August 17, 2004
Enid Doggett
Adele Stan
(202) 639-6448

Unions Come Together To Stop Another Assault On Overtime Pay

WASHINGTON, D.C.—The three largest federal employee unions—the American Federation of Government Employees (AFGE), National Federation of Federal Employees (NFFE), and National Treasury Employees Union (NTEU)—filed a joint amici curiae brief today in the U.S. Court of Appeals for the Federal Circuit in support of attorneys at the Department of Justice (DoJ) in the case of John Doe v. United States, No. 03-5075. This case concerns overtime pay for federal government employees under the Federal Employees Pay Act, 5 U.S.C. §5542 (2000)(“FEPA”), an issue of prime importance to the unions and the more than 800,000 federal employees nationwide which they collectively represent.

On June 23, 2004, a three-judge panel of the Court of Appeals overturned a decision of the Court of Federal Claims, which in 2002 had ruled in favor of a class of more than 9,000 current and past DoJ attorneys. The lower court found that the “official policy at the Department of Justice has been to accept overtime work from its attorneys without paying for it,” and held the attorneys were entitled to overtime pay under FEPA. Among the factors that persuaded the court was DoJ’s practice of actually keeping two sets of time records—one recording the overtime and one reflecting a 40-hour work week.

“This is just one more assault on overtime pay, coming on the heels of the Department of Labor’s offensive on the 40-hour work week,” said John Gage, national president of the American Federation of Government Employees (AFGE). "If one agency finds a way around accepted overtime practice, what's to stop another from doing so?"

In reversing the lower court, the court of appeals held that the plaintiffs were not entitled to FEPA compensation because the overtime was not officially ordered or approved in writing as required by an Office of Personnel Management regulation (5 C.F.R. §550.111 (c)). The unions believe that the court erred in its determination and that, if the decision is allowed to stand, it would virtually eliminate FEPA overtime to the detriment of all federal employees and in derogation of the statute’s purpose. Accordingly, the unions’ brief requests a rehearing by the judges who decided the case or in the alternative a rehearing by the court of appeals en banc.

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