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CMS: 9 to 12 months to determine FLSA status

Tuesday, Jun 30, 2015

* A letter from CMS General Counsel Michael Basil to the governor’s general counsel discusses how the state will determine eligibility for Fair Labor Standards Act designations for all state employees. That was a critical aspect of the 2007 government shutdown employee payroll case, you will recall. The comptroller argued at the time that state agencies just didn’t have time to put the data together.

CMS’ Basil claims it would take nine to twelve months to accomplish the task

(M)y office reasonably estimates that it would take approximately nine to twelve months at current staffing levels to determine with the required degree of accuracy the FLSA status of the approximately 45,000 employees who perform work for the State of Illinois under the jurisdiction of the Governor’s Office.

So, they may be able to convince a judge to go along again and order paychecks to be issued. We’ll see. The last judge was mighty reluctant. Then again, no judge wants to be put into a position like that.

- Posted by Rich Miller        

51 Comments
  1. - Keyser Soze - Tuesday, Jun 30, 15 @ 1:50 pm:

    Does CMS have computers?


  2. - Norseman - Tuesday, Jun 30, 15 @ 1:54 pm:

    I’ll take cheese on my whopper.


  3. - Johnnie F. - Tuesday, Jun 30, 15 @ 1:54 pm:

    What, an agency short staffed for the workload?…say it ain’t so.


  4. - Ahoy! - Tuesday, Jun 30, 15 @ 1:54 pm:

    Also, who is going to file the suite against 45,000 people receiving pay checks? Does this even get to a judge?


  5. - Arthur Andersen - Tuesday, Jun 30, 15 @ 1:55 pm:

    And they wonder how they got that nickname.


  6. - Rich Miller - Tuesday, Jun 30, 15 @ 1:58 pm:

    ===who is going to file the suite against 45,000 people receiving pay checks? ===

    What sort of a goofy question is that?


  7. - Norseman - Tuesday, Jun 30, 15 @ 2:00 pm:

    Thank god Rauner hired superstar staffers. It may have taken 13 months without their great management style.


  8. - A guy - Tuesday, Jun 30, 15 @ 2:06 pm:

    Having a tough time deciphering whether many of you want to see these folks get paid or not. Huh, that’s kinda interesting.

    On another thread, the Governor is taking his daily routine beating for not being truthful. Here, it appears that the administration is talking to someone about this. Not sure how productive all this is in light of the fact some folks are depending on being paid.


  9. - Norseman - Tuesday, Jun 30, 15 @ 2:12 pm:

    === Having a tough time deciphering whether many of you want to see these folks get paid or not. Huh, that’s kinda interesting. ===

    Perhaps we want everybody to get paid and services to be delivered.


  10. - Arthur Andersen - Tuesday, Jun 30, 15 @ 2:13 pm:

    -I’ll take cheese on my Whopper-

    Have it your way!


  11. - Team Sleep - Tuesday, Jun 30, 15 @ 2:14 pm:

    Burger King is now serving burgers at breakfast. Their signs say so. Norseman - thought you might like to know. :)


  12. - VanillaMan - Tuesday, Jun 30, 15 @ 2:17 pm:

    Loudspeaker: “Attention everyone - attention”
    “We have determined with the required degree of accuracy the FLSA status of the approximately 45,000 employees of you who perform work for the State of Illinois under the jurisdiction of the Governor’s Office.”

    “The following list are those effected and have been determined to be unnecessary…”

    “Rauner, Bruce”

    “Thank you - that is all.”


  13. - Dirty Red - Tuesday, Jun 30, 15 @ 2:20 pm:

    Nine to twelve months? Did the State just fail at failing?


  14. - RNUG - Tuesday, Jun 30, 15 @ 2:23 pm:

    == Does CMS have computers? ==

    Yes, but all the people who knew the systems inside out retired many years ago … and the State, through a combination of personnel rules, shortsightedness, and perceived budget savings, failed to hire people in time to get them trained before the institutional knowledge walked out the door.


