EEOC Willfully Violated Pay Law, Arbitrator Rules

By Steve Vogel

Washington Post Staff Writer

Tuesday, March 31, 2009; A15

The Equal Employment Opportunity Commission, responsible for ensuring that the nation's workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.

The agency's practice of offering compensatory time off to its employees rather than overtime pay amounted to "forced volunteering" and was a knowing violation of the law, according to the ruling.

"The case before me, in my view, demonstrates action that went beyond mere negligence," arbitrator Steven M. Wolf wrote in a decision released last week.

The union representing EEOC employees said the decision lends credence to its frequent complaint that the agency is undermanned and its staff is overworked.

"This overtime ruling against the EEOC is vindication that the 'model employer' should not be exploiting the dedication of its hardworking employees," Gabrielle Martin, president of the National Council of EEOC Locals, said in a statement.

Acting EEOC Chairman Stuart J. Ishimaru said the agency will review how it handles overtime. "Going forward, the agency will examine its overtime practices and make any necessary changes," he said in a statement. "We want to do overtime right."

"I'm sure our HR people are looking at it very closely," said Justine Lisser, a spokeswoman for the agency.

The agency may be subject to paying back wages to employees based on the ruling. Lisser added that there has been "no decision on whether to appeal" the decision.

The ruling stems from a grievance filed by the union in 2006 and involves overtime disputes dating to 2003. Wolf found that the EEOC's practice of paying compensatory time to any employee who worked extra hours did not satisfy the Fair Labor Standards Act.

"With rare exception in this record, the concept of 'requesting' compensatory time was a fiction," Wolf wrote. Employees were pressured to work extra hours but not offered extra pay, according to the arbitrator.

The union charges that the agency is in "continuing violation" of the law. "The unfortunate reality is that EEOC continues its deplorable overtime violations to this day," said Barbara Hutchison, an attorney for the union.

The dispute comes at a time when the agency is handling what it terms an "unprecedented" level of discrimination charges. The EEOC received more than 95,400 charges of job bias in the private sector in fiscal 2008, up 15.2 percent from 2007 and 26 percent from 2006.

But over the past eight years the EEOC has lost about 25 percent of its staff, including investigators and lawyers who handle the cases.

"The EEOC should stop balancing its resource constraints on the backs of its employees," Martin said.

EEOC and union officials have expressed hope that the agency will fare better under the Obama administration than it did during the eight years of George W. Bush's tenure as president, when hiring was often at a standstill.

Martin said that "it is the nation's workers who will continue to suffer until the agency sees increases to its budget and addresses staffing shortfalls."