Force Account Labor & Equipment Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4586
Applicant	Jefferson County
Appeal Type	Second
PA ID#	245-99245-00
PW ID#	GMP 185265/ PW 99
Date Signed	2023-03-24T16:00:00

Summary Paragraph

Between February 11 and 21, 2021, a severe winter storm resulting in sub-freezing temperatures, snow, and ice caused damage throughout the state of Texas. Jefferson County (Applicant) declared an emergency, initiated its emergency closing policy, and undertook various emergency protective measures. The Applicant’s budgeted employees who were deemed essential were required to report to work during the emergency closure. Relying on its emergency pay policy, the Applicant paid the essential employees premium pay rates for all emergency work hours for all hours worked during the emergency closure. FEMA prepared Project Worksheet 99/Grants Manager Project 185265 to document force account labor (FAL) and equipment used for emergency work. FEMA approved $34,192.21 for its overtime FAL and force account equipment costs to operate an EOC. However, in a Determination Memorandum, FEMA denied the Applicant’s request for premium pay. The Applicant appealed with support from the Texas Division of Emergency Management (Recipient). The FEMA Region 6 Regional Administrator denied the appeal, determining that premium pay for straight-time FAL hours is not eligible for Public Assistance funding. On second appeal, the Applicant provides additional documentation including a judicial order designating essential winter storm employees, a sampling of employee activity logs, a revised spreadsheet detailing employee tasks, and documents distinguishing premium pay and fringe benefits.

Authorities and Second Appeals

• Stafford Act § 403(a)
• 44 C.F.R. §§ 206.225(a), 206.223(a)(1), 206.228(a)(2)(iii)
• PAPPG, at 69, 71.
• Cuyahoga Community College, FEMA-4507-DR-OH, at 3, Broward Cnty. School Dist., FEMA-4283-DR-FL, at 3.

Headnotes

• FEMA may reimburse the local government for extraordinary costs for essential employees who are called back to duty during administrative leave to perform eligible emergency work.
  • FEMA finds the requested costs were incurred to pay the straight- or regular-time salaries and benefits of permanently budgeted personnel performing emergency work and not for extraordinary costs for essential employees called back to duty during administrative leave to perform eligible emergency work.

Conclusion

The claimed FAL costs are related to straight-time hours worked by the Applicant’s budgeted employees. They are neither associated with overtime labor costs nor are they extraordinary costs for essential employees called back to work during administrative leave to perform eligible emergency work. Therefore, they are ineligible for PA funding. Accordingly, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

Between February 11 and 21, 2021, a severe winter storm resulting in sub-freezing temperatures, snow, and ice caused damage throughout the state of Texas. Jefferson County (Applicant) declared an emergency, initiated its emergency closing policy, and undertook various district-wide emergency protective measures. The Applicant’s budgeted employees, deemed essential by a county judge, were required to report to work during the emergency closure. Relying on its emergency pay policy, the Applicant paid the essential employees premium pay for all hours it attributed to emergency work performed during the emergency closure. The Applicant requested Public Assistance (PA) for force account labor (FAL) and equipment (FAE) used to operate an Emergency Operations Center (EOC). The Applicant used the EOC to disseminate information to the public, aid the community, maintain county buildings to prevent pipes from freezing, and to provide public security by patrolling the roads. FEMA approved $34,192.21 for the Applicant’s overtime FAL and FAE costs to operate the EOC during the emergency closure period. However, in a Determination Memorandum (DM) dated February 24, 2022, FEMA denied the Applicant’s request for premium pay that the Agency determined was conducted by its budgeted employees during their regularly scheduled hours.

First Appeal

The Applicant appealed the decision in an April 22, 2022 letter, noting that FEMA evaluates the eligibility of extraordinary costs such as premium pay based on an applicant’s predisaster written labor policy. The Applicant provided its predisaster written labor policy, the judicial county emergency declaration that triggered it, and its Emergency Closing Policy. The Applicant explained its premium pay policy provides that essential workers who are required to work during a county declared disaster will receive premium/extraordinary pay during the emergency closure for all documented time. The Applicant also stated that FEMA has reimbursed it for premium pay in two previous disasters and attached copies of the obligated projects for those disasters. The Applicant stated that because FEMA has previously accepted a portion of the claimed FAL as eligible, and because the Applicant applies premium pay to all eligible hours worked during the declared incident, FEMA should not regard the premium pay hours as straight-time hours. In a May 9, 2022 letter, the Texas Division of Emergency Management (Recipient) supported the appeal.

