Am. Samoa Customs Employees Petition For Overtime Pay

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Treasurer says department scrutinizing recorded hours

By Joyetter Feagaimaalii-Luamanu

PAGO PAGO, American Samoa (The Samoa News, Jan. 22, 2014) – American Samoa government Treasurer Dr Falema’o Phil Pili says close to $60,000 is needed to pay the Customs Office overtime, which Customs employees claim has not been paid since July last year.

Speaking in the Senate yesterday, Falema’o was accompanied by Human Resources Director Sonny Thompson before a hearing called by the Senate Budget and Appropriation Committee chaired by Senator Laolagi Savali Vaeao, after Senators received copies of the petition signed by close to 30 Customs officers regarding their unpaid overtime and comp time. The petition had also been sent to the Equal Employment Officer, Sam Tinae last week Thursday.

Falema’o told Senators he did not anticipate that the issue about overtime would come before the Fono, given they are working on this internally. He explained the said overtime was incurred from pay periods 15 to 24, which was last year July. "The problem is that these overtimes are not found within the system, and … some of these customs agents are not entitled to overtime."

The Department of Treasury is trying to find a way to pay these hours off — either by actually paying them out or offsetting them for time off. Falema’o said the Customs Agents are rushing the issue, yet they (Treasury) were looking at solving this matter before the upcoming pay period.

"This is a very serious issue and we are very mindful of the Department of Labor laws into overtime," said Pili.

"At the same time the spreadsheet that I have on the Customs officer’s hours — it’s quite impossible for anyone to have worked that many hours, which is why we are reviewing this very, very carefully before it’s input into the system; then we can determine if they are entitled to overtime or comp time," he told Senators.

Senator Mauga Asuega asked if there’s funding to pay for the overtime and noted his concern the government may be slapped with another fine if they don't comply with the federal labor laws. Falema’o said this overtime is fairly new and it’s not budgeted. He said they are looking for revenue to pay off the said overtime. He said if they find out the hours are legitimate, then ASG must pay, but at the same time it has to fall within the Fair Standard Labor Act policy.

Senator Laolagi asked who was in charge of overseeing time cards for the Customs officers, "because you, as Treasurer, are questioning the timecards", if they are even legitimate.

The Treasurer responded there is an Acting Chief of Customs, however back then this Customs office was going through a lot of transitional changes and controversies, including personnel changes.

Falema’o said that at one time, the Customs office was "unstable" however each supervisor for each division is going through the timecards and submitting them for review. "There’s a lot of questionable time cards," said Falema’o.

Senator Afoa Moega L Su’esu’e Lutu asked if there are any other agencies with outstanding overtime. The HR Director responded Customs are the only ones with overtime issues at hand while other agencies with overtime have already been paid. Afoa then asked how soon can the customs officers get paid for their overtime — after all, the work has already been done.

Falema’o said following the analysis they are currently conducting, then they will start paying for overtime. Afoa then pointed out to Falema’o and Thompson, that during his time as AG he wrote to the Treasury to pay the overtime after the USDOL ordered ASG pay $916,093 in back wages to 256 employees, most of them police officers with the Department of Public Safety.

According to USDOL, investigators had found that some employees' overtime hours were paid at a straight-time rate instead of at one and one-half times their regular rates of pay, as required by the federal Fair Labor Standards Act.

Thompson explained these employees have already been paid. He pointed out that under the law those with GS12 and above/WS17 and above are not entitled to overtime.

"There’s a Three-Test for exemption to determine the entitlement for overtime," said Thompson. "The first test eliminates individuals with a "minimum salary level" of $380 per week or above. The second test eliminates those paid on a "salary basis" or individuals with a "fixed salary" and whose compensation cannot be reduced because of variations in the quality or quantity of work performed.

The third test falls in the level of management, whose primary duty is management of the enterprise or directing the work of two or more employees with the authority to hire or fire employees, or whose suggestions and recommendations as to hiring, advancement, promotion or other change of status of other employees are given particular weight. These people are not entitled to overtime, said the HR Director.

In turn there’s the governor’s mandate that there will be no more overtime, rather departments and agencies should hire new employees so there will be no more overtime incurred.

Senator Magalei Logovi’i pointed out to Treasurer Falema’o there was no provision under the law that the revenues collected from the airlines are to hire any new employees rather, the charges or fees collected are to pay for the Customs overtime. "If we don’t pay those with salaries of grade 12 and above then we shouldn't charge the airlines because, we are robbing the airlines," he stated.

"The airlines are paying the charges and fees because of these people who are working overtime and are entitled to the overtime," said Magalei. The Treasurer responded the law is clear and it specifically says we bill the airlines for the clearance fees.

"It did not specify for customs or immigration — there is a fee, another source of revenue belonging to the government," said Falema’o.

Magalei interrupted and asked as to what clearance fee Falema’o was referring to, in response the treasurer explained this is a "service fee to clear the airlines when they land."

Magalei said no, the fee in place is $15 which is for overtime, however the current Treasurer interrupted and said the law clearly states it’s a "clearance fee, not an overtime fee."

Senator Laolagi then intervened and noted they will seek a legal opinion from the Fono’s legal counsel which they will share with ASG.

Local statute on Customs Officers service fees under ASCA 27.1018

Below is the 27.1018 Customs Officers Service Fees:

(a) Charges shall be collected for services of customs officers from the owner, master or agency of a vessel as follows:

(1) attendance of customs officers at any place other than port of entry, per day, $30.00;

(2) attendance of customs officers outside of regular business hours, per hour, $15.00;

(3) granting clearance to commercial vessels per entry and per departure, $6.00;

(4) granting clearance to noncommercial vessels, per entry and per departure, $50.00.

(5) processing Customs Declaration of Entry forms, $5.00 per declaration per vessel. This charge shall not apply to passengers. The revenues from this charge shall be deposited in an account earmarked for and dedicated to the repayment of the government loan approved in 7.1444.5. Upon full repayment of said loan, collection of this tax shall be deposited in the general fund and shall be available for appropriation by the Legislature.

(b) The schedule of charges in paragraph (a) (1) and (a)(2) contemplates that those charges are calculated per man/per hour, or per man/per day, provided that where attendance of customs officers as paragraph (a)(1) is off Tutuila Island, the cost of travel, per diem, or other costs, including overtime, will be charged and collected from whomsoever requires such off-island attendance of customs officers.

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