Chiefs sue for unpaid OT

Phil King

Two Gilroy Fire Department battalion division chiefs have filed a federal lawsuit against the City of Gilroy, alleging the city cheated them out of overtime hours for two years, a move that has left some City Council members blindsided and incensed.

Retired battalion chief Edward Bozzo and current battalion chief Phillip King filed the lawsuit against the city May 18 for a minimum of $50,000 in back pay, plus unspecified damages and attorney fees.

The complaint claims the city broke federal labor laws by classifying King and Bozzo as employees exempt from overtime, even after putting them on city-mandated furlough.

“Furloughed employees should be non-exempt employees,” said Carol Koenig, Bozzo and King’s San Jose-based lawyer. “If you’re a non-exempt employee you have to be paid for each and every hour you work, and have to be paid overtime when you exceed the Fair Standards of Labor Act threshold.”

The city classified Bozzo and King as “exempt” employees because they are upper management, but Koenig said that because they were first-responders, they should have been non-exempt all along. And even if they weren’t, once they were furloughed by the city, they should have been treated as non-exempt for the weeks they were put on furlough, even if they were only furloughed for a few hours per week. Their furloughs were typically four hours a week, in theory reducing their work week to 36 hours – but they still worked 56 hours per week in some cases, according to the complaint.

In response to numerous questions about the city’s reaction to the lawsuit, City Administrator Tom Haglund kept repeating a core statement.

“We believe that as managerial employees, they are exempt from overtime,” Haglund said. “We believe their complaint has no merit.”

In 2011, Bozzo’s compensation was $167,386 after furlough pay reduction knocked off $8,077, and King’s was $180,232, which also reflects an $8,077 cut from furlough hours. These numbers reflect total salary packages, including special pay and medical benefits. Bozzo retired in December.

“The salaries that these individuals receive takes into the account the long hours they work. They get paid a lot because they work a lot,” Councilman Perry Woodward said.

To ask for overtime on top of these already high salaries, Woodward said, is absurd.

“Whether their claim is technically valid or not, the lawsuit itself is an outrage,” he said.

Woodward, among other council members, suspects that this lawsuit is about more than the $50,000 plus damages Bozzo and King are suing for.

“My guess is that this is really about their pensions,” Councilman Bob Dillon said. Dillon said that if Bozzo and King can prove the city cheated them of some salary, they might later claim they deserve a higher pension.

Koenig refuted that idea, stating that overtime isn’t factored in to pension amounts.

Bozzo receives $10,803 monthly (before taxes) for the rest of his life, said Amy Norris, spokeswoman for the California Public Employees’ Retirement System.

Norris said that furlough pay cuts do not affect pensions because they aren’t considered permanent pay cuts.

Dillon said he respects both Bozzo and King as public employees, but the lawsuit is puzzling.

“This strikes me as marginally ungrateful by two guys I really admire. I know them quite well, and this seems out of character for them, especially for Ed. Both are outstanding employees,” Dillon said.

Koening estimates Bozzo and King were cheated out of being paid for more than 200 hours of work each, though she hasn’t yet added up all the overtime hours that Bozzo and King are claiming. The $50,000 demand is just a minimum, and Koenig won’t know the maximum demand until she figures out just how many overtime hours they worked.

Councilman Dion Bracco said he was miffed that the lawsuit seemed to come from out of nowhere.

“We gave them what they wanted and now it’s not good enough. It seems like they didn’t go through the proper ropes, with notifying us first. I had never heard about their complaint until last weekend,” Bracco said, when he read it on The Dispatch’s website.

But unbeknownst to council members, Koenig wrote Human Resources director LeeAnn McPhillips a letter back in November on behalf of Bozzo and King, that presented their grievance and threatened to sue if the city refused to negotiate.

“We did not receive any response from her, whatsoever,” Koenig said.

By the time she received the letter, McPhillips said she was all-too familiar with their complaint through informal conversations with Bozzo, and filed the letter away, noting that the letter had no merit.

“We had already been abundantly clear with the city’s position, we didn’t feel we needed to respond,” she said.

McPhillips said Haglund was “generally aware” of the letter, but the issue never made it to council – until now. Although Haglund would not say what direction the city plans to take, he did say that council plans to discuss the issue during Monday’s closed session before the regular meeting at 6 p.m.

Woodward said he is doubtful the claim will go through.

“This is a rather technical interpretation of a federal regulation for firefighters. I suspect there’s some weakness in the claim,” Woodward said.

“The complaint goes out of its way to make it sound like the city did this on purpose,” Woodward said. “I think that will be tough to prove.”


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