In Warwick, firefighters can earn overtime without working a full week
WARWICK - Mayor Frank J. Picozzi has directed his administration to review a longtime practice that allows city firefighters to earn hundreds of thousands of dollars every year in overtime for hours they don’t actually work - using sick and vacation time to trigger being paid time and a half.
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Picozzi’s order came in response to a three-month investigation of city records obtained by The Hummel Report and a detailed computer analysis of the information by Ken Block, founder of the nonprofit WatchdogRI. It included an examination of every firefighter shift over the past 15 months.
“My immediate reaction is: ‘Wow,’” Picozzi said Monday, responding to the investigation. “I come from the private world and it just doesn’t work like that. I want to see if there’s a pattern of abuse doing that. They may have some reasons for doing that, I’m not sure.”
The most recent findings follow a Hummel Report investigation, published last month in The Providence Sunday Journal, that found the fire department was nearly $1 million in the red and that overtime has quadrupled over the past four years, to $5.7 million in 2020.
The mayor asked his solicitor, Michael Ursillo, to review the legalities of the practice and his Fire Chief, Peter K. McMichael, to scrutinize the use of sick time by the 176 members of the department over the past six months.
“What we found here in Warwick was that (in some cases) no regular hours were worked, and extraordinary overtime was worked,” said Block. “And that’s just not fair to the taxpayers. It’s abusive.”
Block’s company, Simpatico Software Systems, has expertise in taking raw data obtained through public records requests and converting it into usable information. He has worked extensively with governments in other states. In this case, the city - responding to a public records request - provided nearly 1,000 pages that detailed every shift firefighters worked in 2020. Block wrote a software program to sort out and organize the data.
“There’s nothing wrong with taking a vacation, but if you take your vacation time and you don’t work, then you work a whole bunch of hours in between your vacation time, that’s problematic,” Block said. “In the private sector world you can’t do that.”
Here’s how it works: Warwick firefighters are scheduled for an average 42-hour week, working in 24-hour shifts. They generally work 24 hours, then get 48 hours off, work for another 24 hours, then have 96 hours off.
In Warwick, a firefighter could use sick time for his or her first 24-hour shift, vacation for another 24-hour scheduled shift, then work two or three more, unscheduled, 24-hour shifts. Because the sick and vacation time put the firefighter at 48 hours, all of those unscheduled shifts would be paid time and half.
For example, the department’s records show that firefighter Nicholas Pella took sick time covering a 24-hour period on Nov. 17 and 18, then another 24 hours from Nov. 21 to Nov. 22. He then worked two consecutive 24-hour shifts that were both paid as overtime. That series of shifts cost the taxpayers an extra $824.80 because the sick time was used to trigger time and a half.
The month before, rescue driver Michael Colantonio took sick time for 24 hours spanning Oct. 4 and 5; he then worked a 14-hour callback shift that was paid as overtime; then he took 24 hours of vacation time on Oct. 7 and 8. He then worked 62 hours of overtime over the next four days. Colantonio’s series of shifts cost the taxpayers an extra $682.18.
I’m hoping there’s not (abuse),” Picozzi said. “I’m hoping (the review) proves that everything is going legitimately. If people are calling in and using sick time and vacation days to force getting overtime during their regular working time, I don’t think that’s right. It’s not fair to the taxpayer.”
Warwick City Council President Stephen P. McAllister said he was unaware that firefighters could use sick and vacation time to trigger overtime, adding that he is awaiting Picozzi’s review before deciding what action, if any, to take.
While the practice is not unique to Warwick - Providence has a variation of it - what makes it different from many other departments is that the arrangement is not included in the city’s contract with the Local 2748 of The International Association of Firefighters. McMichael and the union’s president, Michael Carreiro, called it a “past practice” that has been done as long as anyone can remember.
Carreiro said he believes it would cost the city more to eliminate the practice. “I don’t think you’d get anyone to come in (and work overtime voluntarily),” he told The Hummel Report. “I think that would ultimately be costly, you’d have to order someone in to come in and pay time and a half to fill that shift.”
Can the city change it? Carreiro said if Warwick moved to eliminate using sick and vacation as a trigger to overtime, the union would file a grievance and let an arbitrator decide.
