Sunday, January 11, 2009

240

As I'm kicking back on the couch and watching some Justice League cartoons with my son on this lovely Sunday afternoon, I'm reminded of the fact that right now the Offices of the Harris County District Attorney over at the Criminal Justice Center are probably full of prosecutors working on cases -- Prosecutors who are missing time with their families, and missing some NFL Playoff games to try to get a jump start on the coming week.

The weekend is about the only time that a prosecutor can come even close to catching up on the massive caseload that they have.

On a typical weekday (even assuming a prosecutor isn't in trial), getting some work done for a prosecutor is difficult, to say the least. The first half of the morning is stuck in court docket, and it is not unusual for docket to run well past 1:30 in many courts. If a prosecutor does take a lunch, they come back with two and a half to three hour left in the regular work day. This time is usually spent returning the phone calls received during the morning while the prosecutor was in docket call, or trying to get a task done between constant phone calls.

The reality is that for a prosecutor to truly get some meaningful work done on his or her cases, it usually has to be outside the typical 8 to 5 weekday window. The docket and the constant barrage of phone calls prevent a prosecutor from sitting down and actually reading a long file without interruption. Prosecutors (especially those who are Twos and Threes within the Office) spend large portions of their weekends up at the Office just to keep their heads above water managing their caseloads.

The reason I bring this up is to point out that prosecutors don't get paid overtime for their work. They earn Compensation Time (AKA Comp Time). If a prosecutor works a couple of hours on the weekend, at some point they can take two hours off during the normal 8 to 5. It all comes out in the wash, right? Nothing wrong about that, is there?

In theory, that system should work out just fine.

Unfortunately, there are a couple of kinks in the system.

The first and foremost of these "kinks" is the fact that the amount of Comp Time that can be earned by a prosecutor is 240 hours.

So what happens once a prosecutor has accumulated over 240 hours (which can happen quite rapidly for the Twos and Threes)?

They start working for free at that point.

No time and a half. No supervisor telling them to take some time off before they go insane. A blind eye is usually turned to the fact that these folks aren't being compensated at all for the time that they are spending up at the Office.

I've often wondered how that was legal under the Employment Code, but that's not my area of practice. If somebody who knows more about employment law would care to enlighten us, please do so.

The other thing that I find interesting about the Comp Time system is that when a prosecutor leaves the Office through resignation or termination (or even Super Double Termination), they only get paid for half of their Comp Time. That loosely translates into getting paid 50 cents on the dollar for the time they earned working for the County. I really don't get how that is legal.

Don't get me wrong. There are a lot of great perks working for the county. There is no overhead and the insurance is great. I understand and I don't dispute that.

But I guarantee you that pretty much every prosecutor that has ever worked at the D.A.'s Office has put in plenty of hours working for free without so much as a pat on the back for doing so. I'm just not real sure how that can legally happen.

What do y'all think?

29 comments:

Anonymous said...

How can it legally happen? And you're an attorney asking this question? It's simple. Congress or the state legislature writes a law saying what counts and what doesn't count as overtime as well as how it will be paid. Then some judges have a case presented to them arguing what Congress really intended or what the law really means and they determine what the law now is. What's so hard about that? Educators work 10 to 20 plus hours o/t a week and receive no compensation but the janitor cleaning up their classroom receives o/t. Why? All because some attorneys drafted a law, business and labor tried to influence the outcome and Bamm! We have a sausage! Just look at the FLSA statute and all the litigation determining what does and does not qualify. By the way, win a class action suit and have a fee of twenty-five percent of all back wages awarded and you can have a nice retirement package yourself! :)

A Harris County Lawyer said...

Anon 3:55 p.m.,
I'm a Criminal Law attorney, not an Employment attorney. Perhaps I should have been a bit more blunt. The question I'm asking is whether or not the policy of not paying the ADAs after they have worked over 240 hours in Comp Time violate the rules as have they have been established. Is it a violation of the law to not do something for them after the 240?
Several years ago, an elected Justice of the Peace got busted for tampering with a governmental record. The record he was tampering with was keeping an unofficial "comp time" book to compensate his employees who had worked past their allotted time. If I recall correctly, he was showing them as working, when in fact they were taking their "unofficial comp time". It was clearly illegal, but I think his intent had been to stay in compliance with the county rules governing the comp time.

Anonymous said...

murray=before you get to carried away with these overworked people,we are in a recession and they are lucky to have a job. if it is so bad let them try to get a real job. im sure you worked hard when you were there,but from what i hear,many were not. could this be what the investigation mentioned is about?padding their time sheets? remember the hpd officer who racked up all that overtime?

A Harris County Lawyer said...

Oh, I don't think I will get too carried away on this one, and yes, I'm fully aware of the economy. I was just curious as to whether or not anyone knew how the county justified things. It really is just curiosity.

denholm said...

