James & Hoffman has a large and varied Wage and Hour practice, representing plaintiffs in individual and class actions under the Fair Labor Standards Act (â€śFLSAâ€ť), Title V of the U.S. Code and a number of other statutes and administrative regulations guaranteeing private and public employees fair and accurate compensation for the work they perform. In the largest of these cases,Â James & Hoffman was brought in as co-counsel by the law firm of Bernstein & Lipsett, P.C., who were litigating the FLSA claims of federal law enforcement personnel at a range of federal agencies.Â While the Bernstein & Lipsett case began with a few plaintiffs in 1990, it has grown to 15,000 law enforcement related plaintiffs at nearly every federal agency. The majority of these claims have now been successfully concluded, including recent settlements on behalf of Marine Enforcement Officers who worked at the United States Customs Service and now at the Department of Homeland Security, and GS-5 and GS-7 Criminal Investigators at the Environmental Protection Agency, the Fish & Wildlife Service, the Naval Criminal Investigative Service, and the Internal Revenue Service.
In early 2010, we reached agreement with DOJ on the settlement amounts for backpay and liquidated damages for the remaining 1811 and 1812 plaintiffs. Pursuant to a new procedure mandated by DOJ, we sent out the proposed settlement amounts for approval by the remaining plaintiffs in those two series, principally IG and IG-like criminal investigators and criminal investigators who worked for the FBI.
The settlement was complicated by the fact that DCIS regularly underpaid its agents for AUO, and claims for the underpayment of AUO have 6 year rather than 2-3 year statute of limitations. After running many calculations on the amount of the unpaid AUO, we made a settlement proposal to DOJ, which decided that DCIS plaintiffs could either accept the FLSA settlement amount or litigate their AUO and the FLSA claims. Most DCIS plaintiffs elected to waive their AUO claim. While this process took several months, once we heard from the DCIS plaintiffs, the settlement was ready for DOJ final approval. After these lengthy negotiations and plaintiffs’ approval of final settlement payouts, DOJ asserted additional last minute objections. First, NCIS, likely prodded by DOJ, elected to recalculate the amount DOJ had informally agreed upon as a settlement for the NCIS plaintiffs on the basis that many of the NCIS plaintiffs were not within the United States and a limited number of other geographical areas covered by the FLSA. (This belated dispute came after we spent nearly two year disputing the exempt status of certain of its GS-12 plaintiffs and negotiating over the amount of AUO worked by NCIS agents within the FLSA time period.). Second, DOJ raised for the first time a requirement that the parties attempt to resolve the attorneys’ fees and costs owed to plaintiffs, which had not been the subject of any prior backpay settlement. Third, DOJ required that plaintiffs list each remaining claim in the case with specificity.
On October 13, 2010, we met with senior officials at DOJ to object to the untimely reduction of the amounts already proffered to certain NCIS plaintiffs and to object to the two new preconditions. On December 13, 2010, we submitted a 47 page memorandum on setting forth the attorneysâ€™ fees and costs as well as a statement of the remaining claims. On January 3, 2011, DOJ objected to various issues in our memorandum, and on January 11, 2011, we gave DOJ a further response in an attempt to bring closure. We also asked for a response to our request at the October 13, 2010 meeting that the NCIS deductions be restored.
DOJ has agreed to reinstate the NCIS deductions and the final agreement was approved the week of May 16, 2011. We anticipate that the checks will be mailed by the end of August.
The Settlement Agreement was signed on June 1, 2011.
We are also working on settlement proposals for the non-1811 criminal investigators who worked at the United States Customs Service (“USCS”) and the Department of Homeland Security (“DHS”), and for the investigators who worked at the Office of Personnel Management (“OPM”).
James & Hoffman will update this information as developments occur.
James & Hoffmanâ€™s Wage and Hour practice is not limited to law enforcement officers or even to public employees. In Heath v. Perdue Farms, James & Hoffman successfully represented a large number of â€śchicken catchersâ€ť in eastern Maryland, Virginia and Delaware who worked for Perdue but were unlawfully treated as independent contractors and not paid for their overtime.
James & Hoffmanâ€™s Wage and Hour practice reflects the firmâ€™s strongly-held belief that all workers â€“ no matter what their job is â€“ deserve a fair and honest wage in return for their labor.