Overtime Labor Costs

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Desastre	FEMA-1603-DR
Applicant	St. Tammany Parish Sheriff's Office
Appeal Type	Second
PA ID#	103-033FE-00
PW ID#	200
Date Signed	2007-10-16T04:00:00

Citation: FEMA-1603-DR-LA, St. Tammany Parish Sheriff’s Office, PW# 200, Overtime Labor Costs

Summary:

Beginning August 27, 2005, the St. Tammany Parish Sheriff’s Office (Applicant) initiated emergency measures to alleviate immediate threats from Hurricane Katrina. Project Worksheet #200 was written for a total of $1,164,035 in overtime labor costs incurred by the Applicant between August 27 and
September 12, 2005. In a subsequent version, FEMA deobligated $266,076 in standby/on-call time and $43,224 in duplicated fringe benefits because the Applicant’s employees were not performing eligible emergency work.

Issues:

Are the Applicant’s standby/on-call costs related to the performance of eligible emergency work?

Findings:

No.

Rationale:

Section 403 of the Robert T. Stafford Act (42 U.S.C. §5170b), 44 CFR §206.225.

Appeal Letter

Appeal Analysis

BACKGROUND

In response to Hurricane Katrina, the St. Tammany Parish Sheriff’s Office (Applicant) commenced emergency response operations to alleviate immediate threats to the community, including search and rescue, traffic control, evacuations, barricading and security for critical facilities.

The Applicant claimed a total of $1,165,034.96 under Project Worksheet (PW) #200 versions 1 and 2 for overtime labor costs and fringe benefits incurred between August 27 and
September 12, 2005. FEMA deobligated $266,076 under PW #200 version 3 for ineligible standby/on-call time and $43,224 in duplicated fringe benefits.

First Appeal
On December 30, 2005, the State forwarded the Applicant’s first appeal, dated December 6, 2005, to FEMA for consideration. The Applicant, asserted that both the Fair Labor Standards Act (FLSA) per its implementing regulations at 29 Code of Federal Regulations (CFR) §553.222, §785.17 and §785.22, and the Applicant’s own departmental policies, required payment for employee standby/on-call time while assigned to emergency facilities throughout the Parish. Therefore, the incurred costs for emergency standby time/on-call time should be eligible for reimbursement under the Public Assistance (PA) Program.

In a letter dated January 30, 2006, FEMA denied the appeal. FEMA acknowledged that the Applicant had an obligation to follow the FLSA requirements and its own departmental policies regarding the payment for standby/on-call time for its employees. However, the costs for standby/on-call time were not eligible under the PA Program, pursuant to Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), and 44 CFR §206.225. Since the employees were not on duty during the standby/on-call time, they were not performing eligible work for which reimbursement can be made.

Second Appeal
In a letter dated April 25, 2006, the State forwarded the Applicant’s second appeal dated
March 9, 2006. The applicant reasserted its first appeal argument and provided no additional information. The Applicant stated that FEMA should accept the United States Department of Labor’s definition of hours worked (i.e., the FLSA provisions), as well as recognize the unprecedented magnitude of the disaster and grant its request for reimbursement of its standby/on-call labor costs.

DISCUSSION

The Applicant is obligated to pay its employees for standby/on-call time per the requirements of the FLSA implementing regulations at 29 CFR, §553.222, §785.17 and §785.22, and by its departmental policies. However, these are not eligible emergency labor costs that are reimbursable under the PA Program. Section 403 of the Stafford Act allows for reimbursement for performing work essential to saving lives and protecting and preserving property or public health and safety. 44 CFR §206.225 further defines eligible work as that which eliminates or lessen immediate threats to life, public health and safety, and damage to public and private property. Because the employees were not on duty during the standby/on-call time, they were not actually performing eligible work for which reimbursement can be made.

CONCLUSION

The Applicant has not provided documentation which would support a reversal of FEMA’s first appeal decision. No eligible work was performed by the Applicant’s employees during standby/on-call time. Therefore, the appeal is denied.