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The Honolulu Advertiser
Posted on: Saturday, July 29, 2006

Maui faces second overtime payout

By Peter Boylan
Advertiser Staff Writer


According to the U.S. Department of Labor, the Fair Labor Standards Act establishes minimum wage, overtime pay, record keeping and child labor standards affecting full-time and part-time workers in the private sector and in federal, state and local governments.

Covered nonexempt workers are entitled to a minimum wage of not less than $5.15 an hour and overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek.

Fines of up to $11,000 per violation may be assessed against employers who violate the child labor provisions of the law and up to $1,100 per violation against employers who willfully or repeatedly violate the minimum wage or overtime pay provisions. This law prohibits discriminating against or discharging workers who file a complaint or participate in any proceedings under the act, according to the U.S. Labor Department.

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Less than two years after paying more than $1 million to settle a labor lawsuit with Maui police and firefighters, county taxpayers may again have to pay in an identical lawsuit charging similar miscalculations of overtime pay.

In December 2004, Maui County paid $1.2 million to 122 police and firefighters for overtime the county allegedly failed to pay them.

The county did not admit liability, but settled as a way to avoid incurring greater costs from defending the lawsuit in court.

But in May 2005, 83 police officers and 160 firefighters filed another lawsuit against the county, saying they were not paid for job-related work, such as meal breaks, report writing and cleaning county vehicles, that occurred outside of their regular shifts. Both suits were filed alleging violations of the Federal Fair Labor Standards Act.

"There was controversy the first time but we made a business decision," said Cheryl Tipton, an attorney with the Maui County counsel's office. "This type of litigation is very expensive (to defend)."

Maui Police Chief Thomas Phillips and the State of Hawai'i's Organization of Police Officer's Maui office declined to comment on the pending FLSA lawsuit, citing ongoing litigation.

FLSA lawsuits have cost O'ahu $30 million, and Maui and the Big Island a total of $3 million, in the past two years, including the effort to close the liability loopholes exposed by the suits. In addition, fire and police departments have had to enforce strict work-time accounting practices, hire extra staff to monitor FLSA areas and change officers' work schedules.

All changes have come at an undetermined cost, but law enforcement and public safety officials say the changes will alter the working cultures of the department.

"Some of the rules will penalize our dedicated officers, some of the guys that used to come in early to get ready and officers that like to stay late ... ," said Honolulu police Capt. Frank Fujii. "Time allotted to officers to do their job will be very closely monitored. What everybody needs to understand is that the changes are because we need to be compliant with the law."


Police Chief Boise Correa declined to comment on specific changes directly related to the settlement until he can relay them to his command staff and his frontline officers, Fujii said.

One major change prompted in part by the FLSA settlement is the move from three, 12-hour shifts per week to five, nine-hour shifts per week for more than 1,500 patrol officers beginning Aug. 13.

"FLSA was one factor (in the schedule change), but you still have to run your department and what they've worked out is something that will enable them to stay with the mission but also comply with FLSA," said Steve Nakashima, a labor and employment law attorney with Marr Hipp Jones & Wang who represented the City and County of Honolulu during the FLSA settlement and now represents Maui County in its suit.

Nakashima declined to comment on the FLSA lawsuit before Maui County.

SHOPO O'ahu chapter chairman Detective Alexander Garcia said he has not been briefed on the FLSA changes Honolulu officers face and is awaiting word from the human resources department.

The Honolulu Fire Department also is struggling to deal with the fallout from the settlement and has hired two full-time employees to ensure the department's time accounting procedures comply with federal standards.

Fire Chief Kenneth G. Silva said a strict approval process for overtime will be implemented and training will be made a part of the workday rather than voluntary. Other changes will be made as the command staff works with the union to ensure FLSA compliance.

"In my opinion this is one of the biggest obstacles we're going to have to deal with in my 25 years in the department. It is going to lead to a lot of heartache to get from where we are now to getting our arms around this big thing called FLSA," Silva said in an interview last month. "A lot of the things that we did as a course of our job, not thinking it was going to come back and haunt us. We have to put all these rules in place so that we don't end up in court again. ... It's (going to be) a logistical nightmare and we're not going to allow a lot of the off-duty work."


In March, the city tentatively settled the class-action lawsuit that alleged more than 2,000 Honolulu police officers and firefighters were not properly paid over a three-year period. The suit said 1,500 police officers and 600 firefighters were not properly paid for work-related travel, command briefings before and after shifts, meal breaks, training, and for cleaning and maintaining vehicles.

The lawsuit also said officials improperly calculated overtime, that employees were not compensated for all work associated with their job, and that the city's compensation-time policies violated the FLSA.

The settlement has not been approved by the city council.

In December 2004, Maui and Big Island officials finalized two settlements totaling $3 million to compensate police, firefighters and other public workers for overtime the counties failed to pay them. A total of 221 current and former police officers and firefighters, and other county employees, joined in the class-action suit on the Big Island.

Individuals in that group received payments of $1,500 to $32,500, before lawyers' fees.

The Maui County settlement requires the county to pay $1.2 million to cover similar claims by 122 plaintiffs. The individual employees in that case will receive payments ranging from $2,700 to $34,000.

Reach Peter Boylan at pboylan@honoluluadvertiser.com.