Attorney Cochran Wins Extraordinary Back Pay Remedy For On-Call State Employees Represented By SEIU Local 509

A neutral arbitrator has agreed with Attorney Tod Cochran and SEIU Local 509 that certain Department of Mental Health employees are entitled to overtime back pay for responding to emergencies while on call. The arbitrator ordered the employer to pay the employees for lost wages as far back as 18 months prior to the filing of the grievance.

Generally, a Union that fails to file a grievance within the timelines of the collective bargaining agreement is barred from any relief. This case involved two major exceptions to that principle. For one, where a situation repeats, arbitrators usually agree that each instance presents a continuing and/or new violation. This exception frequently occurs within the context of a pay practice. In this case, every instance that the employer failed to compensate employees for responding to calls while "on call" represented a new and continuing violation.

Arbitrators often allow a union to challenge a recurring practice but frequently limit the remedy to around when the grievance was filed. This case also involved the second exception. The arbitrator agreed that this case involved extraordinary circumstances to warrant an obligation of the State to compensate the three employees more than 18 months prior to the filing of the grievance. He ordered this remedy because the employer was well aware of its contractual obligations during this period, had provided similar compensation to other employees, and had agreed in litigation that the practice must be uniform.