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Unpaid overtime suit settled; former deputies get $17,000

by Larry Chowning

The Middlesex County Board of Supervisors agreed in December to settle an unpaid overtime and wage lawsuit against the Middlesex Sheriff’s Office out of court. The suit was brought last year by three former county deputies.

The complaint was filed in United States District Court for the Eastern District of Virginia in Richmond on February 28, 2013, by former deputies Austin Moon, Ashland Burch and Perry T. Lyons Jr. The deputies sued Middlesex County Sheriff David Bushey for overtime compensation.

After a closed session at the board of supervisors’ meeting on December 3, supervisors voted to pay Moon $13,000, Burch $2,500 and Lyons $1,500 for unpaid overtime and wages. It is unclear how legal fees incurred by the county and the plaintiffs will be paid.

Although Sheriff Bushey was named the defendant in the case, the suit goes back to the administration of former county sheriff Guy Abbott. Middlesex County hired the law firm of Guynn, Memmer & Dillon, P.C. of Salem to defend the sheriff’s office.

Attorney Jim Guynn said in a January 21 telephone interview that all the overtime was incurred before Sheriff Bushey took office. “Sheriff Bushey . . . did not do anything to cause this lawsuit,” he said.

Guynn said, “The way the federal law apparently looks at this is that the office of the sheriff employs deputies, and whoever happens to be the occupant of the office at the time is who the suit is brought against and ends up being the defendant, even if none of it happened when he was sheriff.

“The way the law is stated is that once you get elected sheriff you walk into things that you didn’t know had existed,” said Guynn. “It would have been easier to explain if they had named the previous sheriff in the suit too, but they are not required to. The federal law is only looking at it from the standpoint of the office.”

Overtime pay
The complaint entered by the former deputies states that federal law requires employees to receive overtime compensation for all hours worked over 40 hours in a seven-day workweek.

“The previous sheriffs awarded paid time and comp hours at a straight rate of hours worked over 40 hours in a week for dispatchers and deputies. Defendants’ payment of comp hours in lieu of (proper) payment for hours worked . . . was unlawful under both federal and state law,” the complaint stated.

“Deputies who were also canine officers worked additional hours performing tasks such as kennel maintenance and canine training, but did not receive any compensation at even a straight rate of time,” it stated.

The sheriff was obligated to pay at a time-and-a-half rate or award comp hours at a time-and-a-half rate for all overtime hours worked, the complaint states, and “defendants failed to do so,”

Also, two plaintiffs did not receive compensation for accrued comp hours when they were terminated. Moon did receive a payment after his termination but such payment did not fully compensate him for all of his damages under the law, the complaint stated.

The complaint further stated that the sheriff’s office was in violation of The Fair Labor Standards Act (FLSA). New policies have been put in place by Sheriff Bushey that apply to all FLSA rules, said county administrator Matt Walker.

To settle the suit, part of the funds came directly from county coffers and part was paid by Virginia’s Division of Risk Management that provides insurance for these types of issues, said Guynn. “If the county did not pay its portion, it would have had to come out of the sheriff’s budget, but it had to be paid,” he said.

Other claims
The matter is not over yet, noted Guynn in an email on January 22. “Other deputies have submitted a claim to the county for comp time accrued under previous sheriffs, and the county is working through that claim now. The county is trying to take some action to address the deputies’ concerns about unpaid comp time. I think that action will be taken soon in an open meeting,” he stated.

posted 01.29.2014

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