Audit Report on Controls over Overtime Payments at the New York City Law Department

Audit Report In Brief

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We performed an audit on the New York City Law Department’s (Department) compliance with guidelines governing the authorization and payment of overtime. Employees who are covered under the collective bargaining agreement (i.e., Citywide Agreement) between the City and DC 37 AFSCME and who hold certain civil service titles are eligible to earn overtime payments. In accordance with the Citywide Agreement and Fair Labor Standards Act, all overtime beyond 40 hours actually worked by an employee is paid at a premium of time-and-a-half (excluding those designated as managers).

During Fiscal Year 2009, the Department paid a total of $1,153,357 in overtime to 273 of 1,547 employees. The base salaries of all employees was approximately $94 million.

Audit Findings and Conclusions

The Department generally complied with the rules governing the authorization of overtime except for those addressing the overtime cap. As part of the Department’s compliance, we found that Department officials performed multiple steps and reviews before overtime for eligible employees was authorized. The Department has satisfactory internal controls for separating duties and monitoring an employee’s work hours. However, we found that the Department did not comply with the Citywide Agreement’s overtime cap, which precludes certain employees from obtaining payments for overtime. As a result of not complying with the cap and not obtaining required waivers, the Department paid 21 employees for inappropriate overtime totaling $82,954 in calendar year 2009. The Department’s practice of paying overtime to employees whose salaries exceed the overtime threshold was not limited to 2009. We found that 25 employees whose annual salaries exceeded the calendar year 2008 overtime cap of $71,230 earned a total of $103,851 in excess overtime. Overall, the excess overtime paid in calendar years 2008 and 2009 totaled $186,805. Of this amount, $172,053 was earned by 16 employees in calendar years 2008 and 2009.

We note that all payments for ineligible overtime are a factor in calculating the pensions of employees who are members of the New York City Employees’ Retirement System. The retirement system’s formula for calculating pension payments to employees is based in part on an employee’s highest three consecutive years of earnings, including overtime payments.
¹ Consequently, inappropriate overtime payments may inflate the value of an employee’s pension, which are payable for the remainder of a retired employee’s lifetime and could be passed on to a beneficiary.

Audit Recommendation

• This report makes one recommendation, that the Department should comply with regulations governing employees whose salaries exceed the overtime cap.

Department Response

Department officials agreed with our recommendation and stated that they have ‘received overtime waiver approvals from OLR for the appropriate staff for 2010 and 2011 and will do so going forward.’ Regarding our concern about inflated pensions, the Department stated that “none of the affected employees are expected to retire within the next few years.’ We note, however, that the retirement system’s formula for calculating pension payments is based in part on an employee’s highest three consecutive years of earnings, including overtime payments, irrespective of an employee’s retirement date.