The Issue The issues are whether Respondent failed to obtain required workers' compensation insurance and, if so, the penalty that should be imposed.
Findings Of Fact Manuel Farinas owns Respondent, which has been in existence since 2001 or 2002. He is an officer of the company, as is his wife. Respondent provides construction services-- specifically, the installation of decorative tiles and stones in residences--as a subcontractor to residential contractors. Prior to forming Respondent, Mr. Farinas performed similar services, but he has never previously owned a corporation such as Respondent. On March 24, 2006, an investigator of Respondent visited a worksite at 6620 Holmberg Road in Coconut Creek. The investigator saw several contractors enter and exit the residence. Among them was Respondent and another man, who were installing stone at the residence. During the course of their work, they went back and forth from the residence to a work van marked with Respondent's name. The investigator approached the two men, who were Mr. Farinas and his assistant, Christopher Crespo. The investigator asked Mr. Farinas for proof of workers' compensation coverage, but he was unable to provide it because Respondent had not obtained any workers' compensation insurance. Clearly, Mr. Farinas was an employee of Respondent. For purposes of withholding taxes and paying Social Security, Respondent treated Mr. Farinas's assistants as independent contractors, issuing them Form 1099s at the end of the year. However, they were clearly involved in the construction industry, although the evidence fails to establish that they were not independent contractors, for the purpose of workers' compensation coverage, prior to 2004. By Amended Order of Penalty Assessment dated April 12, 2006, Petitioner noted that it had issued a stop-work order to Respondent on March 24, 2006, determined that Respondent had failed to obtain workers' compensation insurance, and assessed a penalty of $13,835.37. Attached to the Amended Order is a worksheet that lists a dozen payees on which Petitioner relies in calculating the total penalty. Mr. Farinas candidly testified that the following payees were, from time to time, assistants who helped him install decorative stone and tile: Mr. Crespo, Jahmar Suarez, Michael Sanchez, Roberto Carvahal, Roberto Arquello, Guillermo Gonzalez, Mikel Gonzalez, and Yunier Nunez. The penalty attributeable to these persons totals $3172.10. Mr. Farinas is also a payee on the worksheet. The penalty attributeable to him totals $2554.72. The worksheet lists three other payees: Martineax Stone Service, for which the penalty is $5602.80; "subcontractors," for whom the penalty is $2482.62; and Ana Gonzalez, for whom the penalty is $23.13. However, Martineax was a supplier of stone and tile, not an employee or independent contractor, so Petitioner improperly used the payments to Martineax to calculate the penalty. Ms. Gonzalez was not a stoneworker, but an officeworker, so Petitioner used an excessively high rate to calculate the unpaid premium. "Subcontractors," though, is a legitimate inclusion because, during the January 1 to June 1 period covered by this category, no other listed payee received any payments from Respondent. After reducing the proposed penalty for the amounts of the penalty improperly attributed to Martineax and Ms. Gonzalez, the penalty is $8209.44. However, for the reasons set forth in the Conclusions of Law, Petitioner has failed to prove that the penalty should be based on any payments to independent contractors prior to 2004. Excluding from this adjustment two payments to Martineax (to avoid a double reduction), the portion of the penalty improperly attributed to these pre-2004 payments is $2676.50. The correct penalty is thus $5532.94.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of failing to obtain workers' compensation insurance, imposing a penalty of $5532.94 on Respondent, and maintaining the stop-work order until Respondent complies with all applicable workers' compensation laws. DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Finacial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahssee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahssee, Florida 32399-0307 Colin M. Roopnarine Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael A. Shaffir Carlton Fields, P.A. 100 Southeast Second Street, Suite 4000 Miami, Florida 33131
The Issue The issue is whether Respondent unlawfully failed to obtain workers' compensation insurance coverage for five employees between May 1995 through April 1998 and, if so, what is the proper amount of the penalty.
