Force Account Labor & Equipment Costs
Appeal Brief
Disaster | 4480 |
Applicant | Town of Ossining |
Appeal Type | Second |
PA ID# | 119-55541-00 |
PW ID# | GMP 154752, PW 476 |
Date Signed | 2022-11-14T17:00:00 |
Summary Paragraph
On March 20, 2020, the President declared a major disaster for New York as a result of the ongoing coronavirus (COVID-19) pandemic. The Town of Ossining (Applicant) requested $26,921.85 in Public Assistance funding for the purchase of materials and supplies, as well as force account labor (FAL) costs incurred in the performance of emergency protective measures. On August 26, 2021, FEMA issued a Determination Memo, denying $9,617.67 of the claimed costs, including $1,750.29 in FAL. FEMA found that the Applicant requested reimbursement for straight-time labor of four of its permanent, budgeted employees, which was ineligible because only overtime labor for permanent employees is eligible for emergency work. On October 26, 2021, the Applicant submitted a first appeal, requesting $8,286.19 of the denied costs. Regarding the FAL costs, the Applicant stated that FEMA incorrectly characterized the work as being performed by four of its permanent, budgeted employees, when in fact the work was performed by an unbudgeted, part-time employee. On June 8, 2022, the FEMA Region II Regional Administrator partially approved the appeal, approving $381.94 for social distancing signs, but denying the FAL costs. FEMA found that the Applicant hired the employee on a permanent basis, so straight-time labor costs were ineligible. On July 29, 2022, the Applicant submitted a second appeal, explaining that the employee was hired as temporary/probationary to perform COVID-19 screenings. The Applicant states the employee’s title was then changed to a budgeted, court attendant position but the FAL claims are only for the period when he was temporary.
Authorities and Second Appeals
- Stafford Act § 403.
- 44 C.F.R. § 206.225(a), 206.228(a)(2)(iii).
- PAPPG, at 23-24.
Headnotes
- For emergency work, only overtime labor is eligible for budgeted employees; straight-time labor for budgeted employees is not eligible for reimbursement.
- The documentation indicates that the Applicant hired the clerk as a permanent (i.e., budgeted) employee. As a result, straight-time labor costs are not eligible.
Conclusion
FEMA finds that the Applicant’s claimed FAL costs are for straight-time labor performed by the Applicant’s budgeted employee. Since only overtime labor costs are eligible for budgeted employees performing emergency work, the Applicant’s claimed FAL costs are ineligible for assistance.
Appeal Letter
Rayana Gonzales
Deputy Commissioner for Disaster Recovery Programs
New York State Division of Homeland Security and Emergency Services
1220 Washington Avenue, Building 7A, Floor 4
Albany, New York 12242
Re: Second Appeal – Town of Ossining, PA ID: 119-55541-00, FEMA-4480-DR-NY, Grants Manager Project 154752, Project Worksheet 476 – Force Account Labor & Equipment Costs
Dear Ms. Gonzales:
This is in response to a letter from your office dated September 27, 2022, which transmitted the referenced second appeal on behalf of the Town of Ossining (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding in the amount of $1,750.29 in Public Assistance funding for force account labor (FAL) straight-time costs.
As explained in the enclosed analysis, I have determined that the Applicant’s claimed FAL costs are for straight-time labor performed by the Applicant’s budgeted employee. Since only overtime labor costs are eligible for budgeted employees performing emergency work, the Applicant’s claimed FAL costs are ineligible for assistance. Therefore, this appeal is denied.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/S/
Ana Montero
Division Director
Public Assistance Division
cc: David Warrington
Regional Administrator
FEMA Region II
Appeal Analysis
Background
On March 20, 2020, the President declared a major disaster for the State of New York as a result of the ongoing coronavirus (COVID-19) pandemic. In response to the event, the Town of Ossining (Applicant) used force account labor (FAL) and force account materials and supplies for emergency protective measures. The Applicant requested $26,921.85 in Public Assistance (PA) funding for the purchase of materials and supplies, as well as for FAL costs.
On August 26, 2021, FEMA issued a Determination Memorandum, partially approving the Applicant’s request. FEMA approved $17,304.18 of the requested costs, but denied $9,617.67, including $1,750.29 in FAL. Regarding the denial of costs for FAL, FEMA found that the Applicant requested reimbursement for straight-time labor of four of its permanent, budgeted employees, which was ineligible because only overtime labor for permanent employees is eligible for emergency work.
On October 26, 2021, the Applicant submitted a first appeal, requesting $8,286.19[1] of the costs denied in FEMA’s determination. Regarding the disputed FAL costs, the Applicant stated that FEMA incorrectly characterized the work as being performed by four of its permanent, budgeted employees, when in fact the work was performed by one unbudgeted, part-time employee hired to fulfill a requirement of the New York State Court System to provide visitor screening at court facilities. The Applicant explained it first hired the employee to the position of intermediate clerk, then to the position of court attendant. The New York State Division of Homeland Security and Emergency Services (Recipient) transmitted the appeal to FEMA, recommending its approval.
