Re:  BOP III (Preshift/Postshift Overtime) Suits

Dear Potential Plaintiff:

If you are interested in the preshift/postshift overtime lawsuits against the Bureau of Prisons (the “BOP III” cases), and you are already not a plaintiff in the lawsuit, this bulletin will help you understand basic information about this case.

The lawsuits in the U.S. Court of Federal Claims against the Bureau of Prisons seek unpaid overtime compensation for non-bargaining unit employees.  BOP III consists of the following cases filed so far: Aaron, et al. v. United States, Case No. 00-315C; Aaberg et al. v. United States, Case No. 00-454C; Carlsen, et al. v. United States, Case No. 00-617C; Acebal, et al. v. United States, Case No. 01-47C; Adkins, et al. v. United States, Case No. 01-313C; Adelsberger, et al. v. United States, Case No. 01-314C; Aldridge, et al. v. United States, Case No. 01-480C; Atty, et al. v. United States, Case No. 02-35C; Banks, et al. v. United States, Case No. 03-446C; and Avripas, et al. v. United States, Case No. 03-2363C.  Because we anticipate filing a new complaint in July, please contact us soon for information regarding what you may need to complete to join the new suit.

If you are interested in joining the BOP III suits, you should understand the following important facts:

This case covers only non-bargaining unit employees.  To be named in the lawsuit, you must have held a Bureau of Prisons position outside the AFGE bargaining unit for at least some period of time since approximately June 1998, since the statute of limitations for Federal Employee Pay Act (FEPA) suits is six (6) years.  (Suits can recover backpay for the period 6 years before the date when we file the complaint to whenever the lawsuit is resolved, whether by settlement, trial, or court order.)  These are mostly supervisory positions, but also include some non-supervisory positions which are outside the unit for reasons such as confidentiality.  Membership or non-membership in AFGE or an AFGE local is immaterial.  Thus, your position could be part of an AFGE bargaining unit, even though you are not an AFGE member.  If you have a question about whether you are in the bargaining unit, your personnel

office

or an AFGE representative can probably give you accurate information.

This case includes preshift and postshift overtime, that is, any uncompensated time which the BOP required employees to work in necessary “preliminary” or “postliminary” work or such work that it approved.  Compensable preliminary time includes work employees perform before their scheduled shift begins or before going to their regular duty posts or offices -- for example, checking in at a control center (or key line); picking up keys or other equipment at a control center; walking from a control center to a duty post or

office

; waiting for elevators; briefing or being briefed by other employees; picking inmates for their work detail; or any similar activities.  Compensable postliminary time includes work employees perform after the end of the scheduled shift -- for example, walking to a control center from the duty post or office standing in key line to return keys or other equipment at a control center; waiting for elevators; briefing or being briefed by other employees; completing necessary paperwork; or other similar activities.  (You cannot claim any time you spent commuting between your home and the entrance to your place of work.) 

This case covers backpay for attending lieutenants’ meetings and other required meetings, including closeouts and community-oriented meetings.  If you were required to attend meetings outside your normal working hours and you were not compensated, you may be eligible to receive backpay for time spent in those meetings.

This case covers backpay for responding to emergencies after you scheduled shift ends.

This case covers backpay for uncompensated overtime you worked while on travel status, such as attending a program review or training.

However, this case does not cover any compensation for overtime spent off premises in “duty

office

r” or “on-call” time, except for actual times when you performed work (such as making phone calls in response to an institution emergency) on behalf of the BOP.

The Court of Claims will hear only claims of more than ten (10) minutes per day of total overtime.  In other words, the time spent in your overtime activities each day must total more than 10 minutes for you to have a recognizable overtime claim in this suit.  The court has held that lesser times are de minimis (too little) and do not require compensation.  We will not be able to obtain any backpay for days when your preshift/postshift overtime totaled less than 10 minutes.

You cannot recover for any of your claims which have already been presented and settled in any prior cases.  However, you can claim unpaid overtime you earned after those cases settled (April 2000 for BOP II, the last case we handled against the BOP).  If you received a settlement payment in BOP II, your claims in BOP III can go back no earlier than

April 26, 2000

.

By law you must sign a consent form in order for us to include you in the suit.  (Unlike class-action cases on other types of claims, claimants in federal backpay cases must specifically “opt in” by authorizing an attorney to represent them and to file a suit for them.)  Those who consent to inclusion in the BOP III suit will be listed by name in the “caption” of the complaint.  The consent form also acts as our retainer agreement.  It states your agreement to hire us to represent you; to share, along with all other claimants, the cost of the expenses in this case; and to pay us 5% of any recovery if our fees are not paid by the Government.  Please review it on this website.

To represent you in this case we require a modest payment ($200) towards our expenses (which include filing fees, copies, postage, supplies, transportation, travel, messengers, depositions, deposition transcripts, hearing transcripts, etc).  the expenses for the BOP III so far have run over $50,000 and will likely increase, because we will need to travel around the country to conduct depositions.  Therefore, we must look to you for that financial commitment and request $200 to cover these expenses.

We are pursuing the case on a contingency-fee basis.  This means that in a settlement or in a post-verdict fee petition we will request that the BOP pay our fees and our expenses.  We will not charge you fees for our services.  Instead, we anticipate that the BOP will pay our fees after a court victory or a settlement.  We are accepting the inherent risks involved because we know, after conducting extensive research and investigations in the first cases and depositions in these cases, that the BOP has clearly violated the federal overtime laws by not paying its employees for required overtime work.  However, our fee agreement with you will provide that if we are successful in obtaining money for you from the BOP, and if the BOP does not pay all of our fees, we will keep a small percentage of your recovery (5%).  If the BOP does settle this case, it will attempt to negotiate a compromise payment of our fees, so we cannot guarantee that the BOP will pay all our fees.

The Court will not allow us to amend a complaint to add new claimants for the same backpay period established by filing the original complaint.  Therefore, to add new claimants, we must file new complaints.  We have filed ten court complaints in this set of lawsuits.  We anticipate filing another complaint in July 2004.  Therefore, please send us your information now if you want to be a plaintiff so that we may include you in the new complaint.  Otherwise you will have to wait until any other complaints we may file, which couldbe later this year.

It is imperative that you complete all of the information requested on the consent form.  Most importantly, you must complete the box(es) asking for your positions since June 1998, and state whether or not they are bargaining unit positions, and an estimate of your uncompensated daily overtime.  In addition, please identify someone as your personal contact person (preferably not a spouse), including the city and full phone number for the person listed.  If we lose touch with you for some reason, this will give us a head start in trying to locate you.

Please address all inquiries and mail to Norberto Salinas, one of my associates.  If you want confirmation of receipt, either send your letter by certified mail or enclose a stamped self-addressed post card (which we will stamp with a received date and return).

Thank you for considering us to be your attorneys and for your cooperation.  We look forward to working with you on this suit.

Sincerely,

Alan Banov

AB/NS/se