DeMons v. the United States

BASIC INFORMATION

1. Examples of work situations covered by this case as provided by Class Counsel.

   Plaintiffs claim that the law provides that a federal employee who uses any form of “leave with pay” such as annual leave, sick leave, jury duty or witness leave, and/or military leave, must be paid the same amount of money as the employee would have earned if he or she had remained at work on his or her regularly scheduled shift instead of using paid leave

   Therefore, if you used annual leave or sick leave during a normal two-week pay period, Plaintiffs claim that the law requires that your pay during that pay period would have to be equal to the pay you would have received if you had remained at work on your regularly scheduled shifts for the entire pay period instead of taking paid leave (depending as to whether you are a hybrid employee or whether you are a specialized health care employee). Plaintiffs claim that this pay should include basic pay as well as any night and/or Saturday pay (depending on your occupation) that you would have earned during that pay period had you not taken authorized paid leave (less taxes and withholding).

   If your pay during the period from July 1, 2012 to February 28, 2016 did not include the appropriate premium pay during the pay periods when you used “paid leave,” you may be owed back pay and interest.

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2. Why did I get the Notice?

   If you are or were employed at the VHA from July 1, 2012 to February 28, 2016 as one of the occupations in either DeMons Subclass One or DeMons Subclass Two, listed immediately below, and you used authorized paid leave on shifts which included night and/or Saturday hours, then you may have been able to participate in this class action case. If an eligible VHA employee is deceased, his or her spouse, parent or child would have been able to participate in the case by filing a timely claim. Therefore, you would have had legal rights and options available to you, and would have had the right to be informed with a notice.

   DeMONS SUBCLASS ONE: All General Schedule employees, as defined by 5 U.S.C. § 2105, who were employed ONLY between July 1, 2012 and February 28, 2016 by the Department of Veterans Affairs (“VA”) in one of the following occupations:

   DeMONS SUBCLASS ONE

   Certified or Registered Respiratory Therapist Licensed Physical Therapist Licensed Practical Nurse (“LPN”) Licensed Vocational Nurse (“LVN”) Pharmacist Occupational Therapist Graduate Nurse or Nurse Pending Graduation by the Veterans Health Administration Audiologist Audiologist-Speech Pathologist Speech Pathologist Biomedical Engineer Corrective Therapist or Kinesiotherapist Dental Assistant Dental Hygienist Dietitian Marriage and/or Family Therapist Licensed Professional Mental Health Counselor

   Medical Instrument Technician Medical Records Technician Medical Support Assistant Medical Technologist Nuclear Medicine Technologist Occupational Therapy Assistant Orthotist or Orthotist-Prosthetist Pharmacy Aid or Pharmacy Technician Physical Therapy Assistant Prosthetic Representative Psychologist Diagnostic Radiologic Technician or Technologist Therapeutic Radiologic Technician or Technologist Social Worker Blind Rehabilitation Specialist or Blind Rehabilitation Outpatient Specialist Nursing Assistant Therapeutic Medical Physicist or Medical Physicist

   1. who regularly and customarily worked on a tour of duty during any part of which was within the period beginning 6:00 p.m. and ending 6:00 a.m. and/or on a tour of duty during any part of which was within the period beginning 12:00 a.m. Friday and ending 12:00 a.m. Saturday (not including any Sunday hours); and
   2. who received night differential pay of 10% and/or Saturday premium pay of 25% or more, pursuant to 38 U.S.C. §§ 7454(b)(1), (b)(2), for each such hour of service between 6:00 p.m. and 6:00 a.m. and/or for each such hour of service between 12:00 a.m. Friday and 12:00 a.m. Saturday (not including any Sunday hours), and
   3. who received pay during periods of authorized paid leave, pursuant to 5 U.S.C. §§ 6301-6391, for any part of a tour of duty between 12:00 a.m. Friday and 12:00 a.m. Saturday (not including any Sunday hours) that was reduced in an amount equal to the Saturday premium pay to which such employees would have been entitled if they performed regular and customary work on Saturdays instead of using authorized paid leave; and/or
   4. hybrid employees who were designated to receive premium pay on the same basis as nurses who received pay during periods of authorized paid leave, pursuant to 5 U.S.C. §§ 6301-6391, for any part of such tours of duty between 6:00 p.m. and ending 6:00 a.m. that was reduced in an amount equal to the night differential pay that employees would have been entitled if they performed their regular and customary work at night instead of using authorized paid leave.
   
