v. Docket Nos. 97-CORR-374, 375
DIVISION OF CORRECTIONS,
Respondent.
Grievants Shawn Straughn and David Pittman, employed by the Division of Corrections
(Respondent) at the Northern Regional Jail and Corrections Facility, filed level one grievances on
April 16, 1997, in which they alleged that they worked more than forty (40) hours a week while
attending the W. Va. Corrections Academy, and were not compensated for the overtime. The
grievances were denied at levels one and two. Following an evidentiary hearing at level three,
Grievants were awarded overtime for one and one-half (1½ hours) worked during the second week
of the Academy. Upon appeal to level four the matters were consolidated for hearing in the
Grievance Board's Wheeling office on September 17, 1997. The grievance became mature for
decision on October 17, 1997, the last date for filing proposed findings of fact and conclusions of
law.
Grievant Straughn attended the West Virginia Corrections Academy at West Liberty State
College from May 6, 1996, through May 24, 1996. Grievant Pittman attended the Academy from
January 15, 1997, through February 2, 1997. This training is residential, with the participants'
presence required full time from Monday morning through Friday evening. Participants are to
complete classes and other scheduled activities, but are afforded free time throughout the day and
evenings. As a general rule, the participants do not work in excess of forty (40) hours per week. At level four, Grievants claim they are entitled to overtime pay for ninety-three (93) hours
and five (5) minutes, in addition to the overtime they received as a result of the level three decision.
Grievants account for the hours requested as follows:
a) Thurs. (Week 1) Team Building 6:00 p.m. - 7:30 p.m. - 30
minutes over
Fri. (Week 1) Class till 2:35 p.m. - 20 minutes over
Thurs. (Week 2) Legal Quiz 5:30 p.m. - 6:00 p.m. - 30 minutes over;
Team Building 6:00 p.m. -7:20 - 20 minutes over
Thurs. (Week 3) Team Building 6:00 p.m. - 7:25 - 25 minutes over
Total: 2 hours 5 minutes
b) Games Criminals Play - 10 hours
c) 11:00 p.m. - 5:30 a.m 12 days - 78 hours
d) Travel time - 3 hours
In support of their claim, Grievants assert that the 78 hours of sleep time was involuntary
attendance which they completed only because a failure to do so would subject them to expulsion
from the Academy and possible loss of employment. They assert entitlement to compensation for
this time under the provisions of the Fair Labor Standards Act, Sections 785.16 and 785.28, which
state in pertinent part:
Section 785.16 (a) General. Periods during which an employee is
completely relieved from duty and which are long enough to enable
him to use the time effectively for his own purposes are not hours
worked. He is not completely relieved from duty and cannot use the
time effectively for his own purposes unless he is definitely told in
advance that he may leave the job and that he will not have to
commence work until a definitely specified hour has arrived.
Whether the time is long enough to enable him to use the time
effectively for his own purposes depends upon all of the facts and
circumstances of the case.
Section 785.28 Attendance is not voluntary, of course, if it is required
by the employer. It is not voluntary in fact if the employee is givento understand or led to believe that his present working conditions or
the continuance of his employment would be adversely affected by
nonattendance.
Grievants additionally offered the testimony of co-workers Andrea Dernberger and Gene
Groetzinger, who stated that they received overtime pay while attending the Academy.
Respondent denies that Grievants are entitled to additional overtime compensation. Kathryn
Lucas, Director of Training at the Academy, testified that she attempts to keep the training schedule
at forty (40) hours per week, excluding travel, although the hours may be exceeded occasionally
when she finds it necessary to schedule a night class. Ms. Lucas prepared a daily schedule, admitted
as Grievants' Exhibit 2, on which she noted that daily schedule was as follows:
0530 Reveille
0550-0545 Roll Call
0600-0615 Fitness Training
0620-0640 Work Details
0640-0740 Showers, Dress, Breakfast
0740-0800 Personal and Detail Inspection
0800-1145 Class Advisory & Morning Classes
1145-1230 Lunch Break
1230-1615 Afternoon Classes
1800-1900 Team Building (Thursday only)
Participants are not required to report to the Academy until 12:00 p.m. on Mondays, and are
released at 2:15 p.m. on Fridays. Ms. Lucas noted that time allocated to Showers, Dress, Breakfast,
Lunch, and evenings are free time, so the work week consists of 3.75 hours on Monday, 9 hours each
on Tuesday and Wednesday, 10 hours on Thursday, and 7 hours on Friday, for a total of 38.75 hours.
She noted that the only variation to this schedule during Grievants' attendance was the addition of
a 1½ hour “Key, Tool & Weapon Control” class, for which Grievants were compensated at levelthree. She concluded that the schedule had been reviewed and approved by Respondent's Legal
Division and the Federal Wage and Hour Office in Charleston, West Virginia, both of which advised
that the sleep time was not compensable.
While Grievants' complaint regarding the sleep time is understandable, the evidence of
record does not support the claim for additional overtime compensation. It would appear that their
attendance was involuntary under the FLSA definition; however, Section 785.16 does not favor
Grievants, who were in fact completely relieved from duty, and apparently allowed to use the time
for their own purposes, so long as they were on-site.
(See footnote 1)
Neither party addressed the ten (10) hours requested for “Games Criminals Play”, and lacking
any information as to what was required of Grievants, no credit may be given for this time. Neither
is the requested three (3) hours of travel time supported by the evidence. Grievants live and work
in Moundsville. At that time the Academy was held in West Liberty, approximately thirty (30) miles
away. Such a distance would not require three (3) hours of travel time. Further, the late start time
on Monday, and early dismissal on Friday, appears to provide more than adequate time for travel.
Because Respondent did not respond to the claim for two (2) hours and five (5) minutes
which Grievants' attribute to classtime conducted beyond that scheduled, it is accepted that they
worked this additional time. However, the amount of time during any given week does not exceed
fifty (50) minutes. When added to the regular 38.75 hour week, Grievants' work time did not exceed
forty (40) hours, and no overtime was accrued.
Although Grievants did not specifically allege discrimination, their comparison to co-workerswho received overtime compensation would appear to constitute that claim. It is unnecessary to
further evaluate this issue; however, because Paul Kirby, Warden of the Northern Regional
Correctional Facility, testified that he had approved the overtime for the two cited individuals who
attended the Academy during a transitory phase when it was moved to Montgomery, West Virginia,
and that in retrospect, the compensation had been improperly awarded. Grievants cannot be awarded
additional compensation based upon an erroneous award made to other employees. See generally
Swanger v. Dept. of Highways, Docket No. 95-DOH-063 (Nov. 19, 1997).
In addition to the foregoing discussion it is appropriate to make the following formal findings
of fact and conclusions of law.
Any party may appeal this decision to the circuit court of the county in which the grievance
occurred, within thirty (30) days of receipt of this decision. W.Va. Code §29-6A-7. Neither the
West Virginia Education and State Employees Grievance Board nor any of its Administrative Law
Judges is a party to such appeal and should not be so named. Any appealing party must advise this
office of the intent to appeal and provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
DATE: January 22, 1998 _______________________________________
SUE KELLER
Senior Administrative Law Judge