A correctional officer walked into his boss' office one day and asked a question: What is my job?
The officer put his boss in a tight spot. If the answer was "manager," then the officer would be entitled to all the commensurate perks: 25-year retirement, a higher salary and not an hour of expected overtime. If not, then the officer was owed time-and-a-half pay for all the overtime hours he worked.
So, according to this Corrections Department employee, the boss just didn't answer.
The officer—who would only speak to SFR on condition of anonymity—is in a compensatory no-man's-land at the Corrections Department. He's a lieutenant, which is a supervisor and, thus, he's ineligible to be in the union with the sergeants, whose contracts guarantee overtime pay. Because of that, he says, he's allowed to be opportunistically moved from one classification to another: When he needs to work extra hours, he's a non-manager; when he gets paid for those hours, he's suddenly a manager again.
"I have no managerial powers," he says. "We supervise people, but we're still required to do shakedowns; we're still required to do escorts. I can't discipline anyone."
Whether or not the lieutenants and captains in the Corrections Department are paid overtime is the subject of a class-action suit filed Oct. 28 in 1st Judicial District Court. The suit alleges that the six plaintiffs—including the one who spoke to SFR—are owed back pay for overtime.
If victorious, the plaintiffs could hit the department in a big way. The lieutenant who spoke to SFR says he has racked up hundreds of hours in overtime in his seven years as a lieutenant, and that it's a common practice in the department. If true, lieutenants and captains could be depositing their winnings for years.
Lawrence Rodriguez, director of the local chapter of public employees' union the American Federation of State, County and Municipal Employees, says opportunistic classification isn't rare.
"They will say you're exempt for certain things and nonexempt for other things," he says. "That is not uncommon that employers put them in and out of classification."
Tia Bland, a Corrections Department spokeswoman, says in a statement, "Lieutenants and captains are designated as administrative employees under the Federal [Fair] Labor Standards Act, which means we do not have to pay them more money for working additional hours. However, our practice is that we do pay them more money for working extra hours because we need them and we value their work. We pay them their hour rate when they work additional hours."
Bland also says managers are sometimes required to work overtime.
The suit's claim isn't that the absence of overtime pay violates the workers' contracts, but that it violates the New Mexico Minimum Wage Act. It's unclear whether or not this is actually the case. Public employees in New Mexico are explicitly exempt from all but one provision in the law, including that for overtime. Jeremi Young, the attorney for the corrections officers, did not explain where in the act it allows for the plaintiffs to be paid overtime.
But what might clinch the suit for the plaintiffs is the federal Fair Labor Standards Act, which is what piqued the officers' interest in the first place. Under that law, non-exempt (for example, those who aren't seasonal, temporary or juvenile workers) and non-salaried (those who work on hourly wages) employees are entitled to time-and-a-half pay for every hour worked that exceeds 40. (Young says the FLSA will be included in an amended complaint.)
At least in one other state agency, the Department of Health, all non-managerial employees are paid overtime, a spokeswoman says. "But the reason is not because of the minimum wage law or the union, it has to do with the federal Fair Labor Standards Act," she says.
Sergeants in the Corrections Department get the same treatment, but whether that's solely due to federal laws or some forced perspective on those laws written into the contract with the local chapter of AFSCME is unclear. It's not uncommon for a collective bargaining victory to simply win the enforcement of laws already on the books.
The Public Employee Bargaining Act, a state statute passed in 2003, provides the boundaries for collective bargaining in New Mexico, and it specifically bars "management employees" from joining a union.