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Sunday, August 31, 2014

Full-time city workers moonlighting in Nashua Police Department sue city for back wages

NASHUA – Two city employees who work part-time as communications technicians for the Nashua Police Department are suing the city after an error was uncovered in how much they were compensated for overtime work over several years.

The employees, Cheryl Walley and Jose Santiago, have full-time jobs in other city departments – Walley as a coordinator in the assessing office and Santiago as a parking enforcement officer. ...

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NASHUA – Two city employees who work part-time as communications technicians for the Nashua Police Department are suing the city after an error was uncovered in how much they were compensated for overtime work over several years.

The employees, Cheryl Walley and Jose Santiago, have full-time jobs in other city departments – Walley as a coordinator in the assessing office and Santiago as a parking enforcement officer.

The pair occasionally fill in as communications technicians when extra workers are needed at the Police Department, answering calls and passing information along to dispatchers, who radio police officers in the field.

When the city moved to a new payroll management system last year, employees discovered for the first time that overtime compensation was being calculated incorrectly for Walley and Santiago. The issue also affected two other workers who moonlight in the Police Department.

Nashua Corporation Counsel Steven Bennett said the city failed to keep a cumulative tally of the hours the employees worked in their dual roles. Instead, pay was tabulated separately for time worked in the Police Department and in the employees’ regular full-time jobs.

“We discovered a mistake and tried to correct it,” said Bennett, who is representing the city against the lawsuits.

The city notified Walley and Santiago of the error last year and provided both employees with additional compensation. However, the workers say they’re entitled to more money and damages stretching back at least three years.

Walley and Santiago are being represented in separate lawsuits filed in Hillsborough County Superior Court by Nashua attorney Steven Bolton, a former city alderman. Despite having full-time human resources and payroll personnel working for the city, Bolton said, the overtime issue went undetected for years.

“Certainly, red flags should have been going off in the heads of these professionals that, ‘We’ve got to look into this,’ and apparently no one did,” he said. “I would say that doesn’t speak highly of the skills that were brought to bear.”

Error detected in 2013

Walley first learned of the payroll error on Sept. 13, 2013, when she encountered Bennett in a hallway near the assessing department. Bennett told her the city “recognized that she was owed money,” according to court documents.

“He assured her that there was nothing she did wrong and that her work in both the Assessing and Police Departments had been exemplary and that her eligibility to work at the Police Department would not be impacted,” Walley’s court claim reads.

Bennett met with Walley and her attorney on Sept. 20 in the city’s legal offices. She said Bennett reaffirmed that her work had been satisfactory, but said going forward, she would only be allowed to work at the Police Department on Fridays and Saturdays, after she had completed her regular duties in the assessing department.

He also asked her to sign an agreement that provided $12,814.96 as compensation for money she was owed. A negotiation ensued, and Walley was paid several days later. Santiago also received a check from the city.

Arguments in court

Both employees now argue the city owes them additional compensation. The dispute centers in part on whether the money they earned was overtime pay or regular pay.

In 2013, Walley was earning about $22.50 an hour at the Police Department. Bolton maintains that under federal law, Walley was entitled to one and a half times as much money.

However, the city argues the roughly $22.50 per hour she earned was an overtime rate, and that the terms of her employment were spelled out in a long-standing agreement with the Police Department.

“Our position is that per diem rate actually represented an overtime rate,” Bennett said.

The city has filed a counterclaim against Walley, contending its $12,815 payment to her last year was far in excess of how much she was owed.

Another disputed question is whether Walley and Santiago are entitled to two or three years’ worth of compensation. The city argues it’s only obligated to make amends for mistakes stretching back two years because it acted in good faith.

Bolton maintains his clients are entitled to additional money because the city should have detected the error.

“If the employer willfully failed to comply with the law in regard to overtime compensation, and willfully in this case means the employer knew that it was doing something wrong or recklessly took no efforts to determine what its legal obligations were, then the back pay goes back three years,” Bolton said.

Tallying damages

Bolton said in Walley’s case, he will potentially seek an award of more than $125,000, representing back pay, damages and wages lost while Walley was temporarily prevented from working shifts as a communications technician after the overtime issue was discovered.

The per diem program at the Police Department was put on hiatus from about October 2013 through April. Walley wasn’t called in for shifts during that time. Bolton said the move was intended to punish Walley for filing a lawsuit, and that she should have been eligible for about $50,000 worth of work during that time.

“All of that just in retaliation for the fact that she didn’t just go along with the city’s wishes,” he said.

The city maintains it temporarily suspended the per diem program to ensure it was in compliance with the law. In court documents, the city denies the decision was punitive, and also denies that Bennett made any guarantee that Walley’s eligibility for communications technician work wouldn’t be affected.

Bennett said the lawsuits boil down to an error in calculating when the two employees hit 40 hours in their respective workweeks. The parties have agreed to enter mediation ahead of a proposed three-day jury trial, slated for mid-December.

“This is not a case where she was blindly led down a road,” Bennett said of Walley. “She was given the money. They had an agreement. There might have been an error in the police’s calculation of some of the overtime rate, but there was nothing malicious about it.”