But state law would not be on the union’s side, according to veteran labor attorney Vincent F. Ragosta Jr., because the practice has not been formalized in the collective bargaining agreement. Ragosta helped negotiate the Warwick contract signed by the city and the union in January 2020.
“The general rule is it’s time actually worked, for purposes of calculating overtime eligibility,” said Ragosta, pointing to the federal Fair Labor Standards Act.
And, he added, a law first passed by the General Assembly in 2000, and amended in 2007, speaks directly to the situation in Warwick. “A past practice may be discontinued by submitting a 30-day notice to the union of the intended discontinuation of the practice,” Ragosta said. “If Warwick discovers this is being done, and it’s excessive or outrageous, but this has been the practice, then the city need only send a written notice of discontinuation of the past practice.
“To me this sounds like a practice that’s just evolved,” Ragosta added. “There’s not much legally (the union) can do.”
Another section of state law, passed in 1983, prohibits state workers from doing what the firefighters are doing in Warwick: using sick leave to calculate overtime hours.
The law says if someone uses sick time in a given workweek, “he or she shall be permitted to work overtime only after he or she has worked his or her full thirty-five (35) or forty (40) hours, whichever is appropriated for the job classification.” It adds that vacation days, personal days, and leave for death in an employee's immediate family can be used when calculating overtime, as Warwick does. Ragosta said it’s clear the nearly four-decades-old law was passed to try and curb sick time abuse at the state level.
Block estimates that allowing sick and vacation days to trigger overtime is costing Warwick $500,000 a year. He added that the city needs to take a deeper dive into how and when sick time is being used. His analysis - based on the city’s own records - shows that of the 1,239 sick shifts taken last year, 212 (17.1%) came on Saturday and 197 (15.9%) on Sunday - the highest days of the week. By comparison: 12.4% of the sick days came on Monday and 11.9% on Tuesday.
“It is stunning how much healthier Warwick firefighters are on Mondays, Tuesdays and Wednesdays as compared to the other days of the week,” Block said.
He added that while the Warwick figures are sobering, use of sick and vacation time when calculating overtime is a statewide issue - and something that every city or town leader should review to see if it’s in their contract; or like Warwick, an unofficial past practice. “It’s happening in Warwick,” Block said. “Is it happening in your community?”
He also discovered that overtime is calculated on a 40-hour workweek, rather than a 42-hour week, meaning the rate of pay per hour is higher than it should be for overtime hours. McMichael and Carreiro confirmed the practice. Block said that basing overtime on a 40-hour week is costing the city an additional $300,000 a year. But a change to that would have to be negotiated as its part of the current union contract.
“Mayor Picozzi has been on social media trying to find $60,000 to open a community pool,” Block said. “What I would say to Mayor Picozzi - and frankly to the firefighters and taxpayers of Warwick: Is the $500,000 we’re paying in extra overtime costs to employees that did not work their regular hours better spent on unnecessary overtime, or should it be applied to providing services that the community desperately needs, like their pool?”
Last month’s investigation found some firefighters working extraordinary overtime. One firefighter, rescue driver Todd Berthiaume, earned $316,000 last year, including $219,000 in overtime. That translates to an average of five 24-hour shifts per week. In an earlier interview, McMichael said the union and the department agreed to cap at 72 the number of hours anyone could work straight before having to take a 24-hour shift off.
But Block - using additional public records obtained by The Hummel Report - found seven instances over the past 15 months where firefighters exceeded the cap, in one case by nearly double. Berthiaume worked 120 straight hours over six days in May 2020. He also worked 86 hours straight once in March and once in April.
The longest shift goes to Robert Danella, a rescue driver, who logged 139 straight hours Nov. 18 to 25, including an eight-hour detail at the beginning and another seven-hour detail midway through.
McMichael said those long shifts resulted from the department being down 20 firefighters, having to meet minimum manning requirements on each shift and his running out of people to order back to work. The good news: the city has received applications from more than 250 potential recruits to begin a training academy in the fall.
“The whole situation is a situation I don’t want to be in. It’s pushing the envelope,” the chief said. “It’s something we’re going to look at now that you’ve brought it to light.”
The Hummel Report is a 501(c)(3) nonprofit organization that relies, in part, on donations. For more information, go to HummelReport.org. Reach Jim at Jim@HummelReport.org.