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Sheriff’s Office Pay Policies Fall Short

In this pay dispute between the Loudoun County Sheriff’s Office and its patrol deputies, the Supreme Court of Virginia says two policies used by the office to manage overtime pay – debiting sick hours from hours worked during a pay period and allowing an exchange of overtime hours for later hours compensated at the regular rate – violated the Virginia Gap Pay Act; however, the office’s “force flexing” scheme which stops deputies from working overtime hours, does not violate the Act.

This appeal requires us to resolve issues of Virginia law. However, the relevant state law operates in tandem with federal law, including the federal Fair Labor Standards Act.

Although the Virginia Gap Pay Act, Va. Code § 9.1-700 et seq., originally applied only to public employers of fire protection employees, the General Assembly amended the Act in 2005 to apply to public employers of law-enforcement employees. It is clear the General Assembly intended the Act to operate in conjunction with the FLSA.  The Virginia statute is designed to solve a problem unaddressed by the FLSA by dealing with the “gap”: the difference between an employee’s regularly scheduled work hours and the federal pre-overtime hours limit.

Code § 9.1-701(A) requires an employer of law-enforcement employees to pay such employees, in the form of either overtime compensation or leave, at a rate of at least one and one-half times their normal pay rate, for all hours of work that occur within a work period and that accrue within the gap.

Pursuant to Loudoun County’s direction, the sheriff’s office implemented three employment practices to reduce overtime payments to patrol deputies. We find the Act prohibits two of these employment practices but permits the third practice. To the extent hours of work actually accrue in the gap, notwithstanding creative accounting practices, those hours must be paid at least at a one and one-half overtime rate. But the Act neither requires payment for hours of work never actually accrued in the gap, nor mandates that an employee work according to a specific work schedule.

We agree the “debiting leave” scheme violates the Act. Under this scheme, if a patrol deputy, during a single work period, works overtime hours and takes sick leave, the sheriff’s office reduces and offsets the sick leave hours by the overtime hours worked. Under the plain language of Code § 9.1-701(A), if any “hours of work” accrue within the gap, they must be paid at least at a one and one-half overtime pay rate. Sick leave hours qualify as “hours of work.”

Under the “exchange hours” scheme, a patrol deputy may voluntarily “exchange” overtime hours during a particular work period which accrued in the gap, for leave hours to be taken and paid at the normal rate at any later date. This scheme also violates the Act, as the hours at issue qualify as “hours of work” under the Virginia Act. Although the sheriff’s office could pay overtime hours as leave rather than as overtime compensation, the office was required to pay the deputies’ exchanged overtime hours at least at a one and one-half overtime rate because those exchanged overtime hours were “hours of work” actually worked and therefore accrued within the gap.

However, the “force flexing” scheme is legal under the Act. This scheme is implicated when a patrol deputy accrues hours in addition to his regularly scheduled work hours such as through overtime work or a holiday. Then, later in the same work period, to avoid paying overtime, the office prohibits the patrol deputy from working his full scheduled shift and sends the patrol deputy home before the deputy can accrue sufficient hours to earn overtime. This scheme merely stops the patrol deputies from accruing more hours than the number of their regularly scheduled work hours in a work period. This scheme neither violated the Act nor violated the patrol deputies’ contractual employment rights.

Here, plaintiffs waived their right to a jury and evidence was presented to the court during a bench trial. We leave to the circuit court’s sound discretion to take appropriate action to ensure that it is best able to resolve the outstanding issue of damages while sitting as fact finder.

Affirmed in part, reversed in part and remanded.

Bailey v. Loudoun County Sheriff’s Office (Millette) No. 131815, Sept. 12, 2014; Loudoun County Cir.Ct. (Swersky) Timothy P. Bosson, H. Robert Showers, Daniel J. Hebda, Randy Singer, Rosalyn Singer, Simms Showers for appellants; Leslie A. Winneberger, William F. Etherington for appellees. VLW 014-6-065, 27 pp.

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