Force Account Labor and Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4507
ApplicantCuyahoga Community College
Appeal TypeSecond
PA ID#035-0E434-00
PW ID#GMP 140419
Date Signed2022-06-01T16:00:00

Summary Paragraph

Cuyahoga Community College (Applicant) requested Public Assistance (PA) funding for compensatory time granted to union employees during campus closures.  During the COVID pandemic, the Applicant converted to a telework approach and closed its campus to the public.  The Applicant compensated its union employees for  regular time salary, benefits, and comp time to disinfect, clean, maintain and secure its campus facilities.  FEMA issued a Determination Memorandum, denying the claimed force account labor (FAL) costs as increased operating expenses ineligible for PA funding.  FEMA also noted that work associated with these FAL costs did not lessen or eliminate an immediate threat to life, public health, or safety and, thus, the work was not eligible as emergency protective measures.  The Applicant appealed.  The Ohio Emergency Management Agency (Grantee) forwarded the appeal with its supporting letter; the Grantee emphasized that, although the campus was closed to in-person learning, it remained in use because essential employees were required to report to work and be present at the campus facilities.  FEMA requested further explanation of the measures performed by employees and all records for the FAL costs claimed.  The Applicant responded, providing payroll documentation, campus maps, and Public Health Orders.  The FEMA Region V Acting Regional Administrator denied the appeal.  FEMA found that the costs claimed were not eligible for PA funding as the costs were not associated with working overtime hours by budgeted employees.  The Applicant submits its second appeal and reiterates its first appeal arguments but seeks compensatory time paid to those employees who performed the work during its March 18 to June 30, 2020 campus closure.

Authorities and Second Appeals

  • Stafford Act § 403(a)(2).
  • 44 C.F.R. §§ 206.225(a)(3), 206.228(a)(2).
  • PAPPG, at 23-24.

Headnotes

  • For emergency work, only overtime labor is eligible for budgeted employees; straight-time labor for budgeted employees is not eligible for reimbursement.
    • Although the Applicant’s labor policy required it to provide compensatory time for the budgeted employees who performed emergency work during the campus closure, the employees were not incurring overtime hours but instead were working straight-time hours which are ineligible for PA funding.

Conclusion

The claimed FAL costs are related to straight-time hours worked by the Applicant’s budgeted employees; they are not associated with overtime labor costs nor are they extraordinary costs for employees called back to work during administrative leave or a regularly scheduled day off to perform eligible emergency work.  Therefore, they are ineligible for PA funding.  Accordingly, this appeal is denied.

 

Appeal Letter

Sima S. Merick                      

Executive Director                                                                 

Ohio Emergency Management Agency

2855 W. Dublin-Granville Rd.                                                                      

Columbus, Ohio 43235-2206

 

Re:  Second Appeal – Cuyahoga Community College, PA ID: 035-0E434-00, FEMA-4507-DR-OH, Grants Manager Project 140419, Force Account Labor and Equipment Costs

 

Dear Ms. Merick:

This is in response to your letter dated February 25, 2022, which transmitted the referenced second appeal on behalf of Cuyahoga Community College (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $876,675.30 for force account labor (FAL) costs to secure, clean and disinfect its campus during its campus closure.  

As explained in the enclosed analysis, I have determined the claimed FAL costs are related to straight-time hours worked by the Applicant’s budgeted employees; they are not associated with overtime labor costs nor are they extraordinary costs for employees called back to work during administrative leave or a regularly scheduled day off to perform eligible emergency work.  Therefore, they are ineligible for Public Assistance funding.  Accordingly, this appeal is denied. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                                                                  Sincerely,

                                                                                                                           /S/

                                                                                                                   Ana Montero

                                                                                                                  Division Director

                                                                                                                  Public Assistance Division

 

Enclosure

cc:  Moises Dugan

Acting Regional Administrator

FEMA Region V

 