On March 4, 2022, FEMA sent the Recipient and the Applicant a Request for Information. Regarding the claimed FAL costs, FEMA requested documentation showing that the Applicant hired the clerk as a temporary employee and to perform COVID-19 measures, such as screening courthouse visitors. FEMA also requested that the Applicant describe with specificity the actual work performed as part of each claimed time entry for the clerk, including how each task related to COVID-19 efforts. On March 24, 2022, the Applicant replied and, in regard to the FAL, provided the clerk’s duties statement, personnel transaction form, and appointment resolution.
On June 8, 2022, the FEMA Region II Regional Administrator partially granted the appeal, approving $381.94 for social distancing signs. Regarding the FAL costs, FEMA found that the Applicant hired the employee on a permanent basis, so straight-time labor costs were ineligible. FEMA noted that the personnel transaction form indicated that the clerk was hired with the civil service status of “permanent.”[2]
Second Appeal
On July 29, 2022, the Applicant submitted a second appeal, explaining that FEMA incorrectly characterized the work as being performed by a permanent, budgeted employee when, in fact, the employee was probationary at the time of his appointment. The Applicant explains that the employee was hired on August 5, 2020, in a temporary/probationary status to perform COVID-19 screenings. His title was then changed to a budgeted, court attendant position on
January 12, 2021. The Applicant noted the straight-time hours claimed are only for the period between August 5, 2020, and September 14, 2020.[3] The Recipient transmitted the appeal to FEMA, recommending its approval.
Discussion
FEMA is authorized to provide funding for emergency protective measures to save lives and protect public health and safety.[4] FEMA’s criteria for reimbursing straight-time labor costs differ depending on the type of employee and whether that employee is performing emergency work or permanent work.[5] For emergency work, only overtime labor is eligible for budgeted (i.e., permanent) employees.[6] For unbudgeted employees, such as temporary employees hired to perform eligible work, both straight-time and overtime labor are eligible.[7]
The Applicant asserts that FEMA incorrectly characterized the work as being performed by a permanent, budgeted employee when, in fact, the clerk was temporary/probationary during the period of August 5, 2020, to September 14, 2020. However, the Applicant’s personnel transaction form indicates that the Applicant hired the clerk on August 5, 2020, in a permanent status. On the form, for the field titled “civil service status,” there are several options, including “probationary,” “provisional,” and “temporary;” however, the field selected is “permanent.”[8] The Applicant does not provide an explanation for this inconsistency.
Instead, the Applicant provides an informal spreadsheet stating that the clerk was hired as probationary and became permanent in 2022.[9] However, probationary is not the same as temporary, but rather relates to an employer observing a new employee’s performance.[10] Despite the Applicant’s assertion and spreadsheet stating otherwise, the documentation indicates that the clerk was hired as a permanent (i.e., budgeted) employee. As a result, only overtime labor for emergency work would be eligible.
Conclusion
FEMA finds that the Applicant’s claimed FAL costs are for straight-time labor performed by the Applicant’s budgeted employee. Since only overtime labor costs are eligible for budgeted employees performing emergency work, the Applicant’s claimed FAL costs are ineligible for assistance.
[1] $6,535.90 in materials and $1,750.29 in FAL.
[2] FEMA First Appeal Analysis, Town of Ossining, FEMA-4480-DR-NY, at 2 (June 8, 2022).
[3] The Applicant provided a spreadsheet indicating that on August 5, 2020, the employee was hired to the position of intermediate clerk in a part-time, probationary status. According to the spreadsheet, on January 12, 2021, the employee was laterally changed to the position of court attendant, also in a part-time, probationary status. Then on January 11, 2022, the employee’s status on the spreadsheet was changed to part-time, permanent.
[4] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 403, Title 42, United States Code (42 U.S.C) § 5170b (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).
[5] Public Assistance Program and Policy Guide, FP 104-009-2, at 23 (Apr. 1, 2018) [hereinafter PAPPG].
[6] Stafford Act § 403(d)(1)(B), 42 U.S.C. § 5170(b)(d)(1)(B); 44 C.F.R. § 206.228(a)(2)(iii); PAPPG, at 24.
[7] PAPPG, at 24.
[8] See Westchester County Department of Human Resources, Personnel Transaction Form (LJ-1) (Aug. 27, 2020).
[9] See Westchester County Civil Service Record (undated).
[10] A probationary period is a time during which someone who has been given a new job is watched to see whether they can do the job well and stay in the position. Macmillan Dictionary, Probationary, https://www.macmillandictionary.com/us/dictionary/american/probationary (last visited Nov. 3, 2022).