July 2007 Decision
Arbitration Victory for HEO Overtime Hours

Decision Overturns CUNY Practice Of Assigning Uncompensated Work Over 35 Hours 
 
An arbitrator has ruled that the PSC contract bars CUNY from regularly scheduling employees in the Higher Education Officer series titles (HEOs) for more than 35 hours a week.  The arbitrator also ruled that the contract allows CUNY to grant compensatory time off to HEOs.  The union had sought straight pay compensation rather than comp time, but the arbitrator rejected that remedy. Nevertheless, the ruling is a significant victory for PSC members and underscores the integrity of the 35-hour week established in the contract.  

The current case is part of a multi-pronged effort the union has pursued to address overtime issues for HEOs, particularly during registration and other busy times. In May, the union won a legal settlement, based on the federal Fair Labor Standards Act (FLSA), that established time-and-a-half overtime pay for eligible HEOs for time worked beyond 40 hours in a week.   

The case originated in a grievance filed at LaGuardia Community College. The July 19, 2007 decision, by arbitrator Howard Edelman, says the Collective Bargaining Agreement “bars CUNY from regularly scheduling HEOs at the College more than 35 hours per week.  It does not bar CUNY from granting compensatory time off to affected employees.” HEOs are non-classroom instructional staff employed in the Higher Education Officer titles.  They most often do counseling or administrative work related to instructional activity. 

"...A solid victory for HEOs,,,,  It puts an end to management’s routine violation of the contract."

“This is a solid victory for HEOs—and for all PSC members, because it puts an end to management’s routine violation of the contract,” said PSC President Barbara Bowen.  “We all owe a vote of thanks to the brave HEOs who stood up and said, ‘Enough!’ The arbitrator’s decision makes it clear that the contract means what it says.  HEOs have a ‘regular work week’ of 35 hours and CUNY cannot assign work that violates contractual limits.”

At LaGuardia, Arbitrator Edelman found that management’s practice of scheduling HEOs to work an additional five hours per week on eight occasions per year during registration periods was a contract violation.  He said, “Surely, this is not a de minimus practice but is a regularly assigned schedule above the 35-hour week….Accordingly, CUNY is directed to grant HEOs time off during registration periods so that they do not work in excess of 35 hours.” 

“This decision...has far- reaching consequences..., [possibly] a monumental shift in both work-time required of all HEOs and HEO compensation."

“This decision, along with the prior settlement of the time-and-a-half lawsuit at LaGuardia, has far- reaching consequences,” said Steve London, the union’s First Vice President and chair of its Contract Enforcement Committee.  “It means there may now be a monumental shift in both work-time required of all HEOs and HEO compensation.  All HEOs have a 35-hour work week, plain and simple.  If HEOs are assigned to work for more than 35 hours, they must receive compensatory time. If during a week, CUNY nevertheless schedules employees covered by the federal Fair Labor Standards Act (FSLA) to work over 40 hours, they must be paid time-and-a-half for work over 40 hours per week.”

Edelman rejected CUNY’s position that it has the right to schedule HEOs for more than 35 hours without compensation.  CUNY maintained it derived authority to assign HEOs to work for more than 35 hours per week from a 1967 Board of Trustees Policy that says that HEOs are “not to have special time or overtime compensation.”  Further, CUNY argued that bargaining history between the parties and Article 15.4 (c), which allows for flexibility in scheduling work, gave it the right to assign uncompensated work beyond 35 hours.  Edelman rejected these arguments as a foundation for CUNY’s practice of ignoring the 35-hour contractual limit. 

Arbitrator Edelman rejected the part of the union’s case that sought straight pay compensation as a remedy for CUNY’s violation of the contract.  He found that while the contract did provide for overtime rates for certain categories of instructional staff,* it was silent on overtime for HEOs in general.  Furthermore, he cited PSC’s past bargaining demands for overtime pay as evidence of the recognition that overtime pay was not already contained in the contract and therefore is a subject of bargaining. 

“It is true that the PSC has tried to bargain for overtime rates, but CUNY has consistently rejected those demands,” said Bowen.  “Instead, management has taken advantage of HEOs’ professionalism and dedication.  Management knows that registrars, financial aid counselors and other HEOs want to do whatever it takes to serve our students.  CUNY has abused that dedication and routinely assigned people to work beyond the contractual limit without offering any compensation at all.  Now that practice has to stop.”   

The union will be issuing guidelines to answer members’ questions and aid HEOs in exercising their contractual right to a 35-hour work week and additional compensation.

This decision has many ramifications, and its application to the varying current practices that exist for HEOs performing work beyond 35 hours will require member participation and careful consideration of individual circumstances.  The union will be issuing guidelines to answer members’ questions and aid HEOs in exercising their contractual right to a 35-hour work week and additional compensation for work assigned beyond contractual limits.

* The contract also provides for overtime rates for the following categories of instructional staff: non-classroom staff performing counseling assignments, Instructors and Assistant and Associate Professors who are members of the librarian staff, Associate and Assistant Registrars and some HEOs performing those duties, HEOs converted from some Business Manager titles and performing Business Manager duties, and College Laboratory Technicians.

Posted August 10, 2007

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May 1, 2007 Lawsuit Settlement
LAGUARDIA CC OVERTIME VICTORY

Last summer, seven Assistant to HEOs and two HEO Assistants filed a federal lawsuit, charging that LaGuardia Community College owed them money for time they were assigned to work beyond the contractually required 35 hours. This spring, they won.

Under the lawsuit settlement, LaGuardia management: 1) agreed to pay the plaintiffs double the amount of back wages they were due for time-and-a-half for work over forty hours; 2) reimbursed plaintiffs’ attorney fees; and 3) agreed that in the future they will comply with the law and pay plaintiffs time-and-a-half after 40 hours of work in a week. As a result of the financial settlement, each plaintiff will receive $2,500.

“While this settlement applies to only these nine plaintiffs,” said PSC First Vice President Steve London, “this trail-blazing victory makes clear that CUNY colleges will have to pay for past violations of federal law, and the union will see to it that the law is enforced so that management has a clear financial incentive to obey the law in the future.”

Financial Counselor Robert Bandelt explained that members in LaGuardia’s Enrollment Services Department decided to take action after seeing discrepancies in treatment. In August 2005, Bandelt saw an advertisement for an enrollment specialist –similar to his own job description as a financial counselor. The ad, Bandelt, told Clarion, specified that overtime pay was offered. “So, the question was raised, why was that position offered overtime, but we weren’t?” His question, unanswered by management, led to the members calling the union and filing a grievance – and then the lawsuit.

“The only way to make management respect the 35-hour week is to force them to do so through the grievance procedure or the courts,” said PSC grievance counselor Donna Gill, herself a HEO at Hunter College. Gill worked with the LaGuardia plaintiffs as they prepared their grievance. “It’s hard for us,” she told Clarion, “because CUNY takes advantage of our professional commitment to our students. But if no one speaks out, our hours become endless.”

Like many other HEOs, those at LaGuardia say they routinely work more than 35 hours. During registration periods, they often work more than 40 hours. Overtime, HEOs say, is common and mandatory.

HEO Chapter Chair Jean Weisman noted that the issue of out-of-control work hours among HEOs – which lead to burnout and problems for family life – has been a priority issue for the PSC for the last several years. “This has taken a lot of hard work and persistence from union leadership, staff and members alike,” she said. “Our efforts are finally starting to bear fruit.”

Similar problems likely exist on other campuses. HEO-series employees who have been assigned overtime without compensation should call PSC Coordinator of Contract Enforcement Cynthia Campos immediately at 212-354-1252.

Posted May, 2007

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