Vermont Seeks Immunity From Workers’ Overtime Lawsuit

The state can assert it is immune from a lawsuit by more than 700 state employees, a judge has ruled, in a case where the workers say they were paid hourly rates when they worked more than 40 hours a week but should have been paid time-and-a-half.

The state had said in sworn court documents in March that it would not try to block the lawsuit using the doctrine of sovereign immunity, which says private citizens are not allowed to sue the government in most cases. In June, the state changed direction and said it would use that defense.

And on Tuesday, a federal judge in Burlington said it could do so.

At stake in the suit, first filed in January 2010, is potentially millions of dollars in payments and damages that would be due the workers if they win, their lawyer said.

“The state has a real hard time keeping its word,” said Tom Somers, a Burlington lawyer representing the workers, who cited the state’s change in stance as the most frustrating part of the case.

Jonathan Rose, the assistant attorney general representing the state, said it was common for parties answering questions in the information-gathering stages of a lawsuit to change those answers.

“We don’t think there’s anything improper there,” he said.

The workers are mainly professional-level employees, said Human Resources Commissioner Kate Duffy. Court papers identify a wide range of affected people, from social workers to law enforcement supervisors to foresters.

The state argues that those employees are paid a salary, rather than an hourly wage subject to overtime. The only reason the employees get additional money for working more than 40 hours is that their union, the Vermont State Employees’ Association, has negotiated for that, Duffy said.

The main questions in the case are three, lawyers said:

• Should the case be dismissed because the state has sovereign immunity?

• Should the employees be considered hourly and eligible for overtime, or salaried and not required to receive it under the law?

• And finally, what does the nature of each job say about the question of hourly versus salaried pay?

Somers pointed to a section in state law that he says shows the state has waived sovereign immunity because it makes itself covered by a federal law that calls for time-and-a-half pay after 40 hours. Rose and Duffy disputed this interpretation.

On the second question, Duffy said hourly employees are not paid for time they don’t work. Because the state employees are guaranteed a minimum paycheck even when they work fewer than 40 hours in a week, they should not be considered hourly, she said.

Lawyers on both sides said the case hasn’t focused yet on individual job descriptions, but could later.

If the case reaches that stage, Duffy said she expected the number of plaintiffs would shrink considerably from its current 720.

“People like social workers would be knocked out almost immediately because of the duties they perform,” she said.