  15. - RNUG - Tuesday, Jun 30, 15 @ 2:25 pm:

    - Team Sleep -

    I’m still waiting for breakfast all day at my local McDonalds.


  16. - Thunder Fred - Tuesday, Jun 30, 15 @ 2:32 pm:

    - RNUG - Tuesday, Jun 30, 15 @ 2:23 pm:

    == Does CMS have computers? ==

    “Yes, but all the people who knew the systems inside out retired many years ago … and the State, through a combination of personnel rules, shortsightedness, and perceived budget savings, failed to hire people in time to get them trained before the institutional knowledge walked out the door.”

    So it is your position that current state workers are incompetent? What exactly are you trying to say? Really odd comment.


  17. - A Jack - Tuesday, Jun 30, 15 @ 2:32 pm:

    I don’t think it would take nearly that long. It should be doable by title. Where the mess will be is reprogramming our ancient payroll systems to be able to handle that task. And of course there will be problems with allotments, such as service purchases and deferred comp, let alone any child support payments. And then to have to undo it all after the budget is passed. Well there goes your overtime budget for the year.


  18. - RNUG - Tuesday, Jun 30, 15 @ 2:40 pm:

    == So it is your position that current state workers are incompetent? What exactly are you trying to say? ==

    Not saying the people are incompetent, just saying some of the software systems the state is using are pretty old and a lot of the people who wrote them / really understood them are long retired. Those systems were built to be bulletproof reliable; they were not easily changed or modified.


  19. - A guy - Tuesday, Jun 30, 15 @ 2:40 pm:

    +++ Norseman - Tuesday, Jun 30, 15 @ 2:12 pm:

    === Having a tough time deciphering whether many of you want to see these folks get paid or not. Huh, that’s kinda interesting. ===

    Perhaps we want everybody to get paid and services to be delivered.+++

    Hard not to be for that. Maybe you could suggest some movement in order to make that a reality. Progress is not; 12 one month budgets that still have a $4B hole when added together. More revenue will not come without some changes, and it absolutely won’t come with bite sized budgets. That’s an inane way to go forward.


  20. - Norseman - Tuesday, Jun 30, 15 @ 2:45 pm:

    A guy, the Gov had an opportunity to cut the budget that was sent to him. He also doesn’t have to spend what is appropriated. So Rauner wears this hat.


  21. - Thunder Fred - Tuesday, Jun 30, 15 @ 2:56 pm:

    - RNUG - Tuesday, Jun 30, 15 @ 2:40 pm:

    == So it is your position that current state workers are incompetent? What exactly are you trying to say? ==

    “Not saying the people are incompetent, just saying some of the software systems the state is using are pretty old and a lot of the people who wrote them / really understood them are long retired. Those systems were built to be bulletproof reliable; they were not easily changed or modified.”

    So you’re doubling down on calling state workers incompetent? You have directly said twice that they lack a basic skill to do the required job. Very odd.


  22. - A Jack - Tuesday, Jun 30, 15 @ 3:00 pm:

    RNUG is absolutely correct on the age of those payroll systems. Most of the code was written back in the 1970’s and those persons have long retired. It is like trying to read a Dr. Seuss novel translated into Chinese.


  23. - Six Degrees of Separation - Tuesday, Jun 30, 15 @ 3:01 pm:

    it absolutely won’t come with bite sized budgets. That’s an inane way to go forward.

    Every federal transportation budget in recent history has been funded this way, with dozens of temporary stopgap bills that get extended when the current one is about to run out. Not the ideal way to do business, but it keeps the doors open when Congress and the Administration can’t agree on a more permanent solution.


