaried Non-Exempt Employee Overtime, FEMA-3216-EM-TX Project Worksheet (PW) 303

Dear Mr. Patterson:

This is in response to your letter dated October 11, 2006, forwarding the second appeal from the City of Lubbock (Applicant) dated August 11, 2006. The Applicant is requesting the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to reconsider its previous denial of $71,161 under PW 303 for reimbursement of exempt or salaried non-exempt employee overtime labor costs associated with the sheltering operations during the period September 2, 2005, to October 16, 2005. FEMA determined that the overtime costs for these employees were ineligible for Public Assistance funding because the Applicant did not have an overtime policy established before the Hurricane Katrina emergency declaration on September 2, 2005.

On February 27, 2006, the State forwarded the Applicant’s first appeal dated December 27, 2005, and a follow up letter dated January 31, 2006, to FEMA for consideration. The Applicant provided an interoffice memorandum dated September 8, 2005, titled “Overtime Pay Related to Emergency Declaration-Salaried Non-Exempt and Exempt Employees,” which notified managers of a temporary change in overtime policy. In a letter dated April 10, 2006, FEMA denied the appeal because the Applicant was unable to demonstrate that the overtime policy was in effect prior to the event.

In its second appeal, the Applicant referred to a formal policy that “was adopted around this period of time,” and provided a copy of the September 8, 2005 interoffice memorandum. The Applicant stated that because it had not experienced a disaster since 1970, there was no overtime policy for exempt or salaried non-exempt employees. However, after the events relating to Hurricanes Katrina and Rita, the Applicant re-evaluated the need for such a policy.

FEMA Recovery Division Policy 9525.7, Labor Costs – Emergency Work, Section 7.D states that “overtime will be determined according to the applicants written policies in effect prior to the disaster.” The Applicant has not provided written policies or other forms of documentation that establishes evidence that it had a practice of providing overtime to exempt or salaried non-exempt employees prior to the event. Therefore, I am denying the second appeal.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/
s/

Carlos J. Castillo
Assistance Administrator
Disaster Assistance Directorate

cc: William Peterson
Regional Administrator
FEMA Region VI