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Agenda 11/14/2023 Item #16E 5 (12 Settlement Agreemeent and Releases)11/14/2023 EXECUTIVE SUMMARY Recommendation to approve and authorize the Chairman to sign twelve (12) Settlement Agreements and Releases by and between Collier County and employees in the EMS Battalion Chief II position classification, allowing for reimbursement of actual wages earned but not paid to certain employees from July 3, 2021, to June 30, 2023, as a result of the County’s good faith misclassification of status under the Fair Labor Standards Act (FLSA). OBJECTIVE: To approve payment of back wages for the period between July 3, 2021, and June 30, 2023, and authorize the execution of Settlement Agreements and Releases for employees in the EMS Battalion Chief II position who were entitled to overtime wages but were not paid as a result of the County’s good fai th misclassification of their employment status as exempt under the FLSA. CONSIDERATIONS: FLSA and its regulations provide, in part, standards for certain job classifications to be exempt from overtime compensation. In December 2022, the County’s Human Resources Division received a notice letter from the United States Department of Labor, Wage and Hour Division (WHD) indicating their intent to investigate Collier County for compliance with the Fair Labor Standards Act (FLSA). Specifically, they would be evaluating FLSA compliance for twelve (12) employees in the position of EMS Battalion Chief II. Following the WHD Investigator’s review of records submitted by the County and in-person interviews with over half of the EMS Battalion Chiefs, the County was informed of the Department of Labor’s determination that these employees should be classified as non-exempt and eligible for overtime compensation pursuant to FLSA regulations. The County reclassified the EMS Battalion Chief II position title in the County’s EMS Pay and Classification Plan as non-exempt, effective July 1, 2023, following a final recommendation from the Department of Labor. Additionally, the County will provide compensation to the employees assigned to this position title for actual overtime worked and earned from July 3, 2021, to June 30, 2023. To the extent that any reclassified employee received compensatory time in lieu of wages during that period, that employee will be compensated at the appropriate non-exempt employee overtime rate to make up for any shortfall in payment of wages. The Department of Labor WHD Investigator found that the EMS Battalion Chief II position did not meet the FLSA duties test for an administrative exemption, although the County believed the employees were properly classified as exempt. To qualify for the administrative employee exemption, all the following tests must be met: • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Attached, as Exhibit 1, is a sample copy of the Settlement Agreement and Release prepared for execution between the County and the EMS Battalion Chief II employees entitled to reimbursement under the FLSA. FISCAL IMPACT: The fiscal impact resulting from the proposed Settlement Agreements, which the County is required to make pursuant to Federal law, is estimated at a cost not to exceed $513,000. Funding for the settlement payments is available within EMS Fund (4050). GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this action. LEGAL CONSIDERATIONS: The FLSA requires the County to provide overtime compensation to the employees who were previously classified as exempt for a two-year period prior to the reclassification. The current, active employees at issue have been properly reclassified. The Settlement Agreement and Release has been prepared and reviewed by this Office. This item has been approved as to form and legality and requires majority vote for approval. - CMG 16.E.5 Packet Pg. 1436 11/14/2023 RECOMMENDATION: That the Board approve and authorize the Chairman to sign Settlement Agreements and Releases by and between Collier County and employees in the EMS Battalion Chief II classification, allowing for reimbursement of actual overtime wages earned but not paid to affected employees from July 3, 2021, to June 30, 2023. Prepared by: Amy Lyberg, Division Director - Human Resources Attachments: Exhibit 1, Sample copy of Settlement Agreement and Release ATTACHMENT(S) 1. EXHIBIT 1 - Settlement Agreement and Release EMS Battalion Chiefs (DOCX) 16.E.5 Packet Pg. 1437 11/14/2023 COLLIER COUNTY Board of County Commissioners Item Number: 16.E.5 Doc ID: 27121 Item Summary: Recommendation to approve and authorize the Chairman to sign twelve (12) Settlement Agreements and Releases by and between Collier County and employees in the EMS Battalion Chief II position classification, allowing for reimbursement of actual wages earned but not paid to certain employees from July 3, 2021, to June 30, 2023, as a result of the County’s good faith misclassification of status under the Fair Labor Standards Act (FLSA). Meeting Date: 11/14/2023 Prepared by: Title: Division Director - Human Resources – Human Resources Name: Amy Lyberg 10/30/2023 2:17 PM Submitted by: Title: Division Director - Human Resources – Human Resources Name: Amy Lyberg 10/30/2023 2:17 PM Approved By: Review: Human Resources Amy Lyberg Director Review Completed 10/30/2023 2:17 PM Corporate Business Operations Kenneth Kovensky