According to the article, both former town supervisors Keiser and Humphreys agree that Ms. Fairbrother was not due the overtime and neither one paid the overtime during their tenure.
We offer the following:
State Comptroller's Opinion 90-11 was written in regards to a question asked by a village regarding the payment of overtime [however, the same applies to a town]. The Opinion says, in part:
"...if the overtime provisions of the FLSA are applicable to the employees in question, they are entitled to overtime compensation as provided in the FLSA...if employees are not subject to these requirements of the FLSA, however, the village may provide either monetary overtime compensation or compensatory time off, but only pursuant to a pre-existing plan."According to a 2007 publication of the U.S. Dept. of Labor:
...certain individuals appointed or selected by such [elected] officials to serve in various capacities are exempt from the Fair Labor Standards Act.Indeed, Ms. Fairbrother was appointed as town bookkeeper in 1984 by then Town Supervisor John Kazanjian and she was also "appointed" by each succeeding town supervisor; a job for which she never had to take a civil service exam to obtain. The job is currently listed under the Oneida County Civil Service Rules as "Exempt" and is the same document that we received when we FOILed a copy of Ms. Fairbrother's job description.
In support of the findings, the State Comptroller's Opinion Letter cited case law...Murray v. Levitt. The decision in that case states in part:
...and we conclude, as a case of first impression, that the board, prior to the performance of any overtime work for which the employee is to be compensated, must adopt an overtime plan setting forth in detail the terms, conditions and remuneration for such employment. Such a plan, by providing for the payment of overtime in an orderly and businesslike manner, rather than by the adoption of a resolution after the fact, would fulfill an obvious purpose of the statute and benefit both the district and its employees, as well as the general public.As part of the 2008 agreement signed between Earle C. Reed as town supervisor and Ms. Fairbrother, she was not only to receive overtime, but also compensatory time for overtime hours worked from January 1, 2008 to December 16, 2008; the date the agreement was signed.
Were we to hold otherwise, we would be encouraging situations such as we have in the present case where petitioner apparently had a free hand in determining when and for how long she would work, and the board merely appropriated funds, after the fact, to further compensate her for her endeavors.
The Comptroller's Opinion Letter also states:
Under the FLSA, a local government may provide compensatory time off in lieu of overtime compensation only pursuant to a collective bargaining agreement or similar type of agreement between the government and representatives of its employees or, with respect to employees not subject to a collective bargaining agreement or the like, an agreement or understanding arrived at between the employer and employee before the performance of the work (29 USCS §207[o]).In both cases, overtime pay and compensatory time, it was necessary for the town and Ms. Fairbrother to have an agreement for payment of overtime PRIOR to the performance of the work.
Ms. Fairbrother and the town had a pre-existing plan for overtime and compensatory time...Resolution #200 of 1999 that states:
...As a civil service exempt employee, the Forty Thousand Dollar ($40,000) salary for Ms. Fairbrother shall encompass all necessary hours to complete bookkeeping and payroll functions and Ms. Fairbrother is not entitled to earn and/or receive overtime and/or compensatory time effective June 7, 1999.The town clerk certified that there was no other town board resolution that "amended, repealed, rescinded or otherwise changed No. 200 of 1999 as it relates to Carol Fairbrother's job duties and associated salary."
The town and Ms. Fairbrother also had another pre-existing agreement, the Employees Handbook that according to the last page of the handbook has to be signed and dated by both the employee and their department head.
Section 702 of the Employee Handbook specifically states:
An employee is not entitled to overtime pay for additional hours worked without proper authorization.According to Attorney Green's invoices he billed the town for over two years [about $3,400] regarding the Fairbrother situation before contacting Attorney Michael Sciotti of the Hancock and Estabrooke law firm for an opinion that cost taxpayers another $2,000.
FLSA Non-covered and Exempt Employees - In accordance with the Fair Labor Standards Act, FLSA non-covered and exempt employees will not be paid for overtime nor receive "compensatory time" for any hours worked in excess of the employee's normal workday or workweek."
Are we to believe that over the course of the two years that Attorney Green billed the town for the Fairbrother matter, neither he nor Ms. Aiello, Town of New Hartford Personnel Technician II, ever consulted the Employees Handbook or researched town board minutes?
Are we to believe that Ms. Fairbrother was not aware of the details in the 1999 Resolution?
How come her supervisor, Earle Reed, allowed her to continue clocking overtime hours right up until the signing of the December 2008 agreement even though the payroll function had been taken away from her sometime in 2007? Shouldn't someone have asked Ms. Fairbrother why the need for so many overtime hours?
Why did it require Ms. Fairbrother working that much overtime when she had a full-time account clerk to help with the bookkeeping, as well as a $150 an hour financial consultant; and what was she doing all that time particularly since Ms. Mowat reported several deficiencies in the way the town's records were maintained?
The real question is...what was the underlying reason for the payment of overtime and compensatory time to Ms. Fairbrother and how does the "quiet" retirement of Ms. Fairbrother fit into the picture?