  24. - A guy - Tuesday, Jun 30, 15 @ 3:06 pm:

    ===Norseman - Tuesday, Jun 30, 15 @ 2:45 pm:

    A guy, the Gov had an opportunity to cut the budget that was sent to him. He also doesn’t have to spend what is appropriated. So Rauner wears this hat.===

    C’mon dude. You’re one of the guys talking about separation of powers and co-equal government. Look at the last several budgets this crew has lobbed over to the Gov’s office. Especially this one and the last one. You want to sit through a ton of amendatory veto votes? That sure speeds everything up.

    Bad budgets have bad consequences. Let’s confine this to the budget the GA sent him. Goofy on it’s best day. Meant to trip up and score political points, just like the pointless debates and hearings. Then you get offended when they’re called phony and sham.

    What would you call them? Well drafted?
    I don’t think you would.


  25. - Six Degrees of Separation - Tuesday, Jun 30, 15 @ 3:07 pm:

    Thunder Fred-

    What is it with you? To put it this way, try to get your Model T worked on in a Tesla garage. It’s not that they might have a few brilliant mechanics, but they don’t have time to take off from their regular tasks and learn how to fix one of those old-fangled machines, without the current customers piling up in the waiting room.


  26. - RNUG - Tuesday, Jun 30, 15 @ 3:09 pm:

    - Thunder Fred -

    The programming languages some of those applications were written in haven’t even been taught in the schools for many, many years.


  27. - walker - Tuesday, Jun 30, 15 @ 3:43 pm:

    I find this a stunning claim. To operate at all they have to make FLSA status assumptions. They must be saying that we need months to review everyone so that we can reclassify everyone possible to meet other goals. Remember, the greater Team Rauner includes lawyers in Washington, and from both WI and OH, who have as an ideological goal of destroying the FLSA, among other anti-worker efforts.

    (No, John Bradley, they are not all on the Governor’s payroll. Most are paid by PACs.)


  28. - Oswego Willy - Tuesday, Jun 30, 15 @ 3:45 pm:

    ===Look at the last several budgets this crew has lobbed over to the Gov’s office. Especially this one and the last one. You want to sit through a ton of amendatory veto votes? That sure speeds everything up.===

    That’s the job of a governor.

    Also, Rauner despises owning… anything.

    Why cut here, not there, Why fund this, not that….

    That’s a governor’s Amendatory Veto power.

    The safe play? Veto everything, start over, try to blame ANOTHER budget on the Legislature, but sign a tax increase.

    Those who should be most upset with the Ed Approp bill signed, everything else vetoes should be the GOP GA.

    Boy Rauner owns them…


  29. - A Jack - Tuesday, Jun 30, 15 @ 3:53 pm:

    Yes payroll is writen in COBOL. You can’t even get a class in it anymore. There are a few COBOL programmers left at the state, but they are reaching the age of retirement fairly quickly.

    And believe it or not, private industry pays programmers considerably more, so it is difficult for the state to find qualified persons in that area. You have a state that wants to modernize to cut costs, but unwilling to pay the people who can make it happen.


  30. - Truthteller - Tuesday, Jun 30, 15 @ 3:56 pm:

    No one has suggested it would be wise to shut down state services.the employees have been asked to come to work. Presuming they do, they should not have to worry about being paid on time. The simplest thing would be to appropriate sufficient funds to meet payroll until a new budget is adopted. Neither the Governor not the legislative leaders should balk at that. Come to work, get paid. Pretty simple


  31. - PolPal56 - Tuesday, Jun 30, 15 @ 4:02 pm:

    A Jack - And not just the salary to hire good people, but also hiring enough programmers and techs!


  32. - anon - Tuesday, Jun 30, 15 @ 4:21 pm:

    I absolutely believe it would take CMS that long to figure out exactly who is covered and who is exempt. I am constantly amazed at how these types of issues have never been resolved. From whether your position is covered under the personnel code, to are you essential or non-essential, to FLSA status, it takes forever, if ever, to reach a conclusion. Personnel just seems to want to leave things up in the air. It’s as if they’re afraid to make a decision and be held to it.


