FLSA Update (July 31, 2007)

The law firms of Bernstein & Lipsett, P.C., and James & Hoffman, P.C., recently settled the Fair Labor Standards Act claims of GS-13 criminal investigators at IRS, DEA, BATF, USCS and USSS following a 2004 court ruling in favor of plaintiffs.

The Department of Justice has refused to settle the claims of approximately 1000 criminal investigators at many different grade levels at a wide range of agencies, including, among others, DCIS and NCIS. The claims of approximately 700 FBI agents also remain to be settled or litigated. (The FBI plaintiffs have the least amount of time at issue, as nearly all signed up after October 1994 when Availability Pay began and FLSA coverage ceased.) Counsel represent a number of non-1811 law enforcement personnel and those claims are also being litigated or settled.

DOJ recently moved for summary judgment with respect criminal investigators who work in the Offices of the Inspector General at HUD and HHS, and plaintiffs filed a cross motion for summary judgment. The matter has now been fully briefed. Counsel have attached the principal briefs in these cases to explain the government's position that IG criminal investigators and criminal investigators at all agencies that not defined as law enforcement are subject to the "administrative" exemption. (DOJ has not argued that criminal investigators are subject to the professional exemption, a narrow category, or the executive exemption, which includes supervisors.) Counsel do not know when the court will rule.

If the court rules for plaintiffs, counsel anticipate a quick resolution of the remaining claims in this unduly prolonged proceeding. If the court rules in favor of the government, plaintiffs will certainly appeal and more delay can be expected. (The FBI claims are subject to an entirely different set of objections and they may well settle regardless of the outcome of the IG criminal investigators case.)

For more briefs and updates, you may go to www.jamhoff.com, where the briefs and decisions will be posted.

These documents include further details (pdf):
Plaintiffs' HUD Motion for SJ
Plaintiffs' HUD Reply Brief
DOJ HUD Reply to Plaintiffs' Motion
DOJ Motion for Summary Judgment HUD IG