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Justice Attorneys Seek Overtime Pay

August 25, 1999

WASHINGTON (AP) _ Lawyers who work for the Justice Department are seeking more than $500 million in a class-action lawsuit that accuses the law-enforcement agency of illegally failing to provide overtime pay.

``The purpose is to ensure that the nation’s chief law enforcement agency abides by the law itself,″ the attorneys’ lawyer, Robert A. Van Kirk, said Wednesday. ``The department has made a deliberate policy decision to ignore the law″ that requires overtime pay for employees who work more than 40 hours a week.

The lawsuit says the department keeps two sets of records: one set for pay purposes, which shows a 40-hour work week, and another set reflecting actual hours worked, which is used for budget requests to Congress.

As a result of a meeting Tuesday between lawyers and U.S. Court of Federal Claims Judge Robert H. Hodges Jr., more than 12,000 current and former Justice Department lawyers will be formally notified of the lawsuit early next month and asked whether they want to join as plaintiffs. About 180 lawyers have joined so far.

Justice Department spokeswoman Chris Watney declined comment on the lawsuit filed last November.

The department said in court papers early this year, ``There is little overtime policy that is DOJ-wide″ and that the department had no ``policy of denying overtime pay to attorneys who are officially ordered or approved to work overtime.″ Those who sued must show that any overtime work was officially approved, the department said.

The lawyers seek damages of more than $500 million to provide back overtime pay as well as contributions to an employee savings plan and retirement benefits.

The lawsuit said department records show that many Justice lawyers work well over 40 hours a week and that ``DOJ management expects that its attorneys will work overtime, has knowledge that its attorneys are working overtime, relies on the time records they submit, and approves of the hours expended.″

``Indeed, the department has adopted a formal policy of refusing to pay overtime even while admitting that its attorneys must work overtime to perform their jobs competently,″ the lawsuit asserted.

One of those who have joined the lawsuit, attorney Nancy Hill, now in private practice in Charleston, W.Va., estimates that she often worked 60 and sometimes 80 hours a week during her 13 years as an assistant U.S. attorney.

``Our understanding was that there was no entitlement to be paid for overtime and we were expected to work the hours the job required,″ she said Wednesday. ``No one left at 5 o’clock, ever.″

The lawsuit was filed on behalf of lawyers who have worked for the Justice Department in Washington and in U.S. attorneys’ offices across the country since Nov. 25, 1992.

The Federal Employees Pay Act of 1945 requires federal employees to be given overtime pay or compensatory time off for work in excess of an eight-hour day and 40-hour week. The law does not create an exception for lawyers.

In some cases, an agency can pay workers a flat annual overtime premium instead of calculating the exact number of overtime hours worked.

A 1998 Justice Department manual states that ``assistant U.S. attorneys are professionals and should expect to work in excess of regular hours without overtime pay,″ according to a copy provided by Van Kirk’s office.

His office also released a copy of a 1980 opinion by the department’s Office of Legal Counsel that concluded Justice lawyers were entitled to overtime pay or compensatory time off. The opinion said a court likely would conclude that much of the overtime worked by Justice lawyers was ``induced″ even though the department had a policy of not ordering overtime.

A 1998 internal memo by Justice Department lawyer Fran M. Allegra said, ``If the department continues to ignore this problem, sooner or later, an intrepid attorney will develop a class action on this issue and major problems will result.″

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