Issue: Qualification, Compensation/Leave-Involuntary Charging; Ruling Date May 31, 2001; Ruling #2001-050; Agency: Department of Corrections; Outcome: Not qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections/ No. 2001-050

May 31, 2001

The grievant has requested a ruling on whether her December 18, 2000 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that DOC violated policy by forcing her to take compensatory leave at a time not of her choosing. For the reasons discussed below, this grievance does not qualify for hearing.

FACTS

The grievant is employed as a Corrections Officer. The DOC facility where the grievant works has implemented a 10-4 work schedule in which correction officers typically work 10 consecutive 8-hour days and are then off-duty for 4 consecutive days. Employee work schedules are based on a 28-day cycle and employees are routinely awarded compensatory leave to keep the total number of hours worked during any given 28-day cycle from exceeding the level that requires overtime pay. The agency routinely schedules the compensatory leave.

DISCUSSION

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.1 Therefore, claims relating to issues such as the methods, means and personnel by which work activities are carried on and the contents of established personnel policies, procedures, rules and regulations generally do not qualify for hearing, unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation, or discipline may have improperly influenced management’s decision, or whether state policy may have been misapplied.2 The grievant has not claimed the existence of nor presented any evidence of improper discrimination, retaliation, or disciplinary actions; therefore, her claim regarding misapplication of policy is the only issue that will be addressed in this ruling.

For a claim of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

Under state policy, compensatory leave is granted on an hour-for-hour basis when an employee works (1) additional hours in a workweek in which the employee has taken a holiday or leave, but has worked no more than 40 hours; (2) on an official closing day if the employee is designated as an "essential employee"; (3) on a holiday; or (4) on a scheduled day off.3

Under state policy, DOC has been granted the discretion to establish schedules for employees according to its perceived needs.4 DOC has concluded that in order to ensure that facilities are fully manned and that no employee will lose accrued compensatory leave,5 the agency may schedule when Corrections Officers will be allowed to use their accrued compensatory leave. While this practice is not expressly endorsed in state or agency policy manuals, the Department of Human Resource Management (DHRM), the state agency charged with the development and interpretation of state personnel policy, stated in a January 24, 1997 correspondence to the Director of this Department that DOC may schedule compensatory leave without violating state policy.6 Accordingly, this grievance does not qualify for hearing.

APPEAL RIGHTS AND OTHER INFORMATION

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, please notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 Va. Code §2.1-116.06(B).
2 Va. Code §2.1-116.06(A) and (C); Grievance Procedure Manual §4.1(c), pages 10-11.
3 Department of Human Resources Management (DHRM) Policy No. 3.10 (V). Please note that compensatory leave is not an alternative to overtime compensation. The compensatory leave awarded under Policy 3.10 is different from compensatory time under the Fair Labor Standards Act (FLSA). Under the FLSA, compensatory time is "time off at a rate not less than one and one-half hours for each hour of employment for which overtime is required" and is in lieu of overtime compensation. However, compensatory time under the FLSA may be granted only when a law enforcement employee has worked more than 171 hours in a 28-day work period and only if there is an agreement between the employer and the employee to use time rather than compensation. See FLSA Section 7(k), 29 U.S.C. § 207(k). Because the agency does not give compensatory time and the grievant did not work more than 160 hours during the work period, the FLSA is not implicated.
4 DHRM Policy No. 1.25 (III)(A).
5 Compensatory leave is lost if not used within 12 months of when earned. DHRM Policy No. 3.10 IV(B)
6 During the investigation for this ruling, DHRM confirmed that its position on scheduling compensatory leave has not changed -- DOC may schedule compensatory leave without violating policy.