Lolo orders corrective action plan after labor dispute
To comply with an administrative settlement agreement with the U.S. Department of Labor, Gov. Lolo Matalasi Moliga has issued a directive for an ASG Corrective Action Plan to ensure full compliance when it comes to federal labor laws in American Samoa.
Lolo’s instructions were made in a Feb. 18 executive order, which states that the USDOL in late 2011 found ASG “to be non-compliant” with certain provisions of the federal Fair Labor Standards Act (FLSA) regarding payment of overtime and calculation of compensatory time.
ASG agreed in the administrative settlement to resolve the matter by bringing itself into compliance with FLSA, said Lolo, who has already made public that the monetary settlement payment of $916,093 to USDOL will settle overtime pay owed to ASG employees.
(The Lolo administration plans to submit the necessary appropriation bill to the Fono to cover this payment once a solid funding source is identified.)
According to the governor, the administrative settlement requires ASG to pay back wages to the affected employees, to adjust current compensatory time calculation and to adopt a “Plan of Corrective Action” to correct policies and practices in ASG to avoid further FLSA violations.
Lolo designated the Human Resources Department director to implement the Plan, which includes amendments to the American Samoa Administrative Code (ASAC), Chapter 4, to bring this local code into full compliance with FLSA.
DHR shall publish a Notice to adopt amendments to Chapter 4 of the Administrative Code by Apr. 30 this year and thereafter process them for adoption in accordance with the Administrative Procedures Act, according to the executive order.
PAYROLL MANAGEMENT CHANGES
The governor has directed DHR to identify all individuals who are exempt from FLSA overtime provisions and individuals who are salaried, rather than paid hourly upon their hiring.
Additionally, Treasury Department’s Payroll Division and DHR are responsible for recording all overtime and compensatory time for all non-exempt employees; all recorded hours are to be sourced from time sheets; recording hours through the use of “bubble sheets” is to be discontinued; and, DHR is to ensure all hours worked in excess of 40 hours per week for any non-exempt employees are paid at overtime rates or compensatory time rates. Compensatory time in excess of 240 hours is to be paid at the overtime rates.
According to the executive order, DHR is to develop written overtime and compensatory time policies for posting in common areas of each ASG agency and department and managers are responsible for policy enforcement.
The policy is to include:
• All FLSA-required provisions, including those pertaining to overtime, compensatory time, and nursing mother’s provisions;
• Notice that employees may not work over 40 hours per week and this means they may not be at their place of work over 40 hours per week;
• Notice that if employees need to work overtime, it must be pre-approved by their department or agency head;
• Employees “may not work at all during lunches” and if they do, they must be paid for the time; and,
• The policy is to be in compliance with the federal Family Medical Leave Act (FMLA).
The executive order also directs that the policy shall be published in the form of a handout, or incorporated into an employee manual for distribution to all employees.
Department directors and managers are to undergo annual FLSA and FMLA training administered by DHR, which is responsible for maintaining documentation of managerial training. It is to include detailed information as to the definitions under the FLSA.
Training must also include information regarding nursing mothers provisions.
Employees of ASG will undergo initial FSLA and FMLA training upon hiring and annual training thereafter, administered by department directors and managers. Individual departments are responsible for maintaining documentation of training and will provide copies of the documentation of training to DHR.
According to the governor, payroll management changes are to be implemented by Treasury by Dec. 31, 2013; and policies and training materials are to be developed by DHR by Jun. 30, 2013, with training of managers to be completed by Dec. 31, 2013 and training of employees to be completed by Dec. 31, 2014 and annually thereafter.
Lolo says that due to the need to achieve compliance with the USDOL administrative settlement, his executive order is effective immediately.