January 13, 2004
Confidential Bulletin Re: BOP III (Preshift/Postshift Overtime) Suits

Dear Potential Plaintiff:

This bulletin may interest you if you are interested in joining a new suit in the U.S. Court of Federal Claims against the Bureau of Prisons for unpaid preshift/postshift overtime compensation for non-bargaining unit employees (the “BOP III” cases). The 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 within the next couple of months, please contact us 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:

To represent you in this case we require a modest payment ($100) towards our expenses. (See below.)

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 January 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.

Compensable preshift and postshift overtime includes any uncompensated time which the BOP required employees to work in necessary “preliminary” or “postliminary” work. Compensable preliminary time includes work employees perform after entering an institution and before their shift is scheduled to begin -- for example, checking in at a control center; picking up keys or other equipment at a control center (or key line); walking or other travel to a duty post after arriving at the BOP facility; waiting for elevators; briefing or being briefed by other employees; or any similar activities. Compensable postliminary time includes work employees perform after the end of the scheduled shift -- for example, walking or other travel to the control center from the duty post; standing in key line to returning keys or other equipment at control center; waiting for elevators; briefing or being briefed by other employees; completing necessary paperwork; or other similar activities.

While we believe that even 10 minutes should qualify, only claims of more than ten (10) minutes per day of total preshift and/or postshift overtime will be presented in this suit. The time spent in one or more of these activities in a given day should total more than 10 minutes (i.e., 10 minutes and one second or more) for you to have an overtime claim in this suit. The court has held that lesser times are de minimis (too little) and do not require the Government to compensate. We will not be able to obtain any backpay for you for days when your preshift/postshift overtime totaled less than 10 minutes. Also, you cannot claim any time you spent commuting between your home and the entrance to your place of work. Please do not attempt to join the suit if you have no compensable backpay.

For the claims under the FEPA, we will need to prove that authorized BOP officials “officially ordered or approved” you to work overtime. This is a higher standard than for claims under the Fair Labor Standards Act (where the standard is whether the overtime worked was “suffered or permitted”). While we have cases holding that oral orders are sufficient to meet that burden, we want any and all documents (post orders, memos, e-mails, meeting minutes, disciplinary correspondence) showing that the BOP explicitly or implicitly ordered or required you to work this overtime since 1998 (or when your actionable claims actually began). Send all such documentation to us when you send us your backpay questionnaires. For some of your positions, there may be a confidentiality barrier against sending post orders directly to us. However, in discovery we will ask that the Agency produce for us any such documents that you designate, so you will not violate any confidentiality rules by sending us these documents directly. If you do not have such documents, you will need to provide details in your questionnaires about oral orders you received, specifically, who gave the orders, what the order was, and when the orders were given.

On January 1, 1996, the BOP claims it implemented a new policy set out in Operations Memorandum 214-95 to eliminate pre-shift and post-shift overtime by adjusting shifts to include times spent picking up and returning equipment to control center and traveling from control center to assigned duty posts. We have discovered that the policy was not implemented at many institutions and that it did not cover supervisors at some institutions. For those institutions at which the policy was implemented and applied to non-bargaining unit employees, we want to show that the BOP nonetheless required claimants to work uncompensated overtime.

We are not claiming any compensation for overtime spent off premises in “duty officer” or “on-call” time, except for actual times when you performed work on behalf of the BOP. The BOP will not pay for claims when you are “on-call” but not actually performing work.

We will seek backpay for lieutenants’ meetings and other 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. Again, please supply us with documentation that shows you were required to attend the meetings outside your normal working hours and when those meetings occurred.

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). Thus, if you received a settlement payment in BOP II, your claims in BOP III can go back no earlier than April 2000.
You must keep us up-to-date on all address changes. After we file the suit, the Government will propound discovery requests on the plaintiffs. To answer these requests, we will need to seek additional detailed information from each claimant on a short time schedule (within 30 days). If you do not respond in a timely manner, the Court will probably dismiss you from the case, as it did approximately 75 plaintiffs earlier in BOP III. The reason for your failure to respond will not make any difference to the Court. Therefore, if you move, immediately notify us by mail, e-mail, or fax of your new address. We do not promise any efforts to locate claimants other than to write to the last address we have on file.

Please keep us current on any position changes. At all times we need to know your current position, to be sure of your continued eligibility to receive compensation and to ensure our information is as current as the Bureau’s. For example, if you become covered by a collective-bargaining agreement, any overtime after that point is not recoverable in this suit; you would need to file a union grievance for such claimed overtime. (Unless we tell you otherwise, you do not need to inform us periodically of grade or step changes.) Send us written notices of position and address changes in writing, by mail, e-mail, or fax. If you transfer to a bargaining unit position, you will not be able to claim any backpay in this case for overtime worked in that position.

