ORD 33772 - Settle case Becerra et al v City of Omaha ArP/
DMAHA,NF6 RECEIVED
®.'fit 95 DEC -4 Prl 3: 15
�Ary Honorable President
OA'TED FEB0r��
CITY CLE i(K
City of Omaha and Members of the City Couri lia H i , H► B R/ S i.f
Hal Daub,Mayor
Law Department The attached ordinance has been prepared for your consideration. The ordinance
Omaha/Douglas Civic Center authorizes the conclusion of litigation presently pending in the United States
1819 Farnam Street,Suite 804 District Court for the District of Nebraska, wherein current and former Police
Omaha,Nebraska 68183-0804
(402)444-5115 Department employees contend they were improperly compensated for overtime
Telefax(402)444-5125 hours under the Fair Labor Standards Act.
Herbert M.Fide
City Attorney This case and its settlement have been carefully presented to and considered by
the Council in executive session for the express purpose of discussing and
considering pending litigation.
This settlement is recommended by the Law Department, concurred in by the
Police Department, and approved by Mayor Hal Daub.
Payment to the plaintiffs will be in two structured payments over a two fiscal
year period: 1995 and 1996, with the entire City pension contribution paid in
1997 to the retirement system. The plaintiffs' attorneys fees may be paid over a
five fiscal year period: 1995-1999.
Your favorable consideration and adoption of this ordinance is respectfully
requested.
Respec 1 submitted,
ji //1/4-7/7-,( 2_,
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Thomas O. Mumgaard
Assistant City Attorney
Approved as to Funding: Referred to he Ci Council for
Consi.-ra
Ntcr., ..4.4_41,S_Jnfic
Louis A. D'Ercole May. s I ffice/Title
Acting Finance Director
P:\LAW\1705.SAP .
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ORDINANCE NO. 33 7:Z
AN ORDINANCE to approve compromise of all claims against the City of Omaha in Becerra, et
al. v. City of Omaha, pending before the United States District Court for the District of
Nebraska;to approve payment to the plaintiffs in designated amounts;to establish the terms
of such payment; to authorize execution of documents to complete such compromise; and
to establish an effective date hereof immediately upon passage.
WHEREAS,currently pending in the United States District Court for the District of Nebraska
is an action entitled Becerra,et al., v. City of Omaha, 8:94CV361 (United States District Court for
the District of Nebraska), in which 694 persons have joined as plaintiffs claiming various violations
of the Fair Labor Standards Act; and,
WHEREAS,the allegations of the plaintiffs and the contentions of the defendant constitute
disputed claims; and,
WHEREAS,because of the factual circumstances and nature of the claims,this City Council
finds it is in the best interests of the citizens of Omaha to resolve these disputed claims by
compromise upon the terms set forth in the attached Compromise Settlement, Release, and
Indemnity Agreement form; and,
WHEREAS, the amounts payable to individual plaintiffs shall be as designated by the
plaintiffs,but that the aggregate amount paid,including attorney fees but excluding pension or other
benefits, shall not exceed six million dollars ($6,000,000.00).
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
Section 1. That the Law Department of the City of Omaha is authorized to conclude the
claims against the City in Becerra,et al. v. City of Omaha, 8:94CV361 (United States District Court
0
ORDINANCE NO. 33 77 p`
PAGE -2-
for the District of Nebraska) by payment to the respective plaintiffs, and their attorneys, in the
aggregate amount of $6,000,000.00, upon such terms as are set forth in the attached sample
Compromise Settlement, Release, and Indemnity Agreement and allocated among plaintiffs as
directed by the Compromise Settlement,Release, and Indemnity Agreements executed by plaintiffs;
the Finance Department shall issue such warrants as are necessary, said funds to be paid from
various accounts; and the attorneys of record for the City are authorized to execute documents
necessary to fulfill this purpose.
Section 2. This ordinance is not legislative in character and shall become effective
immediately upon passage.
