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Mike Espy, former congressman and secretary of agriculture, gets a little defensive when told about criticism of his latest venture. “Are they saying bad things about the School Litigation Group, or about me?” he asked. That’s not to say that Espy is ashamed of what he’s doing. On the contrary, he said he’s proud that he and his co-counsel who make up the Jackson, Miss.-based School Litigation Group are helping some of the poorest of workers — janitors, cafeteria workers, bus drivers, clerical workers — get overtime pay of which they’ve been wrongly deprived for many years. “It feels good to hand someone who makes $15,000 a year a check for $30,000 or $40,000,” he said. But Espy is sensitive to criticism because the group’s targets are public school districts that are often strapped for cash themselves. The Mississippi cases are part of a national increase in federal court cases seeking overtime under the Fair Labor Standards Act. There has been considerable attention paid to high-profile cases against well-known businesses, such as an $18 million settlement against Starbucks, Shields v. Starbucks, No. 01-06446 (C.D. Calif.); a $90 million verdict against Farmers Insurance Exchange, Bell v. Farmers Ins. Exchange, No. 774013-0 (Alameda Co., Calif., Super. Ct.); and a verdict of nearly $30 million against Radio Shack, Belazi v. Tandy Corp., No. 00CC03817 (Calif. Super. Ct.). Technically, the suits brought by Espy and the School Litigation Group against public schools have nearly doubled the number of Fair Labor Standards Act suits nationwide. Of 3,872 filed in 2002, more than 40 percent — upward of 1,600 — were filed against Mississippi school districts. The figure is misleading because, for procedural reasons, the federal courts in Mississippi have often insisted that school employees who sue as a group do so individually. But the fact remains that the School Litigation Group has sued more than two-thirds of the state’s school districts, on behalf of several thousand school employees. Ninety-six percent of those cases have settled, Espy said. James A. Keith, a partner in Jackson’s Adam and Reese, estimated that the 110 school districts named in the suits have had to pay the plaintiffs $15 million to $20 million. Keith, who represented 45 of the 110 districts, said most workers got $2,000 to $3,000 after attorney fees were deducted. He knows of only two or three who got checks for more than $12,000, he said. Espy said that his group takes a contingency fee of between 40 percent and 50 percent, depending on the complexity of the case. Now the group is taking its act on the Interstate. It has entered into co-operative agreements with attorneys in Alabama, Arkansas, Tennessee, Louisiana, South Carolina and Georgia and has begun filing suits in those states, Espy said. If public schools across the country apply the same lax standards to paying overtime that got Mississippi in trouble — and Espy suspects they do — then the School Litigation Group could go national. Lisa Soronen, a staff attorney for the National School Boards Association, agrees that many U.S. schools have made a habit of certain practices — such as letting bus drivers round out their hours by working a shift in the cafeteria — that may make them vulnerable. Keith said that many schools did not realize that employees being paid out of two separate accounts for two distinct jobs must be paid overtime if their total hours exceed 40 in a week. THE BEGINNING The School Litigation Group first made its mark in Oktibbeha County, a mostly rural area that is home to Mississippi State University. The district is one of Mississippi’s most troubled financially. But the history of the litigation there also suggests that the school districts may not be as innocent as they suggest. Oktibbeha County’s schools have been under state control for at least five years because of chronically low student test scores. They are teetering on the brink of bankruptcy because of the state’s budget woes, according to a February 2002 report in the Jackson Clarion-Ledger. In 1998, Jackson-based solo practitioner Samuel M. Brand Jr. sued the county on behalf of two clerical workers, Dorothy Carlisle and Charlotte Makamson. Brand and his brother, Marc E. Brand, also a Jackson solo practitioner, are widely credited with getting the School Litigation Group off the ground. They have made appearances pro hac vice in many of the Alabama, Arkansas, Georgia, Tennessee and South Carolina cases, as has Espy. Neither brother returned telephone calls requesting comment. In April 1999, the Oktibbeha County School Board rejected a proposed settlement of $150,000 with Carlisle and Makamson, according to an Associated Press report. By the end of 1999, however, the district agreed to a $500,000 settlement with Carlisle, Makamson and 22 other school employees who had joined the suit. Having secured that settlement for his clients, Samuel Brand then joined forces with the school district to sue its insurer. In a Sept. 7, 2001, opinion, Oktibbeha County School District v. Coregis Ins. Co., 173 F. Supp. 2d 541, Judge W. Allen Pepper Jr. of the Northern District of Mississippi ruled that the insurer need not indemnify the district. He wrote: “the Court finds that as early as the late 1980′s, the school board was repeatedly warned, even by the United States Department of Labor, that the district must comply with the overtime provisions of the [act]. … The school board intentionally withheld overtime payments from its employees.” The Brands quickly moved on to other school districts. When the volume of work became too great to handle by