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A Connecticut Superior Court judge last month failed to invalidate an arbitration award which found that staff attorneys at the state Commission on Human Rights and Opportunities are being treated as hourly employees and should be paid as such. If not overturned, the arbitration decision entitles CHRO’s otherwise exempt legal staff to overtime pay dating back to 1994. Attorney General Richard Blumenthal’s office, which is representing the state in the labor dispute, wasted no time in appealing Hartford Superior Court Judge Kevin E. Booth’s June 15 decision not to vacate the award. The state’s preliminary statement of issues to the state Appellate Court, filed July 5, challenges the award’s interpretation of the federal overtime exemption for professional employees as “erroneous.” It also questions whether the award violates public policy. NO LONG LUNCHES CHRO attorneys filed a grievance against the state in 1994 after certain staff attorneys were not compensated, either in overtime pay or future time off, for working Veteran’s Day that year in preparation for upcoming trials. The dispute was put to arbitration, and, in his September 1997 award, arbitrator Philip Dunn sided with the union, chiding a CHRO policy which held the agency’s attorneys to a strict 8:30 a.m. to 4 p.m. workday. The state’s position was that the attorneys’ exempt status was purely a statutory determination, and therefore not a matter ripe for arbitration. Dunn, however, labeled the dispute one of “contractual entitlement.” The union conceded that its members were professionals and, on the surface, exempt employees. But Dunn argued that a “key indicator” of salaried status is that such employees are not held to a rigid daily work schedule and can take long lunches or come in late in exchange for working extra hours the day before. CHRO trial attorneys, he wrote, “are not offered the flexibility to come and go as they wish, so long as their work is getting done competently and in a timely manner. Because they are treated as hourly rather than salaried employees as defined by the [federal Fair Labor Standards Act], they are non-exempt as a statutory matter, and they therefore are contractually entitled to overtime compensation,” Dunn concluded. In pitching a compromise in the last paragraph of his award, Dunn noted that all the state would have to do to avoid paying CHRO attorneys for future overtime hours is to install flexibility into their work schedules. But three years later, CHRO attorneys are still required to sign in and out each day, according to Hartford labor attorney Barbara J. Collins, who represented the union before Booth. Collins, of the Law Offices of Barbara J. Collins, said her clients remain open to a resolution that would entitle them to comp time in lieu of overtime pay for extra hours worked. The current system, she maintained, is impractical for attorneys who frequently must work at night and on weekends in preparing for trial in employment-discrimination cases. “You can’t meet with a witness between 9 [a.m.] and 5 [p.m.] because the witness is working,” she said in noting one of the obstacles CHRO attorneys face in complying with their strict 35-hour workweeks. Dunn’s award, which provides retroactive relief running back 30 days prior to the union’s filing its 1994 grievance, would primarily benefit about a half dozen current CHRO staff attorneys who regularly do trial work, according to Collins. She said she is uncertain of the total amount of their back overtime claims. The cost to the state, however “could be relatively sizeable,” she vowed. Union officials could not be reached by press time to provide an estimate of the amount of overtime pay being claimed. NO PUBLIC POLICY VIOLATION In asking Booth to nullify the award, Assistant Attorney General Richard T. Sponzo, who is handling the case for the AG’s office, argued that Dunn exceeded his powers as an arbitrator by interpreting the Fair Labor Standards Act. Dunn, Sponzo contended in the state’s 1997 application to vacate the award, also violated public policy by ordering the state to pay overtime to employees exempt under the FLSA. Neither argument convinced Booth. “The arbitrator in this case is not directly interpreting either the Fair Labor Standards Act or the corresponding state statute,” he wrote. “Rather, he is interpreting a contract which incorporates the language of that act for the purpose of defining the right to overtime.”

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