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Thursday, September 25, 2014

Ind. Gov't. - "DCS employees sue agency over claims of unpaid overtime" [Corrected]

From Marisa Kwiatkowski's just-posted story for the Indianapolis Star:

Two Indiana Department of Child Services employees paint a dismal picture of life as an investigator for the state agency.

In federal court records filed last month, Arlene Nunez and Veronica Martinez claim they are forced to work during their lunch hours, rarely get five hours of continuous sleep during on-call shifts and spend extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.

Nunez and Martinez filed a lawsuit against DCS in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they have worked.

Nunez and Martinez also said their employer deducted time from weeks when they had worked more than 40 hours and shifted it to weeks they had worked less in order to avoid paying overtime, court records state.

Nunez and Martinez said they complained about working during their lunch breaks, but their supervisors responded, “Don’t even bring it up,” according to the lawsuit.

Both women work as family case managers out of the agency’s Lake County office. Nunez has worked for the state for more than 14 years, and Martinez for 36 years, state records show.

“Just because DCS is a state agency doesn’t exempt it from having to meet the requirements of the Fair Labor Standards Act,” said Nunez’s and Martinez’s attorney Adam Sedia, of the Dyer-based firm Rubino, Ruman, Crosmer and Polen. “We’re holding DCS to the same standard as any other employer.”

ILB: The case is Nunez et al v. Indiana Department of Child Services (2:14-cv-00293-JD-JEM), filed Aug. 20, 2014, before Judge DeGuilio. Here is the 7-page complaint.

[Updated at 10:35 AM] A reader points to an error in an Indianapolis Star paragraph not quoted above - the story should read "class action", NOT "collective action"!:

Nunez and Martinez are asking the federal court judge to certify the lawsuit as a collective action, which means DCS would be required to release the names and contact information of similarly situated employees. Those employees could then opt to join the lawsuit, Sedia said.

[Corrected at 3:40 PM] Apologies to the IndyStar. The ILB has now heard from the attorney in the DCS lawsuit, who writes:

I am the attorney representing the plaintiffs in the story you covered in this post.

The reader who claimed to find an error in the story is not correct. We are seeking certification as a collective action under 29 U.S.C. § 216, which is completely different from a class action under FRCP 23. A collective action is “opt-in,” whereas a class action is “opt-out.”

I ask that you please note the correction. I am happy to answer any questions you might have.

Thank you,

Adam J. Sedia
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana 46311

Posted by Marcia Oddi on September 25, 2014 09:23 AM
Posted to Indiana Government