Findings Of Fact Respondent has been a residential painting subcontractor in Florida for the past 12 years. From May 1995 through April 1998, Respondent provided no workers' compensation insurance coverage for any persons whom he hired to work as painters. Respondent has treated such persons as independent contractors, rather than employees. On April 29, 1998, one of Petitioner's investigators visited a residential job site in the Rotunda development in Englewood. He found two painters working inside a new home that was under construction. Interviewing Respondent, the investigator learned that Respondent was in charge of the painting crew and was supplying the painting labor and material for the house. Respondent stated that he was paid by another contractor, who was paid by the general contractor. Respondent admitted that he paid his crew on an hourly rate for the work that they performed each week. Respondent's testimony at the hearing that he paid his crew by the job, and not a specific hourly rate, is discredited. Dale Keaser, one of the two painters, testified. He has worked for Respondent since August 1996. At all times, Respondent paid Mr. Keaser $10 per hour. Respondent never paid Mr. Keaser by the job, and Mr. Keaser never incurred any expenses in connection with the work, except for occasional use of his truck, for which Respondent reimbursed him for gas. Respondent invariably supplied the materials necessary to do the work. Respondent directed Mr. Keaser what to do and when to do it, and Respondent inspected the work frequently. Mr. Keaser never had an exemption from workers' compensation coverage and never provided Respondent an affidavit attesting to his satisfaction of the criteria defining independent contractors. Respondent paid Mr. Keaser wages of $400 in 1996, $11,095 in 1997, and $3080 in 1998. The premium rate of the National Council on Compensation Insurance for each of these years was, respectively, 32.18 percent, 28.47 percent, and 28.92 percent. The resulting unpaid amount of workers' compensation premium is thus $4178.21. Petitioner has failed to prove by admissible evidence that the other persons working for Respondent were employees.
Recommendation It is RECOMMENDED that Petitioner enter a final order assessing Respondent a penalty of $8356.42, plus any lawful interest. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Patrick Jackey Bert's World of Color 365 South Oxford Drive Englewood, Florida 34223 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers’ compensation coverage for its employees; and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure the payment of workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Respondent operates a painting company in Florida. Respondent began operations in 2014. On August 19, 2016, Kirk Glover, a Compliance Investigator with the Department, investigated a shopping plaza located at 353-367 Cypress Parkway, Kissimmee, Florida. At the site, Investigator Glover observed three individuals painting the exterior of a building. Two of the individuals were actively painting with paint rollers. The third was carrying a bucket of paint. Investigator Glover approached the three individuals and requested their names. The individuals identified themselves as Manuel Espino, Bienvenido Ferreras-Varcas, and Pedro Quinga. The individuals also relayed that they were employed by Respondent. The individuals provided Investigator Glover their rates of pay and length of employment with Respondent. At the final hearing, Investigator Glover testified that his duties for the Department include inspecting businesses to determine whether the business has obtained the required workers’ compensation coverage. Investigator Glover explained that a business with four or more employees that performs construction- related work must have workers’ compensation coverage. Therefore, Investigator Glover believed that Respondent should have secured sufficient workers’ compensation coverage for all three employees at the worksite. After receiving the employees’ names, Investigator Glover searched the Department’s Coverage and Compliance Automated System (“CCAS”) database. CCAS is a Department database that tracks workers’ compensation insurance coverage. CCAS contains data from insurance carriers, as well as any workers’ compensation exemptions filed with the Department. Insurance providers are required to report coverage and cancellation information, which the Department then inputs into CCAS. Inspector Glover initially noted that according to CCAS, the Department did not have on file any request from Respondent for an exemption from workers’ compensation coverage. An exemption is a method by which a business’s corporate officer may exempt himself from the requirements of chapter 440. See § 440.05, Fla. Stat. CCAS also informed Investigator Glover that on the date of his inspection, Respondent had an active employee leasing agreement with FrankCrum, an employee staffing company. Inspector Glover explained that a business is not required to obtain workers’ compensation insurance for its employees if coverage is properly provided by or through an employee leasing policy with another company. Investigator Glover contacted FrankCrum. FrankCrum relayed that only one employee, Edwin