Appeal Analysis

Background

On March 31, 2020, a major disaster was declared for the State of Ohio as a result of the ongoing Coronavirus Disease 2019 (COVID-19) pandemic.  Cuyahoga Community College (Applicant), a public institution of higher education, requested $1,707,769.61 in Public Assistance (PA) funding for compensatory (comp) time granted to union employees during campus closures.[1]  As a result of the pandemic, the Applicant converted to a telework approach on March 18, 2020 and closed its campus to the public.  The Applicant compensated its union employees for regular time salary, benefits, and comp time to disinfect, clean, maintain and secure its campus facilities from March 31 to June 30, 2020 as well as during the 2020-2021 school year.  The Applicant submitted supporting documentation with its request, including the predisaster labor agreement (Union Agreement), detailing pay policies for union employees from July 1, 2017 through June 30, 2020.[2]  On October 20, 2020, FEMA issued a Determination Memorandum, denying the claimed force account labor (FAL) costs as increased operating expenses ineligible for PA funding.  FEMA noted that the Applicant’s claimed costs for straight-time labor for budgeted employees to secure, maintain, clean and disinfect its campus facilities did not lessen or eliminate an immediate threat to life, public health, or safety and, thus, were not eligible emergency protective measures.

First Appeal

On November 5, 2020, the Applicant submitted its first appeal.  The Applicant stated that the costs were tied to eligible emergency protective measures because the work eliminated or lessened immediate threats to lives, public health, and safety.  The Applicant also stated that the predisaster Union Agreement met the requirements outlined in FEMA’s Public Assistance Program and Policy Guide because it did not contain a contingency clause subject to Federal funding, was applied uniformly regardless of Presidential declaration, and had set non-discretionary criteria for activating comp time.  The Ohio Emergency Management Agency (Grantee) forwarded the Applicant’s appeal letter with its supporting letter, reiterating the Applicant’s position and stating that campus facilities remained in use because essential employees were required to report in-person to work. 

FEMA requested additional information, including an explanation of the measures performed by the Applicant’s employees from March 18 through June 30, 2020 and all records for the FAL costs claimed.[3]  The Applicant responded, providing payroll documentation, campus maps, and Public Health Orders.[4] 

On October 6, 2021, the FEMA Region V Acting Regional Administrator denied the appeal.  FEMA found that the costs claimed for comp time were not eligible for PA funding as the costs were not associated with working overtime hours by budgeted employees.  FEMA explained that only overtime labor is eligible for reimbursement when an Applicant’s permanent employees perform emergency work.

Second Appeal

On January 7, 2022, the Applicant submitted its second appeal.[5]  The Applicant reiterates its first appeal arguments and states that these employees performed emergency protective measures (deep cleaning, sanitizing, disinfecting, and installing signs and barriers to promote required social distancing) that were outside their normal work duties and necessary to protect students and employees. The Applicant further argues that comp time is a form of overtime pay. The Grantee forwarded the Applicant’s second appeal letter with its letter of support emphasizing that the Applicant is requesting reimbursement for comp time not regular wages.[6]  

 

Discussion

FEMA may provide assistance for emergency protective measures that eliminate or lessen immediate threats to lives, public health, or safety.[7]  The straight-time salaries and benefits of an applicant’s own labor forces (i.e., its budgeted employees) performing emergency work is ineligible.[8]  An applicant’s permanent employees are considered to be budgeted employees.[9]  For emergency work, only overtime labor is eligible for budgeted employees.[10]  FEMA generally determines the eligibility of overtime, premium pay, and compensatory time costs based on the applicant’s predisaster written labor policy.[11]  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 certain criteria.[12]

Here, the Applicant is requesting PA funding for comp time costs related to straight/regular time hours worked by budgeted employees who were required to report to work.  Despite the Applicant’s contention that comp time is a form of overtime, no overtime hours, or costs related to overtime hours, are claimed in the supporting documentation.  The Applicant argues that the comp time should be eligible because Articles 12 and 32 of the Applicant’s Union Agreement set forth procedures for compensating “regular, full-time” employees who report to work during a closure paying normal wages, plus an amount of time off comparatively equal to the amount of time the campus was closed.  In this case, the documentation shows the Applicant incurred costs related to comp time in accordance with its Union Agreement.  However, the documentation does not show that the costs were related to either overtime labor for budgeted employees or extraordinary costs for employees called back to work during administrative leave or a regularly scheduled day off to perform eligible emergency work.[13]  Consequently, even if the employees performed eligible work, associated costs are ineligible for PA funding according to applicable regulations and policy.