   

   DeMONS SUBCLASS TWO: All General Schedule employees, as defined by 5 U.S.C. § 2105, who were employed ONLY between July 1, 2012 and February 28, 2016 by the VA in one of the following occupations:

   DeMONS SUBCLASS TWO

   Series 0060, Chaplain Series 0101, Social Science Series 0102, Social Science Aid and Technician Series 0181, Psychology Aid and Technician Series 0184, Sociology Series 0186, Social Services Aid and Assistant Series 0187, Social Services Series 0188, Recreation Specialist Series 0189, Recreation Aid and Assistant Series 0401, General Biological Science Series 0403, Microbiology Series 0404, Biological Science Technician Series 0405, Pharmacology Series 0413, Physiology Series 0415, Toxicology Series 0601, General Health Science Series 0625, Autopsy Assistant Series 0636, Rehabilitation Therapy Assistant (Except for Occupational Therapy Assistant and Physical Therapy Assistant) Series 0637, Manual Arts Therapist Series 0638, Recreation/Creative Arts Therapist Series 0639, Education Therapist Series 0640, Health Aid and Technician (Except for Certified Respiratory Therapist) Series 0645, Medical Technician

   Series 0646, Pathology Technician Series 0651, Respiratory Therapist Series 0664, Restoration Technician Series 0670, Health System Administration Series 0671, Health System Specialist Series 0673, Hospital Housekeeping Management Series 0683, Dental Laboratory Aid and Technician Series 0690, Industrial Hygienist Series 0698, Environmental Health Aid and Technician Series 0699, Student Nurse Technician (Title code 63 only) Series 0701, Veterinary Medical Science Series 0704, Animal Health Technician Series 1020, Medical Illustrator Series 1060, Photographer (Medical) Series 1301, General Physical Science Series 1306, Health Physics Series 1310, Physics Series 1311, Physical Science Technician Series 1320, Chemistry Series 1601, Biomedical Equipment Support Specialist Series 1725, Public Health Educator Series 1910, Quality Assurance

   1. who regularly and customarily worked on a tour of duty during any part of which was within the period beginning 12:00 a.m. Friday and ending 12:00 a.m. Saturday; and
   2. who received premium pay of 25% or more, pursuant to 38 U.S.C. § 7454(b)(3), for each such hour of service between 12:00 a.m. Friday and 12:00 a.m. Saturday; and
   3. who received pay during periods of authorized paid leave, pursuant to 5 U.S.C. §§ 6301-6391, for any part of a tour of duty from 12:00 a.m. Friday to 12:00 a.m. Saturday that was reduced in an amount equal to the Saturday premium pay, pursuant to 38 U.S.C. § 7454(b)(3), to which such employees would have been entitled if they performed their regular and customary work on Saturdays instead of using authorized paid leave.
   
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3. What is this case about?

   This lawsuit is about whether “premium pay” should have been paid to hybrid employees or specialized health care employees of the Veterans Health Administration who used annual leave, sick leave, or other forms of authorized paid leave instead of performing regularly scheduled work on Saturdays and/or nights (depending on your occupation) as described in the Notice.

   The lawsuit is known as DeMons et al. v. United States, No. 13-779C, and it has been filed in the United States Court of Federal Claims in Washington, D.C.

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THE CLAIMS IN THE LAWSUIT

4. What are the Plaintiffs asking for?

   The Plaintiffs asked for money damages as back pay plus interest for the amount of premium pay that they claimed was not paid to all eligible hybrid employees or specialized health care employees who file a timely Opt-In Claim Form as Class Members.

   You might have been eligible for back pay with interest, depending on your job classification, pay grade, and how many hours of annual leave, sick leave, military leave, or court or witness leave you used during the period from July 1, 2012 to February 28, 2016 instead of working your regular night and/or Saturday shift (depending on your occupation).

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5. Is there any money available now?

   Payments were issued to all of the night and/or Saturday premium pay claims by eligible members of the certified class from July 1, 2012 to February 28, 2016. If you submitted a timely Opt-In Claim Form but did not receive a payment, your claim was deemed ineligible by the Settlement Administrator.

