11/4/09: A year ago, a federal arbitrator ruled in favor of the Union that all Securities Compliance Examiners in grades 11, 12 and 13 are eligible to receive higher pay rates for their overtime work. The SEC has now completed the process of converting all of the Securities Compliance Examiners to non-exempt (or covered) status under the Fair Labor Standards Act ("FLSA"). What this means is that, going forward, the overtime provisions of the FLSA will apply to these Securities Compliance Examiners in Grades 11-13. They will be entitled to choose between receiving time-and-a-half their regular rate of pay or one hour of compensatory time off for each overtime hour worked. The SEC will no longer be permitted to require them to take compensatory time.

Under the Arbitrator's decision, these employees are also eligible for back pay and damages. The Union and the SEC have negotiated an agreement for providing back pay to all Securities Compliance Examiners (or former Securities Compliance Examiners) who were not fully compensated for the overtime from November 5, 2000 through December 28, 2008. If the agency determines that you are owed back pay because you worked overtime and/or earned compensatory time duing that period, you will receive a notice and a claim form which explains the terms of the claims process.

All affected employees should have received the first notice prior to October 30. If you did not receive a notice from the SEC and NTEU, but you believe that you should have received one, please contact David Cunningham in HR at 202.551.7897 prior to December 30, 2009.

This case began on November 5, 2002, when NTEU filed a grievance with the SEC alleging that the agency had improperly exempted a number of positions, including Securities Compliance Examiners, from coverage under the FLSA. The SEC’s classification of the positions as "FLSA-exempt" caused employees working in these positions to receive compensatory time or overtime pay at a "capped" rate. The SEC’s classification decision may also have caused these employees to receive no compensation at all for time that may have been compensable under the FLSA.

On September 27-29, 2006, NTEU presented its case regarding the Securities Compliance Examiners in Grades 11-13 to Arbitrator Joseph M. Sharnoff. The SEC had previously agreed to reclassify Securities Compliance Examiners in grades 7 and 9 to FLSA coverage, effective in April 2006. In a well-reasoned decision received by NTEU in December 2008, Arbitrator Sharnoff agreed with the Union that the SEC had improperly exempted these employees under the FLSA. To review the decision, please visit the Chapter’s website.

In 2008, NTEU and the SEC were able to reach another settlement under which the agency agreed to reclassify a number of other positions under the FLSA and pay those employees back pay and damages. DOI will be making the payments of back pay and the SEC will be making the liquidated damages payments. The agency currently anticipates that these payments will be issued at the end of January to employees in the following affected positions: Administrative Program Specialist (Grade 9); ARP Specialist (Grades 9-11); Budget Analyst (Grade 9); Case Management Specialist (Grades 9-11); Contract Administrator (Grade 9); EDGAR Operations Assistant (Grade 9); General Supply Specialist (Grade 9); Internet Surveillance Specialist (Grade 9-11); Investor Assistance Specialist (Grades 9-11); Legal Instruments Examiner (Grades 8-9); Market Surveillance Specialist (Grades 7-11); Paralegal Specialist (Grades 7-13); Program Analyst (Grades 8-11); Program Information Specialist (Grades 9-11); Program Support Assistant/Specialist (Grade 9); Regulation Specialist (Grade 11); Research Assistant/ Specialist (Grades 7-9); Research Specialist (Grade 11); Securities Compliance Examiner (Grades 7-9); Securities Regulation Specialist (Grades 9-11); Space Management Specialist (Grades 9-11); and Telecommunications Specialist (Grade 9).