It's legal to compensate at 50% of earned comp when you take pay. If you are classified as an "exempt" employee by your boss, then it's legal to accrue at 1:1 instead of 1.5:1. Exempt is a vague term. Basically, if you are an "administrator" then you are exempt.

But, the county set a cap for comp time at 240 and it is illegal to work someone past the 240, UNLESS you pay them. If "non-exempt", hour 241 is at time and a half. If you are "exempt", hour 241 is straight time. I went way over 240 during IKE and made a couple of grand in O/T.

The county mandates pay over 240 hrs. So you either send someone home when they hit 240, or get the checkbook. It's not optional. Failure to do so is a FLSA violation and subjects the employer to treble damages.

At least that's what I recall from working at the county. I burned all my comp time on terminal leave so I was collecting pay while not working, and took 11 days pay for outstanding vacation balance.

Anonymous said...

Just to be clear on the subject, the ADA's are not the only ones that are penalized by this system.

County clerk, district clerk, tax office, and every other county employee receive the same compensation.

Anonymous said...

I wish you were right Denholm. You worked at HCSO and the policies were in place to honor the 240 rule. At the DA's Office, most young prosecutors work "for free." No policies have ever been put in place for a prosecutor to earn ovetime when they hit 240. Maybe anon 4:50 has a point and those that are maxed out are afraid to point it out for fear of losing their jobs. And by the way Anon 4:50, most prosecutors were working at their jobs long before a recession. It has never been about the money, but it sure would be nice if the "value" of the work was noticed every now and then. Most ADAs regularly make financial sacrifices.

Michael said...

Aren't Harris County ADA's exempt employees for the purpose of federal labor laws?

Anonymous said...

anon 542- most are afraid they could not make it in private practice.when i was there that was a big fear.most like what they think are the secure government jobs.murray will do great .lets see how the rest that have left and will be leaving do.why do you think some that left jumped to go to work for the government in other places? they were afraid of the real world,not because they were dedicated public servants.

Anonymous said...

anon542 they get a paycheck every month for the work. if they do the job right they get personal satisfaction. what do they expect?they must like their jobs or they would not be so fearful of losing them. i bet murray did his job because he believed he was doing the right thing,not because of the money.i never heard him complain.some are afraid to be on their own.they want the security and the power they never had before

Anonymous said...

Anon 4:50 - How is working at the DA's office not a real job? Do I not go in at a certain time in the morning? Do I not leave at a certain time in the evening? Do I not do things in between those hours like answer phone calls, write memos, file documents away, send mail, read memos, drink coffee, eat lunch, attend meetings, answer to my supervisor, get judged based on my performance, etc.? To my knowledge, those are the normal routines at just about every "real" job.

Oh, I see now. Is it not a real job because in addition to all of that, I manage a court docket of nearly a thousand cases, work with defense attorneys, court staff, and judges, do case research, meet with witnesses and victims, assist officers in their investigations, and kick ass in trial for the citizens of Harris County? Is that what makes this NOT A REAL JOB?

You can keep your "janitorial technician" position, or whatever the hell else it is you do. I'll keep my job, dance circles around your workload, and gladly get maxed out at 240 comp hours.

Arthur Seaton said...

Anon 450--
A real job? Up yours, jackhole.

A Harris County Lawyer said...

I don't think anyone who is even remotely familiar with the CJC could ever say being a prosecutor isn't a real job, anymore than they could say being a defense attorney wasn't a real job - or being a judge, clerk, bailiff, court coordinator, etc. is a real job.
There are different aspects of being prosecutor than there is being a "free world lawyer", certainly, but the most significant one that I see if that the salary and benefits are stable. That certainty doesn't make the job less stressful or the workload less difficult. I've only been out of the DAs office for a short amount of time, and I can already feel a decrease in the stress level.
Anyone who would indicate being a prosecutor isn't a "real job" would only be correct in the sense that being a prosecutor is so much MORE than just a "real job".

Anonymous said...

anon 622-we all feel better knowing you are making all these sacrifices for the citizens of harris county.but have you ever had a real job?

Anonymous said...

Arthur, sounds like you spent a lot of time with Chuck R.how is he doing these days?

Roxy said...

Yes It's legal for the county to cap compat 240 and only pay 50% when you leave - under the Fair Labor Standards Act, employees who are exempt from the Act(i.e. lawyers) aren't entitled to be compenstated for any overtime. Basically, there are no laws rgulating how employers treat those exempt from the FLSA in the pay department.

So, the county letting exempt employees acrrue comp and pay them for it upon separation is actually out of the goodness of the commissioner's hearts - that is to say not mandated by law.

