By Doug Livingston
Akron Beacon Journal
AKRON, Ohio — Prompted by a federal investigation, the mayor of Akron has put an end to the illegal, off-the-books tracking of overtime in the city’s police and fire departments.
For more than 30 years, countless overtime hours — presumably tens of thousands — were often never recorded through the city’s formal payroll process, making it impossible for federal officials to get a true accounting of whether employees were being properly compensated.
Instead of formally logging the hours, employees struck side agreements with their immediate supervisors, privately keeping track of what was called “pocket time” in the fire department and “book time” at the police station.
The unofficial overtime was often racked up not for extended street patrols or putting out stubborn house fires but while building relationships with the community on weekends or at night. Because community outreach lacked — and continues to lack — adequate staffing, it automatically triggered overtime.
That’s where the convenience of pocket and book time came in handy. Supervisors with limited man hours would send a police officer or firefighter to a neighborhood meeting or into a low-income apartment building to educate tenants on fire safety. In exchange, the employee was given 1.5 hours off for each hour worked, usually taken during a normal shift.
Pocket and book time gave unit commanders the flexibility to deal with immediate staffing shortages. Overtime was issued automatically for work that fell outside the regular 40 hour week. But when traded in for time off, the overtime made for even less staffing in the end.
“I wish we had 100 community relations officers so we could cover every event. But a city our size, its just not possible,” said Lt. Rick Edwards, a spokesperson in the police department’s public information office, which engages the media and community.
Edwards said there are weekends with no police dedicated to community outreach, at least not without offering overtime.
“In a perfect world we’d have 50 more officers and we wouldn’t have the need to rob Peter to pay Paul,” said Frank Williams, president of the Fraternal Order of Police. “We could attend more community events without having to pay overtime.”
Williams said his policy on book time was simple: it doesn’t exist. He said his union members who agree to the practice run the risk of losing the time altogether because it was never formally tracked.
But there’s no record of anyone getting shortchanged. And no one interviewed by the Beacon Journal — not the mayor’s staff, the police and fire unions or the rank-and-file officers and firefighters — said anyone was forced to take time off instead of receiving overtime pay.
“It was something that was an option. It was never a forced issue,” said one firefighter, who spoke about the illegal practice on the condition of anonymity because he didn’t want to upset his co-workers or his employer. The employee said pocket time, which operated outside of federal law and the labor contract with fire and police unions, let him decide whether to spend extra time with family or be paid more.
‘It’s a workaround’
But the illegal book keeping allowed supervisors to avoid reporting thousands of overtime hours over the years, which might have been more than the law allows at any given time.
That’s because, according to the Fair Labor Standards Act, local governments can only let first responders work 320 hours of overtime before some of it must be taken as vacation or extra pay.
But the city cannot produce an accounting of how many hours over the past 30 years were never recorded, for obvious reasons, or whether the use of pocket and book time artificially inflated the federal cap on overtime, which was added in 1985 to prevent employers from abusing mandatory overtime.
Jason Bristol, an employment attorney in Cleveland, said the federal cap on overtime is probably why supervisors preferred pocket or book time to “comp time,” which fills up after 320 hours.
“It’s a workaround. The thing is, the U.S. Department of Labor gets pretty upset when it’s off the books like this,” said Bristol.
Properly documenting the hours “is the only way you know if you’ve reached the [320-hour] cap,” he said. “The lack of record keeping destroys the department of labor’s or employee’s ability to understand if their comp time is complying with the law.”
Feds investigate
U.S. Department of Labor investigators noticed Akron’s illegal book keeping sometime after December when a newer employee in the fire department said he was routinely asked to use pocket time instead of being paid or logging formal comp time.
The employee, Brodie Sadowski, said he brought this issue to his supervisor and union president in August 2017. By the end of the year, in his first 17 months on the job, Sadowski had logged more than 90 hours of pocket time and not a single hour of comp time, according to a personal time card he provided to the Akron Beacon Journal. Eventually agreeing to be transferred, he grew convinced that pocket time was illegal, so he pressed the issue in December, putting Akron’s human resources department and labor relations director on notice before complaining to the State Employment Relations Board and the U.S. Department of Labor in January.
The mayor outlawed pocket and book time after federal investigators got involved. In a letter dated April 11, the U.S. Department of Labor said the city committed violations of “failure to pay statutory overtime pay.” A month later, administrators paid “back wages” of $5,236.61 to eight firefighters and $28,116.53 to 38 police officers. At a rough average of $37 per overtime hour, that’s nearly 900 hours of unused book and pocket time.
“The City has taken the necessary steps to end the practice,” said Ellen Lander Nischt, the mayor’s spokesperson. “As part of this process, the city has met its obligation to compensate employees who accumulated ‘book time’ or ‘pocket time.’”
Nischt said the mayor stopped the practice as soon as it became known. She added that most of the pocket or book time hours had already been traded for time off, so there’s no way of telling the full scope of the illegal practice.
For its investigation, the U.S. Department of Labor reviewed two years of payroll in the fire department. The city was informed of book time in the police department. In the end, though 46 employees had participated in book or pocket time, the city was let off with a warning.
“If at any time in the future your firm is found to have violated the monetary provisions of the Federal Labor Standards Act, it will be subject to such penalties,” U.S. Department of Labor District Chief George L. Victory wrote, citing a possible civil penalty of up to $1,100 for each violation.
“The Horrigan administration’s primary goal has been to cooperate with the investigation and to ensure ongoing compliance with the federal labor standards — which we have done and will continue to do going forward,” Nischt said. “All City departments must appropriately manage overtime scheduling to ensure proper compliance and budgeting.”
Supervisors must now schedule work without the automatic reliance on unofficial overtime. “We just have to change how we do business a little bit,” said Fire Chief Clarence Tucker, who confirmed that pocket time was around before he was hired 30 years ago.
“Some positions,” the chief went on, “may not fit in a 40-hour work week.”
Copyright 2018 Akron Beacon Journal