Issue: Qualification: Compensation/Leave/Other; Ruling Date July 20, 2001, Ruling #2001-067; Agency: Department of Game and Inland Fisheries; Outcome: Not Qualified

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Game and Inland Fisheries/ No. 2001-067
July 20, 2001

The grievant has requested a ruling on whether her grievance initiated on March 2, 2001 with the Department of Game and Inland Fisheries (DGIF) qualifies for a hearing. The grievant claims that she lost wages, overtime and compensatory leave, and was terminated due to management’s failure to follow policy regarding overtime and compensatory leave.¹ The grievant also claims that management’s actions were not in compliance with the federal Fair Labor Standards Act (FLSA). This ruling addresses the issue of the grievant’s rights under state policy and procedure.² For the reasons discussed below, this grievance does not qualify for hearing.

The grievant was employed as a Game Warden, which is a law enforcement position. The grievant’s offer of employment was contingent upon her acceptance of the condition that she would be compensated for authorized overtime in either time-and-a-half leave or time-and-a-half pay at the discretion of the agency, and that overtime leave earned may be preserved or used subject to approval by her supervisor. Consistent with this, the agency routinely schedules employees in a manner to reduce compensatory and overtime leave balances.

During her employment with the agency, the grievant accumulated 58.4 hours of overtime leave and 95 hours of compensatory leave. On January 19, 2001, management directed that all Officers in the grievant’s region were to be scheduled to take their earned overtime and compensatory leave by March 31, 2001. The agency stated that this was due to limited funds budgeted for overtime pay as well as a period of decreased work demand. The grievant did not cooperate with the instruction to schedule the time off as directed. Management scheduled a meeting with her on February 21, 2001 to discuss corrective action that would be taken to address this issue. Just prior to the meeting that day, the grievant submitted a letter of resignation, indicating that she had accepted employment with another state agency. Her effective date of resignation was March 10, 2001. Because the grievant still carried her overtime and compensatory leave balances, she was scheduled by her regional manager to take her remaining time off, and did, beginning February 24 until March 10, 2001, her last day of DGIF employment. The grievant was subsequently paid for her remaining compensatory leave balance of 8.9 hours, and her sick and annual leave balances were transferred to her new agency.

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.³Therefore, 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.⁴ This grievance presents no claim or evidence of improper discrimination, or retaliation; therefore, her claims regarding misapplication of policy with respect to the grievant’s termination and the agency’s treatment of her earned overtime and compensatory leave.

For a claim of policy misapplication or unfair application of policy to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy provision, or evidence that management’s actions, in their totality, are so unfair as to amount to a disregard of the intent of the applicable policy. Further, if a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can grant is limited to directing the agency to reapply the policy from the point at which it was misapplied.⁵

Overtime Leave in Lieu of Payment: The grievant asserts that DHRM Policy 3.15, sections II(A) and (B), require that the choice of leave in lieu of payment for overtime and compensatory leave is at the employee’s election, and that DGIF’s scheduling is thus inconsistent with state policy. However, DHRM policy staff has informally confirmed to this Department that the cited policy sections were not intended to convey this; rather, the intent of the policy is that the employee may elect to receive leave rather than pay if the agency agrees. As described above, the grievant accepted her offer of employment contingent on the condition that she would be compensated for overtime in either leave or payment at the discretion of the agency. Thus, the agency’s actions in using its discretion to grant overtime leave in lieu of payment were not inconsistent with policy, nor so unfair so as to amount to disregard of the intent of the applicable policy.

The grievant also asserts that, even assuming leave in lieu of payment was offered and accepted, the agency misapplied policy by requiring her to take time off work to reduce her accrued overtime and compensatory leave against her will. Under state policy, the agency has been granted the discretion to establish schedules for employees according to its perceived needs.⁶ As stated above, DGIF routinely schedules employees off to reduce compensatory and overtime leave balances. In this case, due to limited funds budgeted for overtime pay and to schedule time off during a period of decreased work demand, all Officers in the grievant’s region were scheduled in a manner to reduce their accrued overtime and 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 an agency may unilaterally schedule compensatory leave without violating state policy. During the investigation for this ruling, DHRM confirmed that its position on scheduling compensatory leave has not changed. In addition, DHRM confirmed that it holds the same position on scheduling FLSA-required overtime leave--that is, where DHRM policy (and the FLSA) are silent, there is no violation of state policy should the agency exercise its prerogative to unilaterally schedule the accrued time in a way that reduces the employee’s overtime and compensatory leave bank. Accordingly, this issue does not qualify for hearing.

The grievant also claims that the agency in effect terminated her by requiring her to use her overtime leave for her final two weeks of employment, and to return her badge, vehicle, gun and other agency equipment prior to taking that overtime leave. The grievant asserts that because of her change of status, i.e., termination or transfer to another agency, under these circumstances DHRM policy, requires a lump sum payment to her for her accrued overtime and compensatory leave.

DHRM Policy 3.15, section V, requires a lump sum payment for the full amount of an employee’s accrued overtime leave balance when she changes status through resignation, discharge or transfer to another agency. Importantly, this payment is not triggered by an employee’s announcement of a resignation that will take effect at a future date; rather, the payment is required for any balance remaining as of the effective date of the resignation. Management has submitted payroll and personnel records showing that the grievant was an employee of DGIF through the close of business March 10, 2001. Thus, the effective date of the grievant’s change of status from DGIF was March 10, 2001. As of March 10^th, the grievant had been compensated for all accumulated overtime. Accordingly, this issue does not qualify for a hearing.

Treatment of Compensatory Leave upon Change of Status

To the extent that the grievance challenges the agency’s application of DHRM Policy 3.10, the compensatory leave policy, the grievant has presented no evidence that the agency violated that policy. Policy 3.10 requires a full lump sum payment of accrued compensatory leave upon transfer from one state agency to another.⁷ The grievant was paid a lump sum for the balance of her remaining compensatory leave as of March 10, 2001, the effective date of her resignation and transfer. Accordingly, the grievant was paid in accordance with Policy 3.10, and thus, this issue is not qualified for hearing.

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, she should 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant