Districts Accused Of Shortchanging Workers in Miss.

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Forty-one Mississippi school districts have been accused of failing to provide their workers with mandatory overtime pay totaling millions of dollars. The charges have come in a flurry of recent lawsuits that legal experts say could spark copycat litigation in other states.

The number of hours worked by 1,500 Mississippi teachers' aides, janitors, bus drivers, secretaries, and other employees has been miscalculated by administrators in districts around the state, contends former U.S. Secretary of Agriculture Mike Espy, now a lawyer in Jackson, Miss., who represents several plaintiffs in the suits. Some employees haven't been paid what they were owed in two decades, he said.

"They worked for years and years, sometimes 50, 60, 70 hours a week ... but they were only paid for 40 hours of work," Mr. Espy said last week. "They are very angry and very disappointed."

Mr. Espy predicts that 90 percent of Mississippi's 152 school districts will be involved in an overtime-pay lawsuit within the next six months or so. Already, both of the state's federal district courts are handling several such cases.

If the districts are found financially liable for the back pay, some would be "devastated," said Richard L. Thompson, the state superintendent of education.

"Our state is right now in the worst financial situation it has been in since 1991," Mr. Thompson said. "We're looking at financial cuts to deal with shortfalls in revenue."

Dual Roles

In many cases, employees may not have received overtime pay because they served dual roles in districts and were perceived by administrators to be working two part-time jobs, Mr. Espy said.

In other cases, however, administrators knowingly failed to pay workers the overtime that they should have received, he contended.

For example, many plaintiffs log several hours each morning driving buses, spend their lunch hours working in the cafeteria, then return to finish their bus routes in the afternoons. They may work 50 hours per week, but the districts credit them with only 25 hours on each job—not nearly enough to be paid overtime.

But according to the federal Fair Labor Standards Act, any uncertified employee—usually those making hourly wages—who works more than 40 hours a week is due time and a half, Mr. Espy said. Teachers, principals, and superintendents are not covered by the law because of exemptions for workers who are certified in their professions, serve in managerial positions, or are salaried employees, he added.

Lawyers for the districts, however, argue that the employees in question receive salaries—albeit modest ones—as is required by Mississippi state law, and are therefore not eligible for overtime.

"This has been going on for years, and years, and years, and nobody ever raised questions because these people are being paid salaries," said David Watkins, a lawyer in Jackson, who is defending 15 school districts in the overtime-pay cases and who serves as board attorney for two-thirds of the state's districts.

Nevertheless, Mr. Watkins added, many of the salaried employees in question don't fit perfectly into the exempt categories outlined by the law, a problem that could spell trouble for some districts.

"There are significant liabilities on some school boards as a result of underpayment," Mr. Watkins acknowledged. "Many believed that if they paid salaries, they didn't have to pay overtime. We told them they're wrong."

Settlement Spawns Suits

The first of the most recent lawsuits was filed last summer, following the settlement of a similar, 2-year-old complaint in March.

Twenty- four employees working in the 1,300-student Oktibbeha County district in northeastern Mississippi sued the school system in federal district court for overtime pay. The school district settled and paid the plaintiffs $500,000.

The case, believed to be among the first of its kind in the state, attracted the attention of others in Mississippi. Soon, 21 employees in other districts filed suit. The lawsuits have generally been filed by groups of plaintiffs against a single school district.

If the plaintiffs named in the new suits win, similar litigation may pop up in other states.

Additional lawsuits would be most likely in Southern states that do not allow collective bargaining for public employees, said Michael Simpson, the assistant general counsel for the National Education Association. States with strong unions have likely avoided the problem altogether, he said, through contracts that protect employees against such violations.

"What's unusual in [the Mississippi cases] is the scale of violations," said David J. Strom, a lawyer for the American Federation of Teachers. He added that "it is a pretty long reach to say that these are salaried employees who are exempt from the law. If that's the case, you may be talking about substantial liabilities."

Scouting for Plaintiffs

In the meantime, Mr. Espy and lawyers for two other law firms representing such plaintiffs are looking for other alleged violations around the state.

"We are going out every night into communities and talking about the overtime situation," Mr. Espy said. "We are finding that 80 percent of those who attend meetings are eligible and can file claims."

Attendance at the meetings ranges between 100 and 150 people, he said.

Depending on their jobs and the number of years they worked, the Mississippi plaintiffs should have earned between $6,000 and $40,000 in overtime over the years, Mr. Espy said.

Under the Fair Labor Standards Act, however, plaintiffs can be awarded overtime pay only for work dating back two years, unless they can prove their employers knowingly violated the law, said Charles B. Craver, a professor of labor and employment law at George Washington University in Washington. In that situation, he said, the plaintiffs could be awarded overtime for work completed in the past three years.

The talk of liability is making state legislators nervous.

Lawmakers have already begun considering ways to help districts cover such costs, should they be found responsible, said Mr. Thompson, the state schools chief. Allocating state money would be one solution, but such an effort would probably be limited, as Mississippi is already burdened with other financial obligations, he said.

Currently, the state education department is encouraging all of the districts in the state to conduct audits and write checks to any employees they've shortchanged, Mr. Thompson said.

The state is also conducting workshops throughout Mississippi with the help of the U.S. Department of Labor to clarify the intent of the law and its application in schools.

"These are innocent mistakes, and in the bulk of these situations, people are going to correct the wrongs," Mr. Thompson said.

Lawyers for school districts contend that some of their colleagues on the other side are simply out to make money from the lawsuits. They point to Mr. Espy's firm, which will take as its fee 50 percent of any money awarded to individual plaintiffs.

That fee is reasonable given the great amount of risk and costs involved in the suits, Mr. Espy said.

Vol. 20, Issue 6, Pages 1, 18

Published in Print: October 11, 2000, as Districts Accused Of Shortchanging Workers in Miss.
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