Force Account Labor & Equipment Costs

Appeal Brief

Summary Paragraph

During the incident period of September 13 to September 16, 2020, Hurricane Sally created an immediate threat to citizens’ health and safety. Plaquemine Parish (Applicant) performed emergency protective measures and claimed $181,351.77 in FAL costs. FEMA denied $36,264.69 for the remaining FAL straight-time costs for budgeted employees who worked during regularly scheduled hours. The Applicant appealed on December 5, 2022, claiming that per its predisaster labor policy, it was required to pay the straight-time portion of the compensation as “premium pay,” an extraordinary cost as defined in the PAPPG, and an eligible expense. The Governor’s Office of Homeland Security and Emergency Preparedness (Recipient) supported the appeal in its January 24, 2023 transmittal. On April 25, 2023, FEMA found the claimed FAL costs were related to straight-time hours worked by budgeted employees and were not associated with OT labor costs or extraordinary costs and denied the appeal. The Applicant’s June 26, 2023 second appeal reiterates and expands upon first appeal arguments and provides a copy of an email dated Sunday, September 13, 2020, informing all staff that the Applicant’s offices would be closed and only essential employees should report for work on the following Monday and Tuesday. The Recipient supports the appeal. 

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.225(a), 206.228(a)(2)(iii). 
• PAPPG, at 69, 70, 71. 
• City of Beaufort, FEMA-4286-DR-SC, at 4-6; Jefferson Cnty., FEMA-4586-DR-TX, at 3.

Headnotes

• For emergency work, generally only overtime labor is eligible for budgeted employees. Overtime is time worked beyond an employee’s scheduled working hours as defined by the applicant’s predisaster pay policy. Extraordinary costs (such as call-back pay, night-time and weekend differential pay, and hazardous duty pay) for essential employees who are called back to duty during administrative leave to perform eligible emergency work are eligible.
• The costs the Applicant claims on appeal relate to emergency work performed by budgeted essential employees during regularly scheduled hours, for time they were pre-designated to work during an emergency closure. The claimed FAL costs are not associated with essential employees who are called back to duty during administrative leave.

Conclusion

The claimed FAL costs are neither associated with OT 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.

Appeal Letter

Appeal Analysis

Background

During the incident period of September 13 to September 16, 2020, Hurricane Sally impacted Plaquemines Parish (Applicant). The Applicant performed emergency protective measures and claimed $181,351.77 in force account labor (FAL) costs. On September 29, 2022, FEMA issued a Determination Memorandum in which it granted $145,087.08 for costs relating to FAL overtime (OT) and extraordinary costs relating to employees called back to work during administrative leave to perform emergency work during a time they were not regularly scheduled to work. However, FEMA denied $36,264.69 for the remaining FAL straight-time hours as they were associated with budgeted employees who worked during regularly scheduled hours.[1] 

First Appeal 

The Applicant appealed on December 5, 2022 for $36,264.69.[2] The Applicant claimed that per its predisaster labor policy, it was required to pay the straight-time portion of the FAL compensation at issue as “premium pay,” which, it argued, qualified as an extraordinary cost as defined in FEMA’s Public Assistance Program and Policy Guide (PAPPG) and therefore an eligible expense.[3] The Applicant submitted various attachments, including its predisaster labor policy and a prior second appeal decision.[4] The Governor’s Office of Homeland Security and Emergency Preparedness (Recipient) supported the appeal in its January 24, 2023 transmittal.

The Region 6 Regional Administrator denied the appeal on April 25, 2023. FEMA found the Applicant incurred costs in accordance with its pay policy; however, the claimed FAL costs related to straight-time hours worked by budgeted employees and were not associated with OT.[5] FEMA further found that the claimed costs were not extraordinary costs for employees called back to work during administrative leave or a regularly scheduled day off to perform eligible emergency work and were therefore ineligible. 

Second Appeal

The Applicant’s June 26, 2023 second appeal reiterates the Applicant’s assertion that the costs at issue are premium pay, independent and separate from FEMA’s category of OT. However, the Applicant states that in the alternative, the claimed costs constitute OT because under its pay policy, all hours worked during an emergency are unscheduled and unbudgeted. 

Regarding its extraordinary cost argument, the Applicant states that for this disaster, it recalled its essential employees from administrative leave to perform emergency work. The Applicant provides a copy of an email dated Sunday, September 13, 2020, which informed all staff that the Applicant’s offices would be closed due to the approaching storm, and only essential employees were to report to work on the following Monday, September 14, 2020, and Tuesday, September 15, 2020. In an August 17, 2023 transmittal letter, the Recipient supports the appeal. 

Discussion

FEMA is authorized to provide Public Assistance (PA) for emergency protective measures to save lives, protect public health and safety, and to protect improved property.[6] 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.[7] Overtime is time worked beyond an employee’s scheduled working hours as defined by the applicant’s predisaster pay policy.[8] 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.[9]

Here, the Applicant requests that FEMA reimburse the straight-time portion of the compensation the Applicant stated it was required to pay its employees under its pre-disaster pay policy. This includes the normal, budgeted rate of pay for employees that performed emergency work during regularly scheduled hours, including the work performed by budgeted employees that reported to work on September 14-15, 2020. For emergency work, only overtime labor is eligible for budgeted employee hours, which the Applicant argues applies to its straight-time hours worked during an emergency under its pay policy. However, the Applicant’s pay policy does not define the hours worked during an emergency as overtime; instead, it pays overtime for hours worked in excess of the normal scheduled work hours.[10] Therefore, the claimed costs, which are for straight-time hours, are ineligible for PA funding as OT. 

The Applicant also argues its claimed costs are eligible as extraordinary costs of essential employees called back to duty during administrative leave; however, the record on appeal documents that these employees were not placed on leave. Rather, they were essential employees who were informed that government offices would be closed on subsequent dates, but that they were still required to report to work during those subsequent closure dates. This resulted in those employees performing emergency work during their regularly scheduled hours, without ever being “called back” to work.[11] The costs are, therefore, not eligible as extraordinary costs. 

Conclusion

The claimed FAL costs are neither associated with OT 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.