Tuesday, December 12, 2017

Puerto Rico Police officers sue former chiefs over owed pay

By on May 8, 2017

SAN JUAN – Three police officers sued former Police superintendents Héctor Pesquera and José Caldero in the U.S. District Court in San Juan to demand reimbursement of their unpaid wages for working overtime from 2010 to the present. They also seek additional remuneration for missed breaks and other compensation.

In the 34-page appeal, the plaintiffs—Frances Carlo, with 12 years in the police force, and retired officers Emily Ramos and Ricardo Bonilla—demand that the suit be certified as a class-action and asked to receive more than $5 million in overtime. 

Héctor Pesquera was designated to serve as secretary in the newly-created Public Security Department. The decision was announced mere days before Puerto Rico's national strike on May 1. (Courtesy)

Héctor Pesquera, center, was designated to serve as secretary in the newly-created Public Security Department. The decision was announced mere days before Puerto Rico’s national strike on May 1. (Courtesy)

They also request for attorney fees and damages to be covered, as well as a court order and declaratory judgment to stop the management “policy” that expects officers to work overtime without adequate compensation.

Pesquera, whose designation as the first Public Security secretary will be addressed Monday in the Senate’s session, served as Police superintendent between 2012 and 2013, while Caldero held the title between 2014 and 2016. Both the Police and the government of Puerto Rico are also included in the lawsuit.

Jane Becker, the plaintiffs’ lawyer, told Caribbean Business that at least 340 officers have requested to join the lawsuit, which hasn’t been certified as class-action yet.

Although the lawsuit alleges violations of the Fair Labor Standards Act (FLSA), Becker explained that the case was not processed through the U.S. Labor Department because it deals with overtime that the Police refuses to acknowledge.

Last year, the Puerto Rican government settled a similar lawsuit in the federal court filed by then-U.S. Labor Secretary Thomas Pérez, through the FLSA. In this case, the Police agreed to pay in subsequent years following 2016 about $8.7 million in overtime worked by more than 2,642 officers between 2010 and 2014.

In addition to FLSA violations, the plaintiffs allege that Caldero and Pesquera violated the Constitution of the Commonwealth of Puerto Rico (Article II, Section 16: Employee Rights), Act 83 of 1995 (Labor Day Act), and Act 53 of 1996 (the Police Act), among others.

Becker said that current Police Superintendent Michelle Hernández will be included as a defendant in the suit as well.

The lawsuit explains that police officers are asked to arrive 10 minutes before the start of their shift, but are not compensated for that time. They are also required to go to court to attend to their cases, even on their days off, and they aren’t “typically” paid for that work. When they don’t take meal breaks, they aren’t paid either. On top of this, they are required to always be on call to work outside their regular work hours without being paid for the expenses incurred to go to work.

Although the Police and government’s policy is not to pay overtime, but reward to public employees with compensatory time, police officers haven’t received this either. This is made difficult by the constant activation of officers for special events that require greater police presence such as cultural events or demonstrations.

The situation “worsened” with the implementation of a new electronic timekeeping system to record the hours worked, for which employees were required to include overtime worked since 2010 until the present, without giving them access to the books where they were supposed to write down hours worked.

Abiding by this rule, Carlo presented the time she worked outside regular hours, but on Oct. 12 was informed that 227 excess hours would be deducted for allegedly duplicating them. “Ultimately, the defendants did not keep precise records of all the time worked by the plaintiffs despite their legal obligation to do so,” the legal recourse reads.

Government asks for case to be dismissed 

After hearing the legal appeal filed Oct. 24, 2016, the defendants requested, through a motion, that the case be dismissed for lack of jurisdiction and because the controversy is res judicata, that is, it was resolved in the past.

The defendants, represented by the firm Aldarondo & López Bras PSC—hired by the Justice Department—argued that only the U.S. Labor secretary can request a remedy under the FLSA and cite several cases in which Puerto Rico is “immune” from federal actions to pay money for damages in individual cases under this legislation.

The defendants also requested an emergency motion to stop the proceedings in court until the previous motion is resolved.

Federal Judge Pedro Delgado granted the plaintiffs until June 5 to respond to the motions.

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