The FEMA Region 6 Regional Administrator denied the appeal on October 11, 2022. Although FEMA found the Applicant provided documentation that showed the Applicant incurred costs related to premium pay in accordance with its pay policy, it stated the documentation did 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. FEMA also found the Applicant had not demonstrated whether it followed its labor policy by requiring employees to remain at work only if they were previously designated to work during the emergency or were added to the list as necessary by way of an order from the county judge in accordance with the Applicant’s policy regarding emergency closures. FEMA also noted that, although a moot issue, the Applicant’s documentation did not demonstrate the claimed FAL hours were associated with emergency protective measures related to the disaster, and instead listed generic terms such as “Public Safety and Prepare Equipment” to identify the claimed work.

Second Appeal

On December 9, 2022, the Applicant submitted a second appeal, and provided additional documentation, including a judicial order designating essential winter storm employees, a memorandum on how to code the ice storm hours as premium pay, and a copy of a prior FEMA second appeal decision, Broward County School District, which the Applicant states supports reimbursement in its case.[1] The Applicant also states that its employees were called in from administrative leave. On December 15, 2022, the Applicant submitted a supplement to its second appeal stating that the extraordinary costs were reasonable because the Applicant responded to the incident by establishing protective measures to address the clear threat to public health, safety, and infrastructure during the three-day period when the county was closed. The Applicant adds it met the steps outlined in FEMA policy, followed its own pay policies, and provided documentation to demonstrate the eligibility of the requested premium pay claim. The Recipient transmitted the appeal on December 28, 2022, along with a letter of support.

 

Discussion

FEMA is authorized to provide PA for emergency protective measures necessary to save lives, protect public health and safety, and to protect improved property.[2] To be eligible, the work must be required due to an immediate threat resulting from the declared incident.[3] FEMA generally determines the eligibility of overtime, premium pay, and compensatory time costs based on the applicant’s predisaster written labor policy.[4] For emergency work, generally only overtime labor is eligible for budgeted employees; except in limited circumstances, the straight-time of an applicant’s budgeted employees performing emergency work is ineligible.[5] FEMA may reimburse extraordinary costs (such as call back pay and hazardous duty pay) for essential employees who are called back to duty during administrative leave to perform eligible emergency work if costs are paid in accordance with a labor policy that meets certain criteria.[6]

Here, the Applicant is requesting PA for premium pay costs related to straight/regular time hours worked by budgeted employees. Therefore, the costs on appeal are not associated with overtime labor. The Applicant states that its employees who were required to report to work were called in from administrative leave but does not include additional documentation to support that assertion. Unlike Broward County, where FEMA reimbursed extraordinary costs for essential employees called back to duty during administrative leave, the Applicant here does not provide documentation to support that its employees were, for example, sent home and then called back to work. Instead, the documentation in this appeal shows the employees were ordered by a county judge to remain at work during the closure and designated prior to the disaster as emergency workers for the emergency closure.[7] In line with its pay policy, the Applicant’s essential employees remained at work or were pre-designated as being required to work during an emergency closure, a circumstance that is not equivalent to being called back from administrative leave.[8] Accordingly, the Applicant’s claimed premium pay costs are not extraordinary costs for employees called back to work during administrative leave or called back from a regularly scheduled day off to perform eligible emergency work. Therefore, FEMA finds the premium pay costs are not eligible for PA funding.

 

Conclusion

The claimed FAL costs are neither associated with overtime labor costs nor are they extraordinary costs for essential employees called back to work during administrative leave to perform eligible emergency work. Therefore, this appeal is denied.

 

[1] See FEMA Second Appeal Analysis, Broward Cnty. School Dist., FEMA-4283-DR-FL, at 3 (Oct. 11, 2019) [hereinafter Broward Cnty.].

[2] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a), 42 United States Code § 5170b(a) (2018); Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2020).

[3] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3).

[4] Public Assistance Program and Policy Guide, FP 104-009-2, at 69 (June 1, 2020) [hereinafter PAPPG]. FEMA policy sets forth certain requirements that an applicant’s predisaster labor policy must meet, but as those are not at issue in this appeal, they are not addressed.

[5] 44 C.F.R. § 206.228(a)(2)(iii) (stating that the straight-time or regular-time salaries and benefits of a recipient’s or applicant’s permanent employee personnel are not eligible in calculating the cost of eligible emergency protective measures, except for those costs associated with state evacuation and sheltering); PAPPG, at 69-70.

[6] PAPPG, at 71.

[7] In contrast, in Broward Cnty., the Applicant provided time sheets and pay policy documentation that showed the employees were sent home and called back to work; supervisors had to pre-approve and sign off on time sheets for the employees attesting to that fact before the premium pay could be paid.

[8] See FEMA Second Appeal Analysis, Cuyahoga Community College, FEMA-4507-DR-OH, at 3 (June 1, 2022) (denying reimbursement for premium pay for the Applicant’s regular, budgeted employees who reported to campus during a campus closure because, while the Applicant incurred costs in accordance with its pay policy, the documentation did not show 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).