 

Conclusion

The claimed FAL costs are related to straight-time hours worked by the Applicant’s budgeted employees; they are not associated with overtime labor costs nor are they extraordinary costs for employees called back to work during administrative leave or a regularly scheduled day off to perform eligible emergency work.  Therefore, they are ineligible for PA funding.  Accordingly, this appeal is denied.

 

[1] Grants Manager Project 140419, Cuyahoga Community College, see COVID19 FEMA Expenses 01 – Streamlined Project Application (completed July 30, 2020).  The Application stated that “[w]hile the College converted to a telework approach from 3/18/2020 until 6/30/2020, the Campus Police and Security, Mailroom, and Facilities and Grounds departments along with other essential staff remained onsite to ensure the safety of the College”.

[2] Agreement Between Cuyahoga Community College (Tri-C) and Ohio Council 8 and Local 2678 of the American Federation of State, County and Municipal Employees, AFL-CIO (Effective July 1, 2017 through June 30, 2020). Article 12 of the Agreement, detailing the hours of work and overtime, provides in part: “Five (5) days of eight (8) hours shall be the standard work week for regular fulltime employees.…When an employee is authorized to work in excess of eight (8) hours, he shall be paid time and one-half (1-1/2) his regular rate of pay for all hours worked in excess of eight (8) in one (1) day . . . .”  Article 32 of the Agreement, describing the policies covering closings, delayed openings or early closings of facilities, and closure reporting requirements for regular, full-time Plant Operations employees and Public Safety officers, provides in part: “These employees who report to work will receive their wages plus an amount of time off comparatively equal to the amount of time the College was
closed. . . . The amount of time off, i.e., ‘comp time’, is determined by the number of hours the College was closed and will be awarded to those who worked their shift that day.  No more than eight (8) hours may be earned as ‘comp time’ . . . . ‘Comp hours’ do not accrue benefits.”

[3] Email from Pub. Assistance Appeals Analyst, FEMA Region V, to Dean, Tri-C (Mar. 15, 2021, 15:43 EST).

[4] Email from Exec. Dir., Tri-C, to Pub. Assistance Appeals Analyst, FEMA Region V (Apr. 12, 2021, 20:32 EST).

[5] Letter from Exec. VP/Treasurer, Admin. & Fin., Tri-C, to Dir., Ohio Emergency Mgmt. Agency (OEMA) (Jan. 7, 2022).  On second appeal, the Applicant revised the amount claimed to $876,675.30 for comp time and benefits paid from March 18 to June 30, 2020 to employees who worked within its Plant Operations & Logistics Unit.

[6] Letter from Exec. Dir., OEMA, to Acting Reg’l. Adm’r., FEMA Region V (Feb. 25, 2022).  The Grantee cites FEMA’s Safe Opening and Operation Policy and PAPPG and reiterates that the measures undertaken by the Applicant were not associated with the employees’ normally scheduled essential functions and that the Applicant’s Union Agreement complies with federal regulations and requires payment of regular wages plus comp time for work during school closure.

[7] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a)(3)(i) (2019).

[8] 44 C.F.R. § 206.228(a)(2)(iii) (stating the straight- or regular-time salaries and benefits of a grantee’s or applicant’s permanently employed personnel are not eligible in calculating the cost of eligible emergency protective measures, except for those costs associated with host state evacuation and sheltering); Public Assistance Program and Policy Guide, FP 104-009-2, at 24 (Apr. 2018) [hereinafter PAPPG].

[9] PAPPG, at 24. Seasonal employees working during the normal season of employment are also considered to be budgeted.

[10]  Id

[11] Id., at 23.

[12] Id., at 25.

[13] Id.  See also FEMA Second Appeal Analysis, Broward Cnty. Sch. Dist., FEMA-4283-DR-FL, at 2 (Oct. 11, 2019) (where the requested costs were not incurred to pay straight- or regular-time salaries and benefits of permanently employed personnel performing emergency work, but rather were extraordinary costs paid for essential employees called back to work from administrative leave to perform eligible emergency work).

Last updated June 8, 2022