Corporate Business Operations Review Completed 10/30/2023 9:31 PM County Attorney's Office Colleen Greene Level 2 Attorney Review Completed 11/01/2023 7:10 PM Emergency Management Michael Choate Additional Reviewer Completed 11/03/2023 12:24 PM Capital Project Planning, Impact Fees, and Program Management Ian Barnwell Additional Reviewer Completed 11/07/2023 3:47 PM Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 11/07/2023 3:51 PM Office of Management and Budget Christopher Johnson Additional Reviewer Completed 11/07/2023 4:14 PM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 11/08/2023 8:34 AM County Manager's Office Amy Patterson Level 4 County Manager Review Completed 11/08/2023 4:57 PM Board of County Commissioners Geoffrey Willig Meeting Pending 11/14/2023 9:00 AM 16.E.5 Packet Pg. 1438 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release executed by COLLIER COUNTY (the “Employer”) and __________________ (the “Employee”) is intended to effect the extinguishment of all obligations between the parties for and in consideration of any and all claims for past due salary, overtime wages, remittances and all other sums from the Employer made by the Employee up, through and including the date of execution of this Release arising from or relating to the Employer’s classification status of the Employee as exempt under the Fair Labor Standards Act (“FLSA”). The Employer and Employee hereby covenant and agree on the following in exchange for the consideration paid to the Employee hereunder, as well as, their promises to release one another as set forth herein. A. The Fair Labor Standards Act (“FLSA”) and its regulations provide, in part, standards for certain job classifications to be exempt from overtime compensation. B. An investigation was conducted by the Department of Labor, Wage and Hour Division (WHD) between December 2022 and June 2023 into the FLSA status of employees in the title of EMS Battalion Chief. At the conclusion of the process, it was determined that EMS Battalion Chiefs, previously not subject to the FLSA overtime provisions, should have been classified as non-exempt and eligible for overtime compensation pursuant to FLSA regulations. C. The parties agree that the Employee performed work that would entitle him/her to payment of actual overtime wages for the period between July 3, 2021, and June 30, 2023, resulting from the misclassification of his/her status under the FLSA in the amount of ____________. The Employee was reclassified as non-exempt on July 1, 2023. Payment of the unpaid overtime wage shall be reimbursed to the employee no later than the two pay periods following the execution of this Agreement. D. The Employee agrees that the amount set forth in Paragraph C above represents full payment for all hours worked over forty (40) hours per week for the period noted during his/her employment with the Employer and that he/she has no record(s) to indicate that he/she worked any additional hours for which he/she was not properly compensated. The Employee further agrees that he/she was paid at or in excess of minimum wage for all hours worked for the two years identified herein. E. The Employer and Employee further agree that it is appropriate to resolve any potential claim(s) arising under the FLSA by entering into this agreement to discharge all claims related thereto, subject to the terms and conditions set forth herein. In the event that the Employee is not currently employed in one of the subject classifications, this agreement pertains to that period of time in which the Employee was so employed during the period between July 3, 2021, and June 30, 2023. In consideration of payment of the above sum and the relinquishment of their respective legal rights with reference to the aforementioned matter, each party expressly releases the other, and their heirs and legal representatives, from all liability for such claims and demands, and further releases, acquits and forever discharges each other, of and from 16.E.5.a Packet Pg. 1439 Attachment: EXHIBIT 1 - Settlement Agreement and Release EMS Battalion Chiefs (27121 : EMS Battalion Chief FLSA Settlement Agreements 2 all manner of action and actions, suits, and controversies whatsoever, in law or in equity, relating to the Employee’s actual classification status under the FLSA as non-exempt as it pertains to the Employee’s wages and compensation earned from the Employer for the paid period identified herein. IN WITNESS WHEREOF, the parties, and or their duly authorized agents have signed and sealed this Settlement Agreement and Release on the date set forth below. ATTEST: CRYSTAL K. KINZEL, CLERK BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By:________________________ By:_____________________________ DEPUTY CLERK RICK LoCASTRO, CHAIRMAN _______________________ ____________________________ Witness Signature Employee Signature _______________________ Employee: ___________________ Witness Printed Name Print Name Dated: _______________________ _________________________ Witness Signature _________________________ Witness Printed Name Approved as to form and legality: ______________________________ Colleen M. Greene Managing Assistant County Attorney 16.E.5.a Packet Pg. 1440 Attachment: EXHIBIT 1 - Settlement Agreement and Release EMS Battalion Chiefs (27121 : EMS Battalion Chief FLSA Settlement Agreements