themselves, they joined forces with Jackson-based Butler, Snow, O’Mara, Stevens & Cannada, where Espy was then a partner, according to Keith. In September 2000, the Brands and Espy and John McNeill and Phil Buffington of Jackson’s McNeill and Buffington — the nucleus of the School Litigation Group — chartered a plane and held press conferences in five Mississippi cities. The Fair Labor Standards Act gives the group every incentive to move quickly, since it usually allows workers to recover only two years of backpay, no matter how many years they may have been underpaid. That means that school districts that clean up their act at the first word of the group’s ambitions can limit their liability. In the few years since Oktibbeha, the group has fashioned an assembly line, of sorts, for overtime suits against public schools. The group has became “as efficient as we could possibly be,” Espy said. To give itself room for expansion, the group rented a warehouse in Jackson, where it has 20 to 30 employees, including telephone intake specialists, attorneys and legal assistants. The group has developed the expertise to assess quickly whether a claim has merit, to extract useful information from often voluminous work records and to conduct effective field investigations, Espy said. Espy emphasizes that the School Litigation Group has not pressed schools for the maximum amount of damages, going so far as to call the litigation “school friendly.” Keith bristles at the suggestion that the group’s tactics are school-friendly, pointing out that Mississippi’s schools are among the poorest in the nation. The suits have imposed burdens on the time and resources of school administrators over and above the money settlements, he adds. According to U.S. Department of Education data, Mississippi per-pupil expenditures in school year 1999-2000 were lower than all but two other states — Arizona and Utah — depending on how the numbers are interpreted. But Keith readily concedes that his clients were in violation of the federal wage law. One reason, he said, is that school districts are annually required to budget out their labor costs for the coming year. Because they assigned an annual figure for nonteaching staff pay in that budgeting process, schools thought of those workers as salaried and not hourly. He also points to the fact that school districts gave some employees two jobs — as a bus driver and a cafeteria worker, for instance — and paid them out of two separate funds, without realizing that the law required them to aggregate total hours worked. Finally, he said, many of the school districts “just didn’t have good records.” When employees came forward with claims that they had worked unpaid overtime, the districts were in no position to give rebuttal even if they thought the claims lacked merit, Keith stated. Keith said that the lawsuits have left a permanent mark on Mississippi schools, sometimes to the detriment of the plaintiffs. For instance, many employees who work as both bus drivers and cafeteria workers have had to give up one of their jobs. Sometimes the students suffer, he said. Unlicensed assistant teachers, whose overtime must be compensated, used to coach students in after-school athletics. “Now school districts require that only licensed/exempt employees may coach extracurricular activities,” he said. HARD-PRESSED DISTRICTS Henry Arlidge, the school superintendent for Harrison County on Mississippi’s gulf coast, oversees a work force of about 2,000 employees, about half of whom fall into the nonexempt category. He said that, when faced with lawsuits, his district conducted its own review and determined that it owed about $500,000 to some 250 employees. Just over 100 employees pressed on with their lawsuits, insisting that they were owed more. A federal judge agreed, and ordered the district to pay an additional $160,000. Arlidge, whose annual budget is between $60 million and $70 million, said that those outlays put a great strain on the district’s cash flow. He also said that without the option of combining jobs, he’s having a hard time finding bus drivers. In reply, Espy points out that nothing stops districts from continuing to give two jobs to a single employee — they just have to pay time-and-a-half if he or she works an aggregate of 40 hours or more. Espy also disputes the idea that overtime violations were inadvertent. He said that school administrators have repeatedly been warned about the need to observe overtime rules at annual seminars conducted by the Mississippi Department of Education. In some cases, the misconduct is more blatant, he said. Some superintendents have tried to forestall litigation by offering their employees a fraction of what they are actually owed, he claims. In those cases, the School Litigation Group hasn’t hesitated to demand three years of back overtime, as is allowed under the act in especially egregious cases. Espy argues that it is a measure of how school-friendly the group is that they have not invoked a provision of the act that would make the districts liable for 20 years of overtime if federally mandated overtime notices are not properly posted. He claims that many districts posted the notices in teachers’ lounges, but in not in places where their “lowest paid but most loyal” employees would be likely to see them. The group now has more than 6,000 clients in states across the South, Espy claims. One of the items on the group’s new Web site — www.slgcentral.com– is a map of the United States with the group’s toehold states colored in. The surrounding white space, one is led to believe, is territory ripe for conquest.

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