The secretaries (and probably investigtors) at HCDA are not exempt and are entitled to be compenstated under the federal statute at time and a half for ANY hours worked over 40 in one week. But, the FSLA also lets employers award compensatory time in lieu of overtime pay -- non-exempt employees accrue comp at 1.5 times the hours actually worked --- So if secretaries max out on comp and still work over 40 hours per week, they're entitled to overtime pay $$$$$. Which is why the HCDA's operations manual doesn't allow secretaries to accrue comp!!! Least they bust the Bert(and now JIM) -controlled budget!!:)

I practice criminal law too - but sometimes it's a good idea to bone up on law outside your area of expertise - especially if you get your practice booming and need to hire help . . . . just a word to the wise - you can be personally liable (treble damages) for a violation of the FSLA - google unpaid overtime sometime and check out all the plaintiff lawyers just waiting to sign up your disgruntled employee

Thomas Hobbes said...

It's a matter of the County policies in place.

Generally . . .

Nonexempt employees earn comp at 1.5 hours for each excess hour worked. I believe exempt County employees earn 1 hour, although I don't believe the FLSA requires the County to compensate exempt employees for overtime. However, no one works for the County for free; either the employee or the employer would have to underreport the number of hours actually worked.

At separation, exempt employees are paid in full for their comp balance. Again, under the FLSA, I believe the County does not have to compensate exempt employees for overtime, but the exempt employee does receive payment for half of his/her comp balance.

Leviathan

jigmeister said...

It's amazing how much stress you are under as a prosecutor. And the thing is that you don't realize that until it's gone. I had felt much better after retiring and all the illnesses that I had went away. You will even stop losing your hair Murray!
I am afraid the stress level under Patty will be much higher.

I wouldn't pay much attention to those who think DA's don't work hard. Being under valued was part of the job.

What are you doing now, or are going to do now, John?

Casey

freedomfighter said...

If I did it, any prosecutor who so chooses could make it in "private practice". In this regard, it's funny how some people criticize and judge others when they have never walked in the shoes of the critiqued.
Hanging up a a shingle and setting up your own shop is only one of the many options available to prosecutors who venture out of government employment. Hey, the troll can fire any ADA at will just like a boss in the private sector can. There is no difference in job security issues.
People tend to fear change and the unknown that goes with it. However, if you are willing to work hard, change will provide opportunity and success.
I am proud to have worked with many awesome ADAs at HCDA and have every confidence in the world that each will be a great success when and if they decide or are forced to enter the "real world"; which in many respects is a lot less traumatic then government employment--especially with the new administration.

Brew95 said...

Of course being a prosecutor is a "Real" job. Most work "Real" hard for "Real" little money.

Anonymous said...

Just to be clear on the subject, the ADA's are not the only ones that are penalized by this system.

Everyone is.

Look--they're salaried. Comp tie is a benefit, and 90% of the lawyers out there (if not more) don't even get that. I used to work at a firm that allowed four weeks vacation per year. But if you took it, they'd hold you back for partnership and possibly even fire you. Which wasn't a big deal, because making the hourly billing requirements meant that you'd never be able to take that much vacation anyway.

To make a long story short--they're salaried, it's legal, and they're lucky there's a comp time system at all because it's a benefit, not a requirement.

This truly is a non-issue.

Seer said...

Comp time, huh? Y'all are lucky. I'm on my second county as an ADA and our rules have always been that only the elected can grant comp time. And you only get 4 or 8 hours or the like. In my current county you cannot even have 200 hours of sick time.

Even if I could have 240 hours of comp time, I could never have used it. You just fall further behind. But my dad always told me any job worth doing required more than 40 hours per week to do.

Anonymous said...

SEER, you are a realist and your dad taught you well. sounds like these harris county people are not used to work without complaining.where we work we would call them cry babies. we too work more than 40 and are glad to do it.

Anonymous said...

Sounds like you folks need to start a union.

Jason said...

I'm no lawyer, but I do believe federal law prohibits 'working for free.'

denholm said...

Casey,

I assume that was for me. I'm practicing law at Musick & Musick. I'm seeing it from the other side of the table now and it's been quite interesting. And you were right about the stress level going down when you leave.

John

Anonymous said...

Roxy is right on. As an ADA, I routinely work 7A-7P M-F just to keep up and avoid weekends. Any time above 40 hours is not compensated (or even accrued as comp time) because I am an exempt employee under the Fair Labor Standards Act. Harris County Commissioners have gone above and beyond their legal obligation in providing the comp time for Harris County ADAs.

That being said--I would never bitch about the hours required because I love the work I do.

Anonymous said...

I'm no lawyer, but I do believe federal law prohibits 'working for free.'

They're not working for free dingleberry, they're salaried employees.

Anonymous said...

I have had a real job before being a DA. I can tell you I worked hard before and I work hard now.

I have been maxed on comp time since around 2005, and I never hope to use it. But that is fine...ADA's do the job that needs to be done because that is life.