Sean McManus, CSC Docket No. 2024-1445

BackgroundSean McManus, a Conservation Police Officer 21 with the Department of Environmental Protection (DEP), represented by David Beckett, Esq., requests reconsideration of the attached final decision of the Civil Service Commission (Commission), rendered on November 22, 2023, ordering that the DEP recalculate McManus’ rate of cash overtime compensation in accordance with the decision of the Superior Court of New Jersey, Appellate Division, in In the Matter of Sean McManus, Docket No. A-0845-20 (App. Div. August 1, 2023).

By way of background, the Appellate Division vacated and remanded the decision of the Commission, which denied McManus’ reconsideration request concerning his grievance on the rate of his cash overtime compensation for emergency- related work. At the time of his grievance, McManus was serving as a Conservation Officer 3, a NE title, where, instead of having a workweek fixed at 35 hours, McManus was required to work at least 35 hours per week with occasional requirements for a longer workweek. The DEP was granted funding for an overtime project where it paid employees for the hours worked between 35 and 40 hours per week based at the hourly proration of their base salary, while overtime after 40 hours was compensated at one- and-one-half times that rate. McManus filed a grievance stating that the State was now an employer subject to the recently modified New Jersey Wage and Hour Law (Wage and Hour Law) and the DEP’s method of calculating his overtime conflicted with the statute. The DEP denied his grievance and McManus appealed to the Commission. The Commission found that the Wage and Hour Law only covered the State as an “employer” for the purpose of ensuring payment of the minimum wage, which McManus’ salary exceeded. It noted that McManus served in a NE title which had the same class code as comparable titles with a fixed 35-hour workweek, but the salary range was one higher to compensate for the occasional longer workweek. Further, it indicated that NE titles are only eligible for cash overtime compensation for time worked in excess of 40 hours per week. Therefore, the Commission denied McManus’ appeal, as it found that the DEP properly calculated his compensation in compliance with Civil Service regulations. See In the Matter of Sean McManus (CSC, decided April 15, 2020). It also denied McManus’ request for reconsideration. See In the Matter of Sean McManus (CSC, decided November 4, 2020). Thereafter, McManus appealed to the Appellate Division and the Commission moved for remand, which was granted by order dated December 7, 2021, to clarify its prior decision due to factual issues that arose. Upon remand, the Commission reaffirmed its prior decision. See In the Matter of Sean McManus (CSC, decided November 4, 2020). The Commission reiterated that the NE position is at a higher salary range than comparable 35-hour per week titles to account for the occasional requirement to work more than 35 hours per week up to 40 hours per week, and, therefore, overtime was not required to be paid during this time. McManus pursued a second appeal to the Appellate Division. Upon its review, the court found that under the Wage and Hour Law, any discretionary compensation received by McManus for hours worked between 35 and 40 was to be included when calculating McManus’ “regular hourly wage.” Thus, any discretionary compensation received by McManus must be factored in when calculating his overtime pay. Therefore, the Appellate Division vacated the Commission’s decision and remanded the matter to the Commission for a recalculation of McManus’ overtime based on the Wage and Hour Law. In accordance with the Appellate Division’s opinion, the Commission ordered that its prior decision in the matter be vacated and that McManus’ cash overtime compensation be recalculated in accordance with the Appellate Division’s opinion and the statutory provisions set forth in N.J.S.A. 34:11- 56a1(e) and N.J.S.A. 34:11-56a4(b)(1).

1 At the time of McManus’ grievance, he was serving as a Conservation Officer 3. He was then promoted to Conversation Officer 2 effective December 18, 2021. On January 1, 2022, the title’s name changed to Conservation Police Officer 2.

Appellant's argumentIn his request, McManus maintains that the Commission committed a clear material error because it failed to calculate his overtime and “follow the requirement of the decision” of the Appellate Division. He contends that the Commission “essentially outsources its obligations” to the DEP “without providing any guidance or review of the regulations in question.” Further, he asserts that the Commission failed to ensure that the overtime regulations as applied to him and all employees with the NE classification comply with requirements of the Wage and Hour Law. Therefore, McManus submits that the Commission’s decision is “inconsistent with the Appellate Division decision.” He sets forth the “essential parts” of the Appellate Division decision which contains the instructions for calculating overtime and emphasizes that the Commission ignored it. Therefore, he requests that the Commission “correct this clear material error” and perform the calculations in accordance with the Appellate Division opinion. He states that the Commission “cannot expect the [DEP] to do its job or perform the calculations it is required to perform, especially without guidance.” “Once done, the Commission should issue an advisory to all agencies and jurisdictions to direct them as to how to follow the obligations of Wage and Hour laws in the interpretation of its overtime regulations.”

CONCLUSION

RuleN.J.A.C. 4A:2-1.6(b) sets forth the standards by which the Commission may reconsider a prior decision. This rule provides that a party must show that a clear material error has occurred or present new evidence or additional information not presented at the original proceeding which would change the outcome of the case and the reasons that such evidence was not presented at the original proceeding. A review of the record in the instant matter reveals that reconsideration is justified in part.

AnalysisIn its remand decision, the Commission ordered that its prior decision be vacated and directed that the DEP recalculate McManus’ cash overtime compensation for emergency-related work between 35 and 40 hours per week during the period in question. The Commission notes that it prior order requires clarification and accepts McManus’ request to provide further guidance as to the proper calculation of his overtime.

McManus is entitled to have his cash overtime compensation for emergency- related work over 40 hours per week recalculated during the period in question. The Commission orders that this rate be calculated by DEP consistent with the statutory provisions set forth in N.J.S.A. 34:11-56a1(e) and N.J.S.A. 34:11-56a4(b)(1). Accordingly, McManus’ overtime compensation for work he performed over 40 hours during the period in question must constitute “1 1/2 times” his “regular hourly wage.” His regular hourly wage, as defined by the Wage and Hour Law, is “the amount that [he] is regularly paid for each hour of work as determined by dividing the total hours of work during the week into [his] total earnings for the week.” N.J.S.A. 34:11-56a1(e). Thus, because any discretionary compensation DEP provided to McManus for working hours 36 through 40 in a given week constitutes “total earnings for the week,” N.J.S.A. 34:11-56a1(g), that compensation must be included in determining his regular hourly wage. DEP is directed to compensate McManus 1 1/2 times his properly calculated regular hourly wage for any hours over 40 in a given week worked by McManus.

As to McManus’ request that the Commission calculate his overtime, the Commission emphasizes that it is the responsibility of State appointing authorities to calculate an employee’s overtime compensation at any given time. Indeed, in this case, the DEP had made the initial calculation. Further, the discretionary compensation that must be part of the calculation of McManus’ overtime was made by the DEP, and therefore, it has the information to recalculate McManus’ compensation accurately. The Commission merely serves as a forum to review the validity of an appointing authority’s calculation of overtime. Hence, if McManus disagrees with the amount of his compensation upon recalculation by DEP, he would be entitled to appeal to the Commission.

Finally, the Commission notes that its decision and the Appellate Division’s opinion are public decisions, which are posted on their respective websites, and as such, are available to all agencies and jurisdictions to guide them. Nonetheless, the Commission directs the Division of Agency Services to provide all State appointing authorities with a copy of this decision and the Appellate Division’s opinion.

ORDER

Therefore, it is ordered that this request for reconsideration be granted in part and denied in part.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.