Every year around this time, San Franciscans rail against what passes for frigid weather here. This is done in spite of the fact that we bemoaned the weather at this time last year and that the weather doesn't seem to care.
In another annual tradition, a smattering of newspaper stories will rail against the city's escalating overtime costs, and identify individual workers pocketing vast sums of cash while clocking hours befitting an Edwardian factory hand. This year, a Muni electrical mechanic named Khoa Trinh made an uneasy cameo in the Chronicle due to his $164,000 in overtime payments. Left unmentioned, however, was that Trinh banked $140,000 in overtime in the prior year. So this is no fluke. And it's chilly out — again!
It likely comes as cold comfort to learn that the city has had an overtime ordinance on the books since 1988. Mayor Art Agnos signed legislation that required workers whose overtime hours exceeded 16 percent of their regular hours to receive permission from their departmental "appointing officer." But by the time the Board of Supervisors revisited maximum overtime rules 20 years later, the '88 law was totally forgotten. City officials looking into enacting a law on this matter tell SF Weekly they were shocked to find out one already existed.
San Franciscans unaware of or upset by having to, say, pay for Sunday parking meters can't opt out of the law. But for city government, ignorance of or disdain for the overtime law allowed them to do just that. "We had a law on the books with no transparency and no enforcement," says Micki Callahan, the head of the Department of Human Relations. Between 2003 and 2008 the city's overtime costs jumped from $94 million to $168 million — maximum overtime rules be damned.
In '08, the city moved to set workers' maximum overtime hours at the far more generous 30 percent — but require exemptions to be granted not by myriad "appointing officers" but the centralized Department of Human Resources. In 2011, the ceiling was lowered to 25 percent. It'd be nice to say that these rules are working. But that would require a creative definition of "working."
During a board meeting a year ago, Callahan remarked upon the city's progress in corralling overtime. OT hours, she noted, had been cut in half — among non-Muni and non-public safety workers. That's a hell of a caveat, considering Muni and public safety workers account for about 90 percent of the city's yearly overtime.
The city's overtime payout is down from its 2008-09 peak of $168 million, but jumped from $130 million in 2009-10 to $144 million in 2010-11 to $154 million in the most recent year. Both Muni and the fire department have never spent more on overtime.
There are a number of reasons for this, but the first is that the city's overtime ordinance isn't meant to reduce overtime. "This doesn't necessarily change the number of overtime hours being worked. It just smooths them around," says city Controller Ben Rosenfield. The point of the law is to more equitably distribute extra hours, reducing the possibility of kickback schemes, exhausted employees driving off the side of the road, or the embarrassment of reading about overtime hogs in the paper. The larger notion of whether it's feasible to run the city on overtime isn't touched. "Is this appropriate? That is the big management question," continues Rosenfield. Good management, however, is tricky to legislate.
It's especially tricky to legislate overtime when Muni is largely left out of the equation, and an overtime law unfocused on Muni is about as effective as an emissions protocol ignoring the United States. Every city department must receive permission from Human Resources when it wishes to authorize overtime for employees exceeding 25 percent of regular hours — except Muni. As a semi-autonomous agency, it calls its own shots, every year exempting broad categories of workers from the city's overtime restrictions. This year, 510 of the 863 city workers who exceeded the city's overtime threshold were Muni employees.
Muni's track record is not heartening. In 2010-11, electrical mechanics like Trinh were not on the agency's list of approved overtime exemptions — but Trinh still racked up $140,000 on top of his regular salary. This fit in with larger trends. As SF Weekly noted in a June cover story, overtime payments among electrical mechanics doubled between 2007 and '11, with one-fifth of workers earning half the cream. Longtime electrical mechanic Armando Guzman claimed this was a result of workers and managers colluding to create "artificial overtime. We were told to delay the work in a regular shift and leave it for overtime."
No one, it appears, was punished for this. In fact, electrical mechanics in 2011-12 were officially blessed by Muni to be exempted from the city's overtime rules and earn as much as they could.
There's a funny detail about the current Muni list of 19 categories of workers exempted from the city's overtime laws: The city controller didn't accept it. His office claimed Muni's paperwork wasn't up to snuff, never using the term "exemption," for one thing, and never referencing the relevant city codes. Muni officials disagreed and a back-and-forth ensued — but, in the end, the controller's annual overtime report listed every last Muni employee who exceeded the overtime limit as being non-exempted. On paper, it's as if the transit agency has gone rogue.
In reality, however, there are no repercussions awaiting Muni, just as no repercussions befell its overtime-fueled mechanics. In no versions of the city's overtime law has there been a provision establishing any penalties for failing to comply. An overtime law that isn't meant to reduce overtime also has no recourse to punish those who violate it.
Certainly individual workers won't feel the pinch. Per the Fair Labor Standards Act, even unauthorized work must be compensated. Non-Muni managers who dole out overtime too narrowly can look forward to unpleasant phone calls from the Department of Human Resources. But that's about as bad as it gets. Departments unresponsive to normal human emotions (such as shame) and with no compunctions about allowing representatives to be browbeaten before a Board of Supervisors committee can follow the rules as they see fit. "There don't appear to be any repercussions to hold us to our budget realities," says Supervisor David Chiu of his own law (he sponsored the 2011 version).
The checks will keep coming as regularly as cold weather and complaints. While the overtime law may not be working, there's always someone working the overtime law.