We are a small law firm, so we particularly need the claimants’ help to maximize our efficiency. For that reason, we have been designating one claimant at each institution as a contact claimant. We will let you know who that person is and ask that if you have questions about the status of the case, to funnel your inquiries through the contact claimant, rather than contacting our office directly. This will help minimize repetitive calls to our office and enable us to do more substantive legal work on this case. We will most likely send bulletins to all claimants quarterly to keep them up-to-date on the status of the case. We also will place the bulletin on our website: www.banovlaw.com. This will dramatically reduce the cost of mailings, helping us to keep down expenses for both you and us. If the contact claimant cannot answer your questions, please feel free to contact us with you questions.

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. (See below.) Please review it.

Lawsuits cost money for filing fees, copies, postage, supplies, transportation, travel, messengers, depositions, 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 more depositions. Therefore, as discussed below, we must look to you for that financial commitment and request $100 to cover these expenses.

We will deposit the check or money order for $100 you send us with your Consent Form into a trust account, which we will draw upon as we incur expenses in the case. We will let you know if and when the fund is nearly depleted to the point that another contribution will be needed. Another contribution may be necessary, depending on how many claimants enter the case and how much money we obtain now for future costs. The larger the number of claimants in the case, the less need we will have to ask for more money later. The payment will not be refunded unless all of our expenses and fees are reimbursed by the Government.

We are pursuing the case on a contingency-fee basis. This means that we request that the BOP pay our fees and the claimants to pay our expenses. We will not charge you for fees for our time, which already exceed $450,000. Instead, we anticipate that the BOP will pay our fees after a court victory or a settlement. Therefore, our fees will be contingent on our success. We are accepting the inherent risks involved because we know, after conducting extensive research and investigations in the first 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 our fees, we will keep a small percentage of your recovery (5%). As an example, 5% of a $5,000 individual settlement would be only $250 for our fee. 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.

We cannot make any guarantees as to the results in this case, but we are hopeful that we will be able to settle this, rather than proceeding through the entire court process. Court resolution will take a great deal of time and expense and could require many of you to travel to D.C. at your own expense to testify at a deposition or at trial (or to pay us to travel to your institution to represent you there). A settlement is always a compromise, though we will, of course, try to obtain as much money for you as possible. It may be as distant as late 2004 before we begin settlement negotiations. Keep in mind that negotiating in this case could also take substantial time.

For your information only, we estimate that a claim for an employee with a yearly salary of $36,000 who worked 15 minutes of preshift and postshift overtime per day would be worth approximately $1,466.83 for one year. This is not a promise or a guarantee, but it is a guide to the possible overall value of our representation of you.

Assuming we prevail, either in a court decision or settlement, the BOP will most likely be required (or will agree) to reimburse our expenses, as well as our fees. If the Government does pay for all of our fees and expenses, we would refund to you the costs you have advanced us. If we have to compromise our fees and expenses to any substantial degree, we will simply retain the expense payments collected from the clients to help make up the difference. Meanwhile, ask your accountant about the deductibility of such payments on your income tax return; we do not give tax advice.

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, additional complaints are required. We have filed ten court complaints in this set of lawsuits. We anticipate filing another complaint within the next couple of months. Therefore, please send us your information so that we may include you in the new complaint.

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 May 1, 1994, and state whether or not they are bargaining unit positions, and an estimate of your uncompensated preshift/postshift overtime per day. (See above for guidance.) In addition, we strongly advise you to identify someone as your personal contact person (preferably not a spouse), including the city and full phone number for the person listed. (Please do not list your institution’s personnel office.) If we lose touch with you for some reason, this will give us a head start in trying to locate you. Note that the consent form states that if you do not keep us updated on your current address, we are not under any obligation to locate you.

All inquiries and mail should be addressed to the attention of 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). Also, please copy and distribute both this bulletin and the consent form to any other non-bargaining unit employees you know at any federal institution. Remember: if you did not send us a $100 check, we will not include you in the case.

Thank you for considering us to be your attorneys and for your cooperation. We look forward to working with you on this suit. Please note that as of January 1, 2004, our new address is 1819 L Street, N.W., Suite 700, Washington, D.C. 20036-3830.

Sincerely,

Alan Banov

AB/NS/se