   In a typical class action settlement, each eligible member of the classified class who files a timely claim receives a proportionate distribution of the Settlement Fund based upon the differential pay that each eligible claimant should have received for authorized paid leave used plus interest and less the costs and expenses of administration and attorney fees approved by the Court.

   The Claims Administrator pays all attorney’s fees and expenses from the Settlement Fund, as approved by the Court. Individuals will not be billed for any fees and expenses and they will not have to pay any of these fees and expenses personally as it is anticipated that all administrative fees and attorney fees will be paid directly from the Settlement Fund. Defendant does not admit any wrongdoing or liability on its part.

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WHO IS IN THE CLASS

6. Am I part of this Class Action?

   In order to have participated in this case, you were required to submit an Opt-In Claim Form either online or postmarked no later September 16, 2016. The claim filing deadline has passed and no claims received after the deadline can be honored. By not submitting an Opt-In Claim Form you were excluded from the Class, and you will be forever excluded from receiving any supplemental payment from this lawsuit.

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7. Who should I contact if I am not sure if I can be part of the Class Action?

   If you are still not sure whether you are included in this Class Action, you can contact the Claims Administrator in this case by calling toll-free at 1-877-810-7928 or by mail at the address listed below (see FAQ 13).

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8. What happens if I submit a Claim Form?

   The deadline to file a claim was extended to September 16, 2016 and has now passed. Any claims filed after September 16th are ineligible.

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9. How do I submit a Claim by mail?

   In order to have participated in this case, you were required to submit an Opt-In Claim Form postmarked no later September 16, 2016. The claim filing deadline has passed. Late claims are ineligible to participate in the Settlement.

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10. What happens if I do not submit a Claim Form?

    If you did not submit an Opt-In Claim Form, either directly by the Internet or by mail postmarked no later than September 16, 2016, you have been barred from participating as a Class Member in this case and you will not receive any monetary recovery from either a trial or settlement. However, you retain the right to sue the VA on your own about the same legal claims that have been alleged in this lawsuit and you will not be legally bound by the Court’s judgment in this class action. If you choose to hire your own lawyer, you will personally have to pay that lawyer.

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THE LAWYER REPRESENTING YOU

11. Do I have a lawyer in this case?

    Ira M. Lechner, Esq. is representing you and all potential Class Members in this case. He has been appointed by a Federal Judge as “Class Counsel.” Mr. Lechner is experienced in handling similar cases against the United States. Address all your questions only to the Claims Administrator at the address noted below. Do not call or write the United States Court of Federal Claims, the Clerk of Court, or the Department of Veterans Affairs.

    If you are still not sure whether you are included in this case, you can get free help by calling or writing to the Administrator at the toll free number or address listed below (see FAQ 13).

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12. Should I get my own lawyer?

    You are permitted to hire your own lawyer if you would like to do so. However, if you choose to hire your own lawyer, you will personally have to pay that lawyer.

    If there is no recovery in this case, you will not be required to pay any attorneys’ fees or costs to Class Counsel. Also, you will not be asked to directly pay Class Counsel their fees and costs. However, if you choose to hire your own lawyer, you will personally have to pay your own lawyer.

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GETTING MORE INFORMATION

13. Are more details available?

    The pleadings and other records in this lawsuit may be examined at any time during regular business hours at the Office of the Clerk of the United States Court of Federal Claims. The address for the Court is:

    Court
    United States Court of Federal Claims 717 Madison Place, N.W. Washington, D.C. 20005

    For more information about this lawsuit:

    1. You may contact the Claims Administrator by telephone toll free at 1-877-810-7928, or
    2. You may contact the Claims Administrator by mail at:
    
    

    Claims Administrator
    DeMons Claims Administrator P.O. Box 4349 Portland, OR 97208-4349

    
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14. My name and/or address have changed, or the VHA employee has died, what should I do?

    If your name and/or address have changed, please send a letter explaining what has changed. If you are the heir of the deceased employee, please send us a letter explaining the situation along with a copy of the Death Certificate to the address below.

    Claims Administrator
    DeMons Claims Administrator P.O. Box 4349 Portland, OR 97208-4349

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