Force Account Labor

Appeal Brief

Appeal Letter

Appeal Analysis

Background

Between October 3 and October 19, 2016, Hurricane Matthew caused considerable damage throughout Broward County, Florida.  In response, the Broward County School District (Applicant) declared an emergency, placed its employees on administrative leave, and undertook various district-wide emergency protective measures.  The Applicant later recalled some of those employees to 1) secure district-owned and maintained property and equipment, and 2) set up and maintain shelters.  Relying on its emergency pay policy and collective bargaining agreements, the Applicant paid all employees regular pay, and paid employees recalled to perform emergency work regular pay plus additional compensation at a rate equal to two times their regular rate for all hours worked during the emergency period.  This additional pay, known as double-time, was paid both for regularly scheduled hours as well as overtime hours.  FEMA prepared Project Worksheet (PW) 309 to document force account labor (FAL) and equipment used for emergency work.  After reviewing documentation included with the PW, FEMA approved $66,772.81 of the requested $162,221.11 in costs, including $58,096.24 in FAL overtime.[1]  FEMA informed the Applicant via a determination memorandum dated June 2, 2017.

First Appeal

The Applicant appealed by letter dated January 12, 2018.  The Applicant asserted all double-time wages paid for emergency work were eligible for reimbursement.  In its March 7, 2018 letter, the Florida Division of Emergency Management (Grantee) supported the Applicant.  On May 10, 2018, FEMA issued a Final Request for Information.  FEMA requested documentation to support the Applicant’s assertion that FEMA improperly denied funding for regular-time hours incurred while performing emergency work.  The Applicant responded on June 8, 2018, stating that the additional compensation paid to recalled employees during regular hours were extraordinary costs envisioned by and eligible under FEMA policy,[2] and stated its emergency pay policy validated the eligibility of the requested costs.

The FEMA Region IV Regional Administrator (RA) denied the first appeal on December 10, 2018.  The RA determined that force account labor costs associated with regular time for budgeted employees performing emergency work are not eligible for reimbursement, additional pay associated with working regular time hours is not eligible, and the applicant did not demonstrate the additional pay was nondiscretionary.    

Second Appeal

The Applicant submitted its second appeal on February 8, 2019,[3] expanding upon previous arguments.  The Applicant claims the double-time paid for regular-time work during the emergency is equivalent to overtime work and is therefore eligible for funding.   The Grantee supports the Applicant’s argument in its April 5, 2019 transmittal.

Discussion

Force Account Labor

FEMA will not reimburse Applicants for costs relating to straight- or regular-time salaries and benefits for permanent employees of the State, tribal, or local government conducting emergency protective measures, except for those costs associated with host state evacuation and sheltering.[4]  FEMA determines the eligibility of overtime, premium pay, and compensatory time costs based on the Applicant’s pre-disaster written labor policy, provided the policy (1) does not include a contingency clause that payment is subject to Federal funding, (2) is applied uniformly regardless of a Presidential declaration, and (3) has set non-discretionary criteria for when the Applicant activates various pay types.[5]  Extraordinary costs (such as call-back pay, night-time and weekend differential pay, and hazardous duty pay) for essential employees who are called back to duty during administrative leave to perform eligible emergency work are eligible if costs are paid in accordance with a labor policy that meets the criteria above.[6]

In this case, the requested costs were not incurred to pay the straight- or regular-time salaries and benefits of permanently employed personnel performing emergency work, but rather extraordinary costs for essential employees called back to duty during administrative leave to perform eligible emergency work.  Additionally, the Applicant’s labor policy (1) does not include a contingency clause, (2) has been activated in non-declared disasters, and (3) has non-discretionary criteria for the various pay types, as they are based on the union contracts in effect at the time of the disaster.  The Applicant’s extraordinary costs were paid in accordance with its labor policy providing compensation at the “emergency pay” rate stated in their bargaining unit contract in effect at the time of the emergency[7] and FEMA policy on the reimbursement for such extraordinary costs.[8] 

Conclusion

The Applicant’s employees were placed on administrative leave and called back to perform eligible emergency work.  The extraordinary costs associated with this work were paid in accordance with the Applicant’s labor policy, which meets the requirements of FEMA’s force account labor policies.  The appeal is granted.