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Force Account Overtime

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1607-DR
ApplicantCity of Lake Charles
Appeal TypeSecond
PA ID#019-41155-00
PW ID#Project Worksheet 685
Date Signed2008-09-02T04:00:00
Citation: FEMA-1607-DR-LA, City of Lake Charles, Force Account Overtime,
Project Worksheet (PW) 685

Cross-reference: Labor Costs

Summary: Following Hurricane Rita, the City of Lake Charles’s (Applicant) declared the period from September 23, 2005, through October 9, 2005, an emergency holiday.

Hourly and salaried employees that worked during this period received holiday overtime pay. FEMA determined that the Applicant’s designation of the emergency holiday period was a discretionary act. Subsequently, FEMA prepared PW 685 to reimburse the Applicant for actual overtime hours worked by its hourly employees.

In its first appeal, submitted March 28, 2006, the Applicant claimed that its personnel policy provides for overtime payment for all work performed during emergency holidays. The Regional Administrator denied the Applicant’s request for reimbursement on October 11, 2007, because the Applicant’s designation of an emergency holiday was discretionary and the actual hours worked qualified as force account straight time. Based on Section 3.4(C) of the Applicant’s personnel policy, the Regional Administrator granted Earned Time Off costs for the Applicant’s salaried supervisors as overtime compensation.

The Applicant submitted its second appeal on February 27, 2008, wherein it reiterated its position in its first appeal and maintained that its declaration of an emergency holiday was not discretionary.
Issues: Is the Applicant’s emergency holiday pay rate eligible under Public Assistance?
Findings: No.

Rationale: Response and Recovery Policy 9525.7, Labor Costs – Emergency Work, dated July 20, 2000

Appeal Letter

September 2, 2008

Colonel Thomas Kirkpatrick (Retired)
State Coordinating Officer
Governor’s Office of Homeland Security and Emergency Preparedness
415 North 15th Street
Baton Rouge, Louisiana 70802

Re: Second Appeal–City of Lake Charles, PA ID 019-41155-00, Force Account Overtime,
FEMA-1607-DR-LA, Project Worksheet (PW) 685

Dear Colonel Kirkpatrick:

This letter is in response to your letter dated May 5, 2008, which transmitted the referenced second appeal on behalf of the City of Lake Charles (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) partial denial of funding for overtime costs associated with emergency protective measures.
Nine days after Hurricane Rita made landfall, the Applicant declared the period from
September 23, 2005, through October 9, 2005, as an emergency holiday. Employees that worked during this period received holiday overtime pay. The Applicant requested reimbursement from FEMA for regular and overtime pay for its hourly and salaried employees. Pursuant to Response and Recovery Policy 9525.7, Labor Costs – Emergency Work, eligible force account overtime labor may be claimed provided that an overtime policy is established prior to the disaster and the policy’s activation is not discretionary. FEMA determined that the Applicant’s designation of the emergency holiday period was a discretionary act as the Applicant’s personnel policy does not establish criteria for declaring emergency holidays. However, actual overtime hours worked during the performance of emergency work are eligible. FEMA prepared PW 685 to reimburse the Applicant for actual overtime hours worked by its hourly employees.

In its first appeal, submitted March 28, 2006, the Applicant claimed that its personnel policy provides for overtime payment for all work performed during emergency holidays. The Applicant requested reimbursement of $581,392 for its hourly employees and $165,447 for its salaried employees. The Regional Administrator denied the Applicant’s request for reimbursement on October 11, 2007, because the Applicant’s designation of an emergency holiday was approved after the disaster was declared. The Regional Administrator determined that Section 3.4(C) of the Applicant’s personnel policy provides for Earned Time Off (ETO) for salaried supervisors as overtime compensation and granted an additional $20,912 for ETO costs.
The Applicant submitted its second appeal on February 27, 2008, wherein it reiterated the claims stated in its first appeal. The Applicant maintained that its declaration of an emergency holiday was not discretionary. The Applicant also reaffirmed that its personnel policy states that employees that work during any holiday shall be paid at an overtime rate of time and a half for each hour worked. The Applicant also argued that overtime for its salaried employees should be eligible for reimbursement.
The Regional Administrator previously reimbursed the Applicant for its salaried overtime expenses in accordance with the Applicant’s personnel policy. FEMA’s Response and Recovery Policy 9525.7, Labor Costs – Emergency Work, states that FEMA will reimburse applicants for the performance of emergency work in accordance with policies that are in place at the time of the disaster. While the Applicant’s policy on “holiday pay” was in effect at the time of the disaster, the Applicant designated an “emergency holiday” after the disaster was declared. Therefore, the Applicant’s policy is not consistent with Response and Recovery Policy 9525.7, Labor Costs – Emergency Work. Accordingly, the Applicant’s request for reimbursement for holiday pay is denied.

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

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: William Peterson
Regional Administrator
FEMA Region VI

Jim Stark
Director
Louisiana Transitional Recovery Office
Last updated February 4, 2020