Don't work overtime and expect to get paid unless you get it approved in advance in writing. That's the message sent to federal employees in a recent appeals court ruling.
The ruling came in a long-running class-action lawsuit on behalf of more than 9,000 Justice Department lawyers. The lawsuit contends that lawyers at the department who routinely work more than 40 hours a week are entitled to overtime pay under the 1945 Federal Employees Pay Act.
The lawyers prevailed in the U.S. Court of Federal Claims two years ago. But the department appealed to the U.S. Court of Appeals for the Federal Circuit and got a reversal of the judgment, which held the potential to cost the department millions of dollars in damages and back pay.
There's little dispute that the Justice Department expects its lawyers to work unpaid overtime. The department considers that the lawyers are professionals and that they "should expect to work in excess of regular hours without overtime premium pay," according to the department's manual for U.S. attorneys.
The denial of overtime has caused some concern in the department through the years and has prompted internal meetings to review overtime policy. The department has even acknowledged keeping two sets of records on lawyers. One set showed they worked 40-hour weeks; the second set showed the actual hours worked and was used for evaluating employees and setting fees in litigation with private parties.
But a three-judge panel at the Federal Circuit found that the lawyers were not entitled to overtime pay, basing the decision on a strict reading of the pay law and Office of Personnel Management regulations.
The law stipulates that overtime must be "officially ordered or approved," and the OPM regulation requires that overtime must be approved "in writing."
In the June 23 ruling, judges Timothy B. Dyk, William Curtis Bryson and Randall R. Rader said the Justice Department practice of keeping two sets of books on its lawyers "may indicate official awareness of the overtime worked, but it does not provide prior written authorization or approval of such work."
The judges added, "In holding that the DOJ is not liable for overtime on an inducement theory, we do not wish to be seen as countenancing any effort by DOJ or any other agency to evade the requirements of FEPA [the Federal Employees Pay Act] and the OPM regulation."
The judges also noted that "the problems that this case has exposed" suggest that the Justice Department and other agencies "might do well to reexamine the whole overtime question."
The Justice Department lawyers, who are represented by Williams & Connolly, filed a petition last week for a rehearing of the case by the full Federal Circuit, which has 12 judges.
The petition argues that the three-judge panel threw out 50 years of precedent that protected employees from exploitation. It suggested that the panel's ruling, if allowed to stand, would permit agencies to make an end run around the pay law, knowing that workers would be reluctant to raise questions or appear insubordinate.
"The panel's decision threatens the overtime rights not only of Justice Department attorneys, but of all government employees -- particularly mid-grade executive, administrative and professional employees," the petition said.
"It is foreseeable that other agencies now may follow DOJ's example of demanding overtime work while withholding the written orders or approvals the panel holds necessary to obtain overtime compensation," the petition said.
Other groups might file arguments in the case.
The National Treasury Employees Union, concerned about overtime practices affecting Internal Revenue Service lawyers, plans to file a brief next week calling for the case to be reconsidered, a union official said.
Richard Farlow, a senior employment tax specialist with the small business/self-employment division of the IRS, retired Aug. 3 after more than 35 years of federal service.
Mike Lally, an accountant in the Naval Surface Warfare Center's command evaluation and review office in Crane, Ind., will retire Aug. 31 after 34 years of service. In addition to Crane, Lally served at the Louisville Naval Ordnance Station and Defense Logistics Agency offices in Atlanta and Dayton.
Bruce Nutwell, an information technology specialist in the Office of Naval Intelligence's integration and development department, retired Aug. 2 after more than 36 years of federal service.