MTA union leaders are clashing with management over allegations that “chronically high” absences among LIRR and other employees have contributed to rising overtime costs that reached $1.3 billion last year — arguing that the high rate of sick time shows the rank and file is overworked.
Metropolitan Transportation Authority leaders have pointed to employee absences — including from workers taking an average of 14 sick days a year — as a key driver of the agency’s high overtime costs, which have spurred several investigations into potential overtime abuse, including among Long Island Rail Road workers.
The law firm of Morrison & Foerster, which was hired by the MTA to investigate the overtime issue, in a report released earlier this month found that “chronically high employee absences across the MTA … create a large number of shifts that are staffed on overtime."
Although the report did not quantify the problem, MTA chairman Patrick Foye said recently that, after subtracting vacation days, holidays and other preapproved time off, the average MTA employee works between 198 and 206 days a year — a figure he said has "consistently trended down" over the past decade. The MTA could not provide historical data showing a decrease in worker availability in recent years.
At the LIRR, the average employee takes about 43 days off annually, or about 17 percent of work days, according to MTA statistics. That includes uncontrollable absences — vacation time, paid holidays, personal days and contractually guaranteed time off — and controllable absences, which include an average of 11 sick days a year.
“Availability affects overtime because employees that are out must be backfilled, usually on overtime,” Foye said at an MTA Board meeting in July. “Low levels of availability is largely the result of contractual provisions in collective bargaining and correspondingly high and growing levels of overtime … This is quite an important issue.”
But labor leaders are rejecting the inference that some workers’ health claims are illegitimate. LIRR union chief Anthony Simon said the rising absentee rate among LIRR workers is due to inadequate staffing levels, increased workload and “depleted and poorly managed revenue” — including the undisclosed sum spent by the MTA on its overtime consultant.
“Maybe if the resources that have been tapped for consulting firms, outside attorneys and extra ‘transformation’ positions and staff would have been allocated to rank-and-file workers who do the physical work, we wouldn't be where we are today regarding overtime,” said Simon, general chairman of the International Association of Sheet Metal, Air, Rail and Transportation Workers — the LIRR’s largest union.
“The bottom line is when you overwork your employees with never-ending projects and service adjustments all year-round, they become worn down and more susceptible to illness, or more chronic injuries,” Simon added.
According to LIRR safety statistics, the rate of employee injuries that resulted in lost time among workers over a 12-month period that ended in October 2018 was 2.94 — down from 3.73 the previous year.
The consultant’s report acknowledged that MTA workers have faced a “historically high workload” over the past year, as transportation agencies have taken on major infrastructure projects and service improvement initiatives, like the railroad’s LIRR Forward plan and the ongoing effort to construct a third track along a 10-mile stretch between Floral Park and Hicksville. The report also suggested the MTA’s hiring freeze — aimed at reducing costs — could be driving up overtime expenses.
But the same report concluded that the high absence rate among workers is a product of unjustifiable union work rules and “poorly calibrated worker incentives.”
As one example, the report explained that because overtime is calculated on a daily, rather than a weekly basis, some workers deliberately “miss work on days when they are regularly scheduled and otherwise would have received straight-time pay, and instead take overtime shifts at other times during the week to increase their total pay while working the same or fewer total weekly hours."
“That’s one heck of an incentive,” said E.J. McMahon, research director for the Empire Center for Public Policy, the organization that publicized the MTA’s alarmingly high overtime rate in an April MTA payroll report.
"Even in cases where they're able to demonstrate there is fraud, the rules create an incentive for it," said McMahon, who doesn't accept workers' claims that the unusually high absentee rate is due to the dangers of their jobs. "Is it any more grueling than any other kind of job that involves physical labor? … I think it's a bit much to suggest that they have to use significantly more sick time because they're getting injured a lot."
According to the U.S. Bureau of Labor Statistics, rail transportation workers suffer from injuries that require time off at a rate of 139.1 out of every 10,000 full-time workers — a rate well above the average of 89.4 for workers from all industries. The rate is even higher among workers in urban transit systems, like the MTA’s buses and subways — 293.3 per 10,000 workers.
The LIRR is seeking to strengthen its policy on sick leave in its next round of collective bargaining with unions. In a document obtained by Newsday, railroad management includes among its preliminary demands: no sick pay for the first day of any sick leave; a requirement for medical certification for sick instances of more than two days; and designating as “AWOL” any employee who calls out sick, but is unavailable when called or visited. The MTA also wants to change the workers’ contracts to allow them to accrue sick days each month if they work more than 50 percent of their scheduled shifts.
Simon said that “work rules dealing with absences have never been a major issue or concern in the past,” and noted that the LIRR already has an “Absence Control Policy” that holds workers to strict standards. The policy dictates that employees “who attempt to use sick leave for any other reason” than actually being sick “will be subject to disciplinary actions up to and including dismissal.”
OVERTIME ISSUES WITH MTA
- April 25: The Empire Center for Public Policy, a conservative think tank, releases a report on the MTA’s payroll that reveals that the agency’s overtime cost climbed 16 percent in a year, including 30 percent at the LIRR. The MTA’s top earner in 2018, LIRR chief measurement officer Thomas Caputo, made $344,147 in overtime, on top of $117,499 annual salary.
- May 1: MTA chairman Patrick Foye calls for separate investigations into excessive overtime among workers — one from the presidents of the MTA’s various agencies and another from the MTA inspector general. The MTA uses its police force to monitor employee time and attendance at some facilities — angering union officials.
- May 10: The MTA Board holds an emergency meeting to discuss overtime. Foye reveals five LIRR workers face sanctions for overtime abuse, and board member Lawrence Schwartz calls on the MTA to hire a special counsel to investigate the problem.
- May 14: The Queens District Attorney’s office reveals it is in talks with the MTA on the issue of potential overtime abuse.
- May 17: Sources with knowledge of the situation say the U.S. Attorney’s Office is also looking into the overtime issue at the MTA, and have subpoenaed pay records for more than a dozen workers.
- May 28: Gov. Andrew M. Cuomo blasts the MTA for not moving forward on the proposal to hire a special counsel to investigate overtime, saying the agency “is not taking this seriously enough.”
- June 5: New MTA Inspector General Carolyn Pokorny announces an investigation of the “apparent sabotage” of a new biometric time clock at an LIRR employee facility in Jamaica that was meant to monitor workers’ time and attendance.
- June 26: MTA officials confirm the hiring of former federal prosecutor Carrie Cohen, of the law firm of Morrison & Foerster, to review overtime, despite the objections of several MTA Board members.
- July 10: The MTA inspector general’s office releases a report finding that former LIRR foreman Raymond Murphy cheated on some of his pay last year by claiming he was working when he was at or near his East Northport home.
- July 24: The MTA, reeling from a financial deficit that it says has been worsened by high overtime costs, announces a reorganization plan that would consolidate several departments and eliminate up to 2,700 jobs.
- Aug. 5: Documents obtained by Newsday reveal several changes sought by MTA management in collective bargaining with LIRR unions, including the elimination of double-time pay for some overtime assignments, a restriction against working more than 16 hours in a row, and new restrictions on sick time.
- Aug. 15: The MTA releases Cohen’s report on overtime, which blames the problem on antiquated record-keeping systems, arcane union work rules, and management's failure to address years of warnings by auditors and watchdogs.
- Aug. 16: At another emergency meeting of the MTA Board, union officials say Cohen’s report vindicated workers, because it did not conclude the high overtime rates were due to fraud. Cohen said there is no way to determine how much, if any, overtime abuse is occurring because the agency’s management controls are so weak.
SOURCE: Newsday research