By Patrick Marley
Milwaukee Journal Sentinel
MADISON, Wisc. — A state agency that decides wage disputes has reversed itself and ruled a Redgranite Correctional Institution officer doesn’t have to be paid until he arrives at his job post — a setback for others suing the Department of Corrections who contend they are being shorted pay on a daily basis.
In dispute in the case is $85 over eight weeks that Officer Paul Mertz says he is owed because the department isn’t paying him at the start of his shift, even after he has checked in with a supervisor. But ultimately — once tallied for thousands of officers over nearly two years — millions of dollars are at stake for officers and the state.
Mertz said he is strongly considering taking his case to Waushara County Circuit Court, and he’s shown in the past he is willing to mount legal battles.
In 2005, the Wisconsin Court of Appeals ruled in his favor and threw out a $181 speeding ticket he received because the speed limit sign was smaller than required under state rules. Taking the case to the appeals court ended up costing him $335 — almost twice as much as the ticket he beat.
“I don’t care about the money” in the wage dispute, Mertz said. “For the state to not pay its employees for the time they work, that’s not good public policy and it’s illegal.”
The fight over pay began in 2012, when the Department of Corrections set a policy that said officers’ shifts wouldn’t begin until they arrived at their posts, even though they have to check in at roll call before then. Mertz filed a complaint with the state Labor Standards Bureau arguing the policy was cheating him out of pay.
Jeffrey Glick, an equal rights officer for the bureau, ruled in July that the department had denied him pay under the federal Fair Labor Standards Act and ordered that it provide him back pay equal to 35 minutes of pay per week. Glick also ordered the department to change how it pays all Redgranite officers.
The Department of Corrections appealed, and Glick’s boss — Jim Chiolino, director of the bureau — reversed Glick in a Dec. 16 ruling.
Separately, officers at 10 institutions sued the state in Dane County Circuit Court in August seeking back pay. With the assistance of the Wisconsin Association for Correctional Law Enforcement union, the plaintiffs are attempting to designate the case as a class-action lawsuit that would benefit 3,000 officers.
Timothy Scheffler, the Madison attorney for the officers, said he did not believe the administrative ruling against Mertz would affect the broader case. He called the findings in Mertz’s case “a little bit ludicrous.”
Chiolino was out of the office this week and a spokesman for the Labor Standards Bureau declined to comment. The Department of Corrections also did not provide comment.
Officers turning to courts
Officers have been frustrated by the new pay policy that came a year after Gov. Scott Walker and Republicans in the Legislature ended the ability of correctional officers and most other public employees to collectively bargain over most issues. Many of them view turning to the courts as one of the few ways they have to resolve workplace disputes.
The original ruling for Mertz found that he has to be paid as soon as he checks in with a supervisor and goes through roll call. That meant he is to be paid for a period of about five minutes at the beginning of each shift, as he readies himself for his duties and walks from the muster room to his job post, the original ruling said.
But the December ruling found that visiting the muster room is an informal process where supervisors make sure officers are in uniform and fit for duty. Officers should not be paid for that preliminary activity or the time immediately afterward, Chiolino wrote.
“Since the time spent in this ‘check-in’ procedure is not work time, the travel time from this point to the assigned post is not compensable,” he wrote. “The workday has not begun. ...Travel time to the duty site is not work time unless the workday has already commenced. There is no support for the notion that the workday starts as the employee walks to his post.”
Mertz and others dispute the findings Chiolino based his opinion on. Chiolino concluded supervisors do not give officers instructions when they check in at the muster room — but Mertz and others say that is not true, with officers sometimes receiving work assignments or being given equipment there.
Chiolino also wrote that officers walking to their posts are not required to respond to emergencies, saying that helps show they do not need to be paid at that time. But Mertz and his attorney said officers are expected to help with emergencies whenever they are inside a prison.
The case deals with a period of about eight weeks beginning in March 2012, when the new pay policy was put in place. But if Mertz is victorious, he could lay claim to additional sums for all the weeks since then.
Mertz can ask for a review of the Labor Standards Bureau’s latest ruling and could take the matter to Waushara County Circuit Court.
“I would like to do that because I think it’s the right thing to do,” Mertz said. “I’m pretty sure I can win.”
If he loses, he could have to pay some of the state’s costs, and Mertz said he was reviewing what his exposure could be before deciding whether to sue.
Mertz’s attorney, Michael Kuborn of Oshkosh, said he was confident Mertz could win in court.
“DOC keeps making it easier for us,” Kuborn said. “They keep giving him job directions while he’s in a non-pay status.”
A history of legal action
Mertz, 52, has been willing to take matters to the court in the past.
In 2004, Mertz received a ticket in Green Lake County for going 54 mph in a 35 mph zone. Mertz said he did not see the sign and later discovered it was 18 inches by 24 inches — well under a state requirement that speed signs be 24 inches by 30 inches.
He lost in circuit court but won before the Court of Appeals in 2005.
“There was no way I was wrong, and I wasn’t going to let them sweep this all under the rug,” Mertz said this week.
More recently, Mertz sued the Department of Corrections under the state’s open records law as he sought to find out whether his supervisor nominated him for a merit pay raise. In a settlement reached in August, the department agreed to pay him $402.
Disputes over when the clock should start ticking in the workplace are also occurring in the private sector. Last week a Rock County judge ordered Hormel Foods to give workers at its Beloit facility $195,000 in back pay for time they spent getting into uniform, washing their hands and walking to their work stations, the Wisconsin Ag Connection reported Tuesday.