B-SB Water Division shop

Some Butte-Silver Bow employees who work for the Water Division, whose shop at Montana and Galena streets is seen here, sought back pay for unpaid lunch breaks. 

A state agency has rejected claims by 16 Butte-Silver Bow Water Division employees who say they were forced to take half-hour lunch breaks without pay and wanted four years of back wages totaling hundreds of thousands of taxpayer dollars.

Chad Vanisko, a hearing officer for the Montana Department of Labor and Industry, said in a ruling that the workers could go anywhere or do anything they wanted on their lunch breaks and were not owed pay for that idle time.

When they were called out during a lunch break, he said in a ruling the county received Monday, that time was reflected on their time cards and they were paid for it.

The workers claimed that because they were forced to take a half hour lunch unpaid, they lost that time and their work day was extended a half hour. Because of that, they wanted an hour of back pay for each day they did that. Vanisko called that math "a logical fallacy.”

“They are double-counting their lunch break,” he said in the ruling.

Vanisko also said their claims that former Public Works Director Dave Schultz wrongfully changed the workday policy without any input from employees or their union was not an hour-and-wage issue but one involving unfair labor practices.

Those are considered by a different division in the state Department of Labor and sometimes end up in Montana District Court. Decisions made by administrative judges in the labor department can be appealed to state District Court.

A message was left Tuesday at the law office of Jeffrey Dahood, an attorney in Anaconda who represented the workers, to seek comment and ask if Vanisko’s ruling would be appealed.

Cindy Walker, an attorney who represented the county in fighting the wage claims, said she was pleased with the ruling but could not comment further since it could be appealed to District Court.

Schultz says he implemented the lunch break policy in November 2014 because workers were getting paid for a half-hour lunch period and 15-minute break and were only actually working seven hours and 15 minutes per day while getting paid for eight.

Schultz became Public Works director in January 2014 and left last June for work in the private sector.

But during a hearing before Vanisko last November, he said he changed the policy after noticing that many employees working a 7 a.m. to 3 p.m. shift were quitting work 45 minutes early, saying they had worked through their lunch breaks and 15-minute breaks.

He said there was nothing in writing saying they should be getting paid for a half-hour break or more that they were not actually working, and they should put in an eight-hour day of actual work like others.

There were no restrictions on how they could spend their lunch breaks, Schultz said, and he could not recall any instance when they were asked to work through their breaks.

One longtime employee, Joshua Bolton, said he often worked a 7 a.m. to 3 p.m. shift that included a paid half-hour lunch break until Schultz changed the policy. The change forced him and others to add an unpaid half-hour lunch period to their day and extend the day a half hour, he said.

He multiplied the combined extra hour by 260 work shifts per year over the past four years and said the county owed him $55,931 in back pay. The other 15 claimants wanted similar amounts, which could add up to more than $800,000.

Even on lunch breaks, the workers said, they were using county vehicles and were technically “on call.” Some have county-issued cell phones, but even if using personal ones, they were expected to answer calls from supervisors and respond to any emergencies, they said.

The workers filed a grievance with their union in May 2015 and it pursued the case as far as it could before Butte-Silver Bow stopped listening, Bolton said. So they hired outside lawyers.

But Vanisko, the hearing officer, said the workers “were always compensated for the hours they worked, including overtime pay.” And they all could go home, run errands or do anything else they wished during their lunch breaks.

“The fact that employees may have chosen not to do so does not change the fact that they were free to do so,” Vanisko said in his ruling.

He noted testimony from workers who also said they were on call during lunch because the public water system never shuts down.

“While this may be true, it does not mean that all claimants are on call engaged to be waiting during their lunch break,” Vanisko wrote. “By extension of that logic, claimants should be paid around the clock simply because the BSB (Butte-Silver Bow) Public Works continues to provide water, which is an unreasonable result.”

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Government and politics reporter

Mike Smith is a reporter at the Montana Standard with an emphasis on government and politics.

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