  33. - Demoralized - Tuesday, Jun 30, 15 @ 4:30 pm:

    Considering it takes 6 months just to get through the hiring process this doesn’t surprise me.


  34. - Bradley A. Zahn - Tuesday, Jun 30, 15 @ 4:34 pm:

    @ A Jack 2:32pm
    ==don’t think it would take nearly that long. It should be doable by title. ==
    Atty for Governor Rauner (Barclay?) testified to the General Assembly that there is also a Federal Law that prohibits making the determination based on Title, it must be made by job description, which would take further time, and would involve arbitrary judgment calls.


  35. - Careful what you wish for... - Tuesday, Jun 30, 15 @ 4:49 pm:

    It sounds like they want to re-evaluate the classification of every single employee to determine if they are eligible. If they have not already accurately made this determination, they are out of compliance with federal law. The very simple solution to this is to assume everyone that they are unsure about is FLSA eligible and pay all employees the federal minimum wage rate of $7.25/hr and time and a half for hours over 40 in a week. At an extra $3.68 per hour, I think a judge will be OK saying err on the side of caution for anyone you are not sure about.


  36. - Arthur Andersen - Tuesday, Jun 30, 15 @ 4:51 pm:

    RNUG and AJack are spot on here. Central Payroll is old as dirt. If you’re a State employee and ever wondered about the limited menu of payroll deduction options, that’s why.

    That is not a justification to take 9-12 months to do this FLSA task. Anon 4:21 above may be on to something, though.


  37. - Careful what you wish for... - Tuesday, Jun 30, 15 @ 5:01 pm:

    Ugh. Retracting and revising my previous post. I believe that under FLSA, all employees paid during a shutdown would be FLSA eligible because they would only be paid the federal minimum wage of $7.25/hr. In order to be overtime exempt, an employee must be paid more than $455/week. At the federal minimum, no employees would qualify. I believe that the job description analysis is irrelevant if the income qualification is not met.


  38. - Anyone Remember - Tuesday, Jun 30, 15 @ 5:02 pm:

    Arthur Andersen -
    “Central Payroll is old as dirt.”
    Limited menu? Try Green Screen - no GUI. Every time CMS staff tried to modernize, political management (regardless of Gov) shot them down.


  39. - Juvenal - Tuesday, Jun 30, 15 @ 5:51 pm:

    LOL.

    Rauner has been trying to drive state government into a ditch since Election Day, begging for a government shutdown, and he can’t even do that right.

    What in the world does he propose paying state employees to do? Even if a judge orders employees paid - and I pray it only applies to bargaining unit members - there is no operational budget.

    Is Rauner suggesting we should increase borrowing by delaying payments to vendors?

    I hope Credit One is planning to loan tens of
    Millions to those nonprofit providers out there, but keep in mind, under the prompt payment act every day we operate on credit costs us dearly in additional interest costs we can’t afford.


  40. - Juvenal - Tuesday, Jun 30, 15 @ 5:54 pm:

    AA:

    Team Rauner has known or should have known at least since January 12th what condition his condition was in.

    This is utter incompetence at the strategic level.


  41. - Oswego Willy - Tuesday, Jun 30, 15 @ 8:00 pm:

    ===Team Rauner has known or should have known at least since January 12th what condition his condition was in.===

    The True Believers never felt it would get this far. They thought MJM and Cullerton would have given up before a shutdown, or just being True Believers, don’t understand government


  42. - Mama - Tuesday, Jun 30, 15 @ 8:24 pm:

    Rauner got information from the agency heads about regarding operations in the event of a shut down/strike like a month or two ago. Where is that information?


  43. - scott aster - Tuesday, Jun 30, 15 @ 9:38 pm:

    I thought that the comp ran the payroll or does she just cut checks???


