A group of 225 current and former federal correctional employees filed a lawsuit last week alleging that the U.S. Department of Justice has failed to pay them required hazardous duty pay and environmental differential pay. Additionally, the plaintiffs also allege violations of the Fair Labor Standards Act (FLSA). The plaintiffs are all current and former employees at the Allenwood Federal Correctional Complex, which is a sprawling federal prison complex located approximately 165 miles northwest of Philadelphia. The Allenwood Complex is a high-security facility that is known for housing some of the nation’s most violent offenders.
There is a lot to this complaint, however in a nutshell, federal employees are governed by a slightly different set of rules when it comes to overtime and the FLSA. For starters, the Department of Labor (DOL) does not administer the provisions of the FLSA for most federal employees. Instead, the Office of Personnel Management (OPM) serves as the federal agency delegated with administering the FLSA for the vast majority of federal workers, including federal correctional officers.
In fact, the correctional employees’ complaint is rooted in these highly unique OPM regulations [not to be confused with the more common DOL regulations] that require federal employees receive additional pay for working under certain conditions. First, according to the complaint, OPM regulations require hazardous duty pay for employees exposed to hazardous duty or physical hardship. More specifically, OPM regulations, found at 5 CFR §§ 550.901-550-907 require a twenty-five percent (25%) hazardous duty payment be made to federal employees exposed to virulent biologicals as part of their job. The complaint alleges correctional employees are exposed to COVID-19—a virulent biological—as part of their everyday work activities and thus entitled to the 25 percent differential payment.
The correctional employees also allege they are entitled to environmental differential pay between four and eight percent (4%-8%) also due to repeated exposure to COVID-19. Office of Personnel Management regulations found at 5 CFR § 532.511, entitled Environmental Differentials, require a shift differential payment between 4 and 8 percent when federal “employees perform work with or in close proximity to micro-organisms which involves potential personal injury such as death, or temporary, partial, or complete loss of faculties or ability to work due to acute, prolonged, or chronic disease.” The complaint also alleges that working in close proximity with other correctional employees and prisoners entitles the plaintiffs to environmental differential pay.
Finally, the complaint alleges that both hazardous duty pay and environmental differential pay must be included in the correctional employees’ regular and overtime rates of pay, as required by the FLSA. The plaintiffs are seeking all back wages owed, an equal amount of liquidated damages, interest, and attorneys’ fees and costs associated with the litigation.
There is strong likelihood that this will be the first of many similar lawsuits we will see in the coming months related to COVID-19 hazardous duty pay and the FLSA. This lawsuit is very unique since it involves federal employees, however many public agencies provided employees with hazardous duty pay at the outset of the pandemic. As a general rule, the FLSA requires those payments included in the employee’s regular rate of pay. Here is more on that.
Also, here is a copy of the correctional employees’ complaint.