First,let's look at the letter from Michael J. Sciotti, Partner of the Hancock & Estabrook Law Firm, Syracuse, N.Y. and leader of the Firm's Labor and Employment practice group.
Mr. Sciotti wrote the letter to Town Supervisor Earle Reed on July 3, 2008 after a meeting between Mr. Sciotti, Mr. Reed and Ms. Fairbrother. Apparently, Ms. Fairbrother did not have an attorney present at this meeting which seems odd. Of course, apparently Mr. Sciotti's law firm doesn't have a secretary because there are no initials at the end of the letter noting the transcriptionist/typist. Hancock & Estabrook must be a low-budget law firm...NOT! Actually, looking at some of the misspellings, we are willing to bet that Attorney Sciotti typed the letter himself. Odd...
Mr. Sciotti starts by listing the three things that determine whether an employee is exempt for purposes of overtime. (1) whether or not the employee was paid on a salary basis (Ms. Fairbrother was); (2) whether or not the employee was paid the proper amount of salary (Ms. Fairbrother was); (3) whether or not the employee's job duties fall into one of the exemptions. Mr. Sciotti states that Ms. Fairbrother's job duties fail to clearly fall into one of the primary exemptions, those being, executive, professional or administrative.
Mr. Sciotti goes on to detail the criteria for each of the exemptions. According to Sciotti, Ms. Fairbrother clearly doesn't fall under the executive exemption because she does not direct the work of two or more other employees and she has no authority to hire.
Again, according to Mr. Sciotti, Ms. Fairbrother doesn't meet the professional exemption because she has no advanced degree, she does not provide work in a specialized area and her work was and still is, rather routine in nature. Hmmm...strange and for that the town is paying $32+ an hour!!!
As far as the Administrative Exemption, Mr. Sciotti states:
This is the closet (his spelling) possibility, but it is clear from the interview that Ms. Fairbrother does not regularly exercise discretion and independent judgment. All overtime exemptions must be proved by the employer and all exemptions shall be narrowly construed against the employer. Therefore, I do not believe that this exemption can be justified.So who is overseeing Ms. Fairbrother's work? Town Supervisor Earle Reed is her supervisor. In fact, Ms. Fairbrother is the only employee that serves at the pleasure of the town supervisor. She can be fired at a moment's notice without cause...she is neither covered by a contract nor does she fall under Civil Service...but does anyone believe that Earle Reed is telling Ms. Fairbrother how to do her job.
According to the Town Clerk, up until the beginning of 2008, Ms. Fairbrother was in charge of doing the town payroll...that job has now been given to the head of personnel. Not bad, Ms. Fairbrother is still making the same hourly rate not doing payroll as she was when she was doing payroll and she still needs to work overtime hours to get the job done!! According to the Observer Dispatch article:
She also will receive paid leave as compensation for overtime she has worked from Jan. 1 of this year.In addition, the town board organizational minutes every year states:
RESOLVED that the Town Board of the Town of New Hartford does hereby authorize the Town Supervisor or Bookkeeper of the said Town to deposit funds not needed for immediate expenditures in the form of interest-bearing Certificates of Deposit, Repurchase Agreements, Treasury Bills and Money Market Certificates with the Official Depositories listed in the official Investment Policy of the Town, which policy is presented herein as a separate Resolution;
RESOLVED that the New Hartford Town Board does hereby authorize the Town Supervisor or Bookkeeper to pay bills/expenses to National Grid, the Mohawk Valley Water Authority, all telephone carriers, to the Town’s designated vendors for all insurance premiums, to the New York State and Local Retirement Systems (Employees’ Retirement System and Police and Fire Retirement System) for employer contributions, without prior final audit by the Town Board;Sounds like Ms. Fairbrother does/did exercise some discretion.
Next, Mr. Sciotti answers the question...What Overtime is Due? According to Mr. Sciotti under state law an employee can attempt to recoup six (6) years of back wages with interest. He goes on to say:
Having spot checked some of Ms. Fairbrother's time sheets it appears that she has made some errors in her calculation. Some of these errors were in her favor and some were in the employer's favor. I recommend that the Town of New Hartford attempt to work out a settlement with her in exchange for a release of all overtime claims under federal and state law...The attorney merely spot checked even after finding errors and then left it up to the town to settle with Ms. Fairbrother?!!! What happened to her meticulous records? According to the OD article:
Town Supervisor Earle Reed said the issue dates back to before his administration, and that when Fairbrother approached him about it, he retained Hancock and Estabrook.So a town employee "approaches" Earle Reed without a lawyer about alleged unpaid overtime pay and Supervisor Reed feels it necessary to run out and hire high-priced "special counsel" in Syracuse although the town has a town attorney and the Dept. of Labor has a phone number clearly listed on their website where one can call for FREE advice and counsel in such matters, not to mention the other resources the town has available to them such as the Association of Towns and FREE Advisory Opinions from the State Comptroller's office. In fact, the town clerk told us that her office has received no lawsuit or Notice of Claim from Ms. Fairbrother. Yet Mr. Reed felt compelled to hire "special counsel". Why?
“She had very meticulous records,” he said. “She did a ton of work on budgets and things like that.”
And just how would Mr. Reed know how much work Ms. Fairbrother did on the budget...Ms. Fairbrother told us herself that Earle Reed never attended any of the budget meetings...it was only her, Frank Basile and an employee from Mr. Basile's office.
According to the Observer Dispatch article:
“That employee should have been paid and compensated and this should not have dragged out this long,” Town Board member Robert Payne said. “We’re just making sure we corrected a wrong.”We also have it on good authority that Ms. Fairbrother never approached the prior administration regarding this matter. It somehow seems strange that she continued working overtime and waited until 2008, two years AFTER Earle Reed took office before she approached him regarding the alleged unpaid overtime!!!
So how much overtime did Ms. Fairbrother claim?
Here is a link to Part 2 if you haven't already read it. Don't miss part 3!
To be continued. Stay tuned...