INTRODUCED BY UNCILMEMBER
1.4- 41 _ APPRO4i B
t: i
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YOR OF THE CITY OF OMA
PASSED DEC 19 1995 ,5- ,/ _ C
ATTEST:
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CITY CLE OF THE ITY OF OMA
APP AS TO�FORM•
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ASSISTANT CITY A illy' EY
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COMPROMISE SE FI LEMENT,RELEASE
AND INDEMNITY AGREEMENT
A. This Compromise Settlement, Release, and Indemnity Agreement(hereinafter
referred to as the"Settlement Agreement") is by and between @@ (hereinafter referred to
as "Plaintiff') and the City of Omaha,Nebraska. Those collectively referred to herein as
"the City" shall include the City of Omaha,Nebraska, its elected officials, employees,
agents, and servants,past and present,their transferees, assigns, successors in interest, and
all others who at any time have been in privity with them or any of them.
B. WHEREAS, Plaintiff has claimed that the City has violated the FLSA in one or
more of the following manners: (1) by failing to properly compensate Plaintiff for overtime
worked by reason of its failure to include in.the calculation of Plaintiffs regular rate of pay .
all such compensation as is required to be included in such calculation under the Fair Labor
Standards Act; (2) by not compensating Plaintiff for a pre-shift briefing period or other pre-
shift periods of work; (3)by compensating Plaintiff for overtime hours worked in the form
of compensatory time off; (4)by requiring Plaintiff to participate in mandatory drug testing
without the payment of compensation; (5) by not compensating Plaintiff for all overtime
hours worked on long work days or on Plaintiff's days off; (6)by not compensating
Plaintiff for all time worked in the Omaha Police Academy; (7)by not compensating
Plaintiff for all time worked in training classes, or traveling to and from training classes; (8)
by not compensating Plaintiff for the time spent in the uniform fitting process; (9)by not
compensating Plaintiff for time spent on Honor Guard activities; (10) by not compensating
Plaintiff for time spent engaged in physical training to meet the minimum physical fitness
requirements of the Emergency Response Unit; (11)by not compensating plaintiff for
overtime hours worked because the City improperly claimed that Plaintiff was exempt
under Section 213 of the FLSA; (12)by not compensating Plaintiff for time spent making
City-related telephone calls while off duty; (13) by not compensating Plaintiff at the
appropriate rate for off-duty hours worked by Plaintiff at City facilities; and(14)by not
compensating Plaintiff properly when it recalculated the overtime rate of pay when it made
retroactive wage payments.
C. WHEREAS, Plaintiff has consented to join the instant litigation seeking to
recover unpaid overtime compensation, liquidated damages and attorneys fees on account
of the alleged failure or refusal of the City to properly compensate Plaintiff for all time
worked for or on behalf of the City; and,
D. WHEREAS, bona fide disputes and controversies exist between the parties, both
as to liability and the amount thereof, if any, and by reason of such disputes and
controversies the parties hereto desire to compromise and settle all claims and causes of
action of any kind whatsoever which Plaintiff has or may have in the future arising out of or
•
related to any past failure or refusal on the part of the City to fully and completely
compensate Plaintiff for all overtime hours worked;
E. NOW, THEREFORE, for and in consideration of the mutual promises and
agreements herein contained, including the recitals set forth hereinabove, and the monetary
consideration to be exchanged, the parties agree as follows:
F. Upon receipt by the City of this Settlement Agreement (referred to herein
variously as "Settlement Agreement" or"Agreement"), properly executed by Plaintiff and
signed by one of Plaintiff's attorneys,the City will pay to Plaintiff,and to The Client Trust
Account of the Law Offices of Will Aitchison on behalf of Plaintiff, the total sum of$@@,
prior to withholdings for income taxes, Medicare contribution, and Plaintiff's portion of
retirement plan contributions, if applicable. This sum will be paid by check, after the
deductions set forth above have been made, payable to "The Client Trust Account of the
Law