Pay suit against state VA given class-action status

A Pulaski County circuit judge certified on Wednesday the class-action status of a lawsuit against the Arkansas Department of Veteran Affairs that contends the department failed to pay some nurses for overtime hours and automatically deducted lunchtime pay even when employees worked through lunch.

The lawsuit was filed last summer on behalf of nine nurses and nurse's assistants who had worked at the former Arkansas Veterans Home in Little Rock or the Fayetteville Veterans Home since 2010. The lawsuit states that 30 minutes of pay was deducted from hourly employees' paychecks even if they had to work through lunch, and that the nurses repeatedly worked before and after their scheduled shifts without pay in order to finish their duties.

In a response to the plaintiff's motion for class-action status, the state's attorney argued that the issue is too individualized to certify a class of plaintiffs.

"The court will need to convene well over 200 mini-trials to determine whether [the Department of Veterans Affairs] is liable to a given class member and the amount of each class members' damages. ... Such an unmanageable method of adjudication is a recipe for disaster, not class treatment," the response signed by Assistant Attorney General David Curran said.

Circuit Judge Chris Palmer filed an order Wednesday, however, stating that he agreed with the plaintiffs' request for class-action status. The state has 30 days to appeal the ruling. Curran said Wednesday that his office is still considering its options.

Attorney John Holleman, representing the nurses in the case, defined the class as all hourly nonexempt nurses and certified nursing assistants of the Arkansas Veterans Home and Fayetteville Veterans Home who at any time within the three years prior to the lawsuit through the date of final disposition worked overtime by working through their lunches and/or off the clock, and had 30 minutes automatically deducted from their hours. That includes employees dating back to June 12, 2010.

Holleman's amended complaint on behalf of the nurses filed in December states that the employees "frequently worked off the clock and were not compensated for this time. Plaintiffs had to work through their lunches on a regular basis due to understaffing and the business of the facility."

The complaint asserts that hourly employees were made to clock in and out at the beginning and end of their scheduled shifts, even if they had to come in early or stay late unpaid to complete their work. It states that workers complained, but nothing changed. It also states that the policy continues today.

A response to the complaint filed on behalf of the department acknowledges its practice of automatically deducting 30 minutes of pay from hourly workers but says there is a process allowing workers to notify a supervisor or submit a form if they work through lunch.

The exact size of the approved class is unknown, but Holleman wrote in the lawsuit that approximately 200 or more nurses were hourly employees, though he didn't specify a time frame. He said by phone Thursday that the true number could be as many as 1,000 or more, factoring in turnover at the facilities.

After any appeal is exhausted and if the class certification is upheld, Holleman's law firm will contact by mail anyone believed to be included in the approved class.

The nine nurses named as class representatives in the overtime lawsuit are Darlene Okeke, Rita Culberson and Peggy Johnson of Pulaski County; Debra Ann Jackson and Linda Hopkins of Jefferson County; and Agnes Lewis, Kissa Williams, Shirley Davis and Cynthia Rose of Washington County.

State Veteran Affairs Department Director Cissy Rucker declined to respond to specific questions about the lawsuit, but she sent a statement through the agency's spokesman that said: "This ruling is one of procedure and does not indicate ADVA has violated any personnel policy."

Rucker closed the deteriorating Little Rock Veterans Home in June 2012, a month after Gov. Mike Beebe appointed her to take over an agency troubled by lax budgetary and inventory oversight. The Little Rock home had been cited for poor oversight as well as illegally collecting fees from its most disabled residents.

The Fayetteville Veterans Home came under public scrutiny last year after the Office of Long Term Care substantiated several complaints against the home and its workers. The facility was cited for neglect in February in the Jan. 15, 2013, death of a patient. The nurse involved fought the neglect tag on her license and had it removed.

The home was cited in April 2013 for the Dec. 8, 2012, restraint of a patient that ended in the patient's arm being broken and again in the fall when a patient complained that his wounds repeatedly tore and bled when staff members replaced gauze pads. Then in November, a nurse was dismissed after a resident escaped past the secured area unnoticed to a downstairs lobby, and the home's administrator, Sarah Robinson, was fired shortly after.

Metro on 07/25/2014

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