| PEF
seeks OT for 100 parole officers State Appellate Division dismisses union’s FLSA case By SHERRY HALBROOK PEF’s long and frustrating pursuit of just overtime pay for its members has hit another legal roadblock. Yet the union vows not to give up. On March 8 the state Supreme Court Appellate Division denied PEF’s appeal of a state Court of Claims decision that found the Court of Claims had no jurisdiction to hear PEF’s claim on behalf of 100 state parole officers. “Unfortunately, the courts changed the rules on us in the middle of the game, after we had relied and depended on those rules,” says PEF Deputy Counsel Lisa King. “The Appellate Division has retroactively applied a different statute of limitations to dismiss a case in which the state conceded that these parole officers were entitled to overtime pay,” she says. When PEF first filed this case asserting a violation of federal law in the US District Court in 1991, it was timely filed within the two years allowed under the Fair Labor Standards Act (FLSA) and in the proper court. However, a decision by the US Supreme Court changed the legal roadmap significantly and the case was dismissed. PEF then refiled its case in the state Court of Claims in 1998. Later, yet another US Supreme Court decision altered the case law in this area. In this latest decision, the NY Appellate Division relied on that most recent Supreme Court precedent and found that the two-year statute of limitations associated with the FLSA need not be applied. Instead, the Appellate Division applied a six-month time limit for filing, which is set under state law for cases coming to the Court of Claims. “PEF had not filed within that briefer time frame, and the court dismissed the claim on that basis,” King says. “Of course, we had not filed with the state court because we were litigating this case in federal court at that time.” King says PEF is filing for permission to appeal this Appellate Division decision to the state Court of Appeals. Two other PEF FLSA cases are still pending in the Court of Claims, and King says that they should survive because they assert a continuing FLSA violation and, therefore, are filed within that court’s six-month limit. But the amount of back pay the members could receive would be reduced. |