Perez, was covered under its leasing arrangement with Respondent. Conversely, none of the three individuals Investigator Glover found at the worksite (Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga) were covered by the employee leasing policy. After determining that neither CCAS nor FrankCrum had record of any workers’ compensation coverage for the three individuals he found at the worksite, Investigator Glover contacted Respondent’s owner-of-record, Joseph Iturria. In the ensuing conversation, Mr. Iturria verified that Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga were all Respondent’s employees on the date of the inspection. At the final hearing, Mr. Iturria testified that as of August 19, 2016, Mr. Espino and Mr. Ferreras-Varcas had worked for Respondent for a few months, while Mr. Quinga had worked for Respondent for one or two days. On August 19, 2016, based on the findings of his investigation, Investigator Glover issued a Stop-Work Order to Respondent. With the Stop-Work Order, Investigator Glover served a Request for Production of Business Records for Penalty Assessment Calculation. The Department requested several categories of business records from Respondent for the period of August 20, 2014, through August 19, 2016. The requested documents pertained to: employer identification, payroll documents, account documents, disbursements, workers’ compensation coverage, professional employer organization, temporary labor service, exemptions, subcontractors, and subcontractor’s workers’ compensation coverage. Thereafter, Respondent submitted several business records to the Department. These business records included Mr. Iturria’s personal tax return for 2014, Respondent’s corporate tax return for 2015, and Respondent’s corporate bank statements for 2016. Based on its investigation, the Department determined that Respondent failed to secure sufficient workers’ compensation coverage for its employees, in violation of chapter 440. Therefore, the Department calculated a penalty for Respondent. The Penalty Calculation: To calculate the appropriate penalty for Respondent’s failure to secure adequate workers’ compensation coverage for its employees, the Department first ascertained Respondent’s period of non-compliance. In determining this period of non-compliance, the Department referred to Florida Administrative Code Rule 69L-6.028(2), which provides that: The employer’s time period or periods of non- compliance means the time period(s) within the two years preceding the date the stop- work order was issued to the employer within which the employer failed to secure the payment of compensation pursuant to Chapter 440, F.S., and must be either the same time period as set forth in the business records request for the calculation of penalty or an alternative time period or period(s) as determined by the Department, whichever is less. Based on the instructions set forth in rule 69L-6.028(2), the Department determined that Respondent’s period of non-compliance was August 20, 2014, through August 19, 2016, which was the time period for which the Department requested business records from Respondent. After determining Respondent’s period of non- compliance, the Department next calculated the penalty it should impose upon Respondent. In accordance with section 440.107(7)(d)1., the penalty the Department must assess against an employer who has failed to obtain workers’ compensation coverage is: a penalty equal to 2 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during periods [of non- compliance] within the preceding 2-year period or $1,000, whichever is greater. Therefore, the Department reviewed the business records Respondent provided to determine the amount of Respondent’s payroll during the period of non-compliance. Initially, the Department excepted from the period of non-compliance the time period from September 12, 2014, through March 14, 2015. For these dates, Respondent produced proof that it had secured a valid workers’ compensation insurance policy for its employees. For the remaining period of non-compliance in 2014 (August 20 through September 11), the only relevant documentation Respondent presented for the Department’s consideration was Mr. Iturria’s personal tax return with a schedule C form for an entity called Renew Painting and Renovation, LLC. However, Renew Painting and Renovation, LLC, is a separate business from Respondent. Consequently, Respondent did not provide sufficient records for the Department to accurately determine Respondent’s payroll for August 20 through September 11 (the period of non- compliance in 2014). For the remaining period of non-compliance in 2015 (March 15 through December 31), Respondent provided the Department a copy of its 2015 corporate income tax return. This tax return listed the salaries and wages Respondent paid in 2015. Using this document, the Department was able to prorate Respondent’s employee salaries and taxes paid and determine an appropriate payroll for Respondent’s employees in 2015. With no other records from Respondent, the Department decided to use these 2015 tax figures in lieu of the alternative which would have been to impute Respondent’s gross payroll for 2015. See § 440.107(7)(e), Fla. Stat. For the period of non-compliance in 2016 (January 1 through August 19), Respondent submitted to the Department copies of corporate bank statements. However, Respondent did not provide the images of any checks it wrote in 2016. Without the check images, the Department was not able to determine the purpose of each payment (e.g., wages, materials, expenses, etc.), or how much it paid its employees. Therefore, the Department could not determine Respondent’s payroll for the period of non- compliance in 2016. Furthermore, although Respondent had entered an employee leasing policy with FrankCrum, none of the three individuals Investigator Glover found at the worksite were covered by the leasing arrangement. As a result, all of the 2016 period of non-compliance was included in the penalty audit period. As discussed above, for the two periods of non- compliance (August 20 through September 11, 2014, and January 1 through August 19, 2016), Respondent failed to provide business records sufficient to enable the Department to determine Respondent’s payroll or the actual wages it paid its employees. Consequently, the Department exercised its option to impute Respondent’s weekly payroll. To calculate the imputed weekly payroll for each employee, the Department determined the statewide average weekly wage effective at the time of the Stop- Work Order for each identified employee and corporate officer, multiplied by two. See § 440.107(7)(e), Fla. Stat., and Fla. Admin. Code R. 69L-6.028(3)(a). The Department imputed the payroll for all three employees Investigator Glover observed at the worksite on August 19, 2016 (Mr. Espino, Mr. Ferreras-Varcas, and Mr. Quinga), for all periods of non-compliance. Using records Respondent filed with the Florida Division of Corporations, the Department identified Respondent’s corporate officers as Joseph Iturria, Craig Foss, and Julio A. Feliciano, Jr. Therefore, the Department also included these three individuals in the imputed portions of the penalty during all periods of non-compliance for which they were registered as corporate officers but did not hold active workers’ compensation exemptions. See Fla. Admin. Code R. 69L-6.028(3)(b). On September 6, 2016 (after the period of non- compliance), Mr. Iturria and Mr. Foss acquired workers’ compensation exemptions from the Department. Pursuant to section 440.05(5), workers’ compensation exemptions become effective when issued by the Department or 30 days after the Department receives the applications, whichever occurs first. Thus, workers’ compensation exemptions are not retroactive. Consequently, the workers’ compensation exemptions Mr. Iturria and Mr. Foss acquired after the issuance of the Stop-Work Order had no impact on the imputed payroll for the period of non- compliance. The business records Respondent provided to the Department were not sufficient to enable the Department to identify the exact type of work Respondent’s employees performed during the period of non-compliance. Investigator Glover observed that the three individuals working for Respondent on August 19, 2016, were painting. According to the Scopes Manual issued by the National Council on Compensation Insurance, Inc. (“NCCI”), class code 5474 is the general painting classification.2/ Therefore, the Department applied class code 5474 to all Respondent’s employees and officers for the entire penalty period. See Fla. Admin. Code R. 69L-6.028(3)(d) and 69L-6.021(2)(jj)(painting is classified as “construction activity”). Accordingly, to calculate the premium amount for the workers’ compensation insurance Respondent should have paid for its employees, the Department applied the manual rates corresponding to class code 5474. Thereafter, based on: 1) the total periods of non- compliance, 2) Respondent’s calculated payroll for the periods of non-compliance, and 3) the estimated premium for workers’ compensation insurance, the Department issued the Amended Order of Penalty Assessment (“Penalty Assessment”) on November 11, 2016. The Penalty Assessment imposed a penalty of $76,621.62 against Respondent. At the final hearing, Mr. Iturria expressed that he has always attempted to fully comply with every applicable law. Mr. Iturria asserted that following Investigator Glover’s visit, he acted quickly to address his business’s workers’ compensation issues. Mr. Iturria voiced that since this incident, he has taken steps to implement better business and payroll practices, and he will not make the same mistake again. Based on the competent substantial evidence in the record, the Department demonstrated, by clear and convincing evidence, that Respondent failed to secure workers’ compensation insurance coverage or workers’ compensation exemptions for its employees for the periods of August 20 through September 11, 2014, and March 15, 2015, through August 19, 2016. Accordingly, the Department met its burden of proving that Respondent violated chapter 440 and should be penalized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Renew Painting, Inc., violated the requirement in chapter 440 to secure workers’ compensation coverage, and imposing a total penalty of $76,621.62. DONE AND ENTERED this 16th day of August, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2017.
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
