Our union contract guarantees members a minimum of two hours of pay if they are called back to duty outside of their regular schedule. In 2021, the Nebraska Department of Health & Human Services (DHHS) refused to pay members the minimum two hours of callback pay unless they reported to a physical worksite. Many employees were working from home during the COVID-19 pandemic, and DHHS refused to pay workers the two hour minimum callback pay if they were called back and performed the work from their home.
In response, NAPE/AFSCME filed a grievance because our contract contains no provision that requires the employee to perform the work at a specific location to qualify for the two hour minimum callback pay. NAPE prevailed in that grievance action, and the Arbitrator specifically noted that DHHS unilaterally added a requirement to report to a physical location to receive the two hour minimum callback pay.
Shortly thereafter, the Nebraska Department of Transportation (NDOT) also refused to honor the two hour minimum callback pay for employees who were called back to duty to perform work from their home. NAPE filed a new grievance, however, the DAS Employee Relations Administrator exercised his authority and ordered that the case be heard by the Nebraska State Personnel Board instead of an arbitrator.
A Hearing Officer was appointed on behalf of the State Personnel Board and conducted a hearing in accordance with our contract. Like the previous arbitrator, the Hearing Officer agreed with NAPE that our contract has no provision requiring an employee to report to a physical work location to receive the two hour minimum pay. The Hearing Officer recommended that the State Personnel Board sustain the grievance and award the two hour minimum pay to our members.
The State Personnel Board, however, rejected the Hearing Officer’s recommendation and instead ruled that our contract does not allow for two hours of minimum pay unless the workers report to a location away from their home. In response, NAPE/AFSCME appealed the Personnel Board’s decision by filing a petition for administrative review in the District Court of Lancaster County.
The case was heard by District Court Judge Ryan Post. Judge Post reviewed the Personnel Board’s decision in its entirety, and Judge Post came to a different legal conclusion than the Board. Judge Post did not rule on the issue of whether an employee must report to a physical work location, but instead ruled that an employee who is in an “on call status” is “on duty” and, therefore, is not entitled to the two hour minimum pay. This is contrary to how the parties have handled this issue in the past. Employees have always been paid for two hours minimum if they are called back to a physical location when they are on call.
Judge Post’s decision, while disappointing, did not directly address the issue at hand. In fact, Judge Post wrote in the order that his decision was only based on the facts before him, and that under different facts, an employee could be entitled to a minimum of two hours of call back pay under our contract. A copy of Judge Post’s decision can be read by clicking here.
Based on the reasoning in Judge Post’s order, NAPE/AFSCME has decided not to appeal the decision but instead will continue with a similar case that we have pending a hearing before the State Personnel Board. While we fully expect the State Personnel Board to rule against us again, NAPE/AFSCME will appeal that decision by filing a new petition for administrative review in the District Court of Lancaster County.
NAPE/AFSCME is committed to protecting and defending the rights of our members at all levels, including filing legal action when necessary. If you are not a NAPE/AFSCME member, will you stand with us by joining today?