  44. - Norm DaPlume - Tuesday, Jun 30, 15 @ 11:18 pm:

    Juvenal @5:51 - “Even if a judge orders employees paid - and I pray it only applies to bargaining unit members…”

    On behalf of many people recently ripped from bargaining units, I resent that.

    My position was either ripped from the bargaining unit because I have responsibilities that my peers with similar titles do not have or through sheer luck of the draw or because management didn’t like me. Whichever may be the case, I now make significantly less than I would have if my position had been left in the bargaining unit. Now you would deprive me of pay altogether.

    Thanks!

    Awesome display of how the 1% can get everyone else fighting amongst themselves.


  45. - RunAground Agenda - Wednesday, Jul 1, 15 @ 12:04 am:

    I’m sorry to hear that Norm!

    @paying all employees federal minimum wage…this causes more problems than it solves for retirement calculations, health insurance premiums, life insurance premiums, etc.
    Expecting that appropriation will eventually follow, interest on any eventual backpay is another consideration.


  46. - Earnest - Wednesday, Jul 1, 15 @ 7:47 am:

    The state is indeed running on ancient software. It works very well but is not flexible to tweak. Updating to modern software would be a gigantic investment in software and labor and probably hardware. It would be well worth it for both the state and people who deal with the state, also the skills for state employees or private contractors to operate it are more generic and don’t require as much history. I think it would take Governor Rauner to sell such an expenditure to the public because it is part of running government like a business and becoming more efficient. Democrats would not be able to sell it right now. I certainly don’t see this happening in this year’s budget climate, but hopes it is on his list.


  47. - Juvenal - Wednesday, Jul 1, 15 @ 7:57 am:

    Norm:

    Certainly no animosity intended.

    I do believe that if all of the Rutan-exempt employees who work for the governor and make policy are forced to go without a paycheck, it will make any disruption of services that much shorter.

    Perhaps, for purposes of the suit, AFSCME can exclude Rutan-exempt hires under the governor’s purview hired since Jan 12.

    Better?


  48. - RNUG - Wednesday, Jul 1, 15 @ 8:04 am:

    == I thought that the comp ran the payroll or does she just cut checks??? ==

    Just cuts the checks


  49. - Juvenal - Wednesday, Jul 1, 15 @ 8:09 am:

    OW:

    Anyone who honestly thought they were going to get Democrats to sacrifice vital long term interests and core values over an appropriations should be fired.

    Anyone who didn’t understand that it is always necessary to be able and ready to carry out your threats if your ultimatums are not met should be canned.

    All they have managed to do is tarnish their credibility.

    Certainly, by the time the budgets were on his desk, with no progress for a month, they should have realized their strategy was failing.

    They should have accepted Democrats’ ceasefire, and line item vetoed the budgets to balance them.

    Then, you could have spent six months in total all out war and worked on revenue and reforms in January.

    By vetoing the budget, Rauner has only limited his own options, not Democrats’.

    You want to spend the summer attacking Bradley for killing a tax hike, go right ahead.


  50. - Oswego Willy - Wednesday, Jul 1, 15 @ 8:16 am:

    - Juvenal -,

    When Rauner signs the revenue increase with 67 GOP GA “green” lights, it will be all about Raunerite wins, at the cost of whomever is in front of them.


  51. - Juvenal - Wednesday, Jul 1, 15 @ 8:56 am:

    OW:

    After convincing every Republican to vote against the education funding increase and then gleefully signing it, I will not be surprised when Rauner hangs half the caucus out to dry after marching them single file to vote for his $3 billion tax hike.

    Expect every GOP legislator who supports prevailing wage and opposes right-to-work to have a primary, and do not expect Rauner to lift a finger downstate to defend his tax hike in 2016. He will realize very quickly how unpopular it is with his Tea Party base, and because he has alienated every GOP Union member already, he will have to appease the Tea Party.

    This is the same sinkhole Walker, Palin and Bachmann stepped into…once you start to alienate the middle, it is always easier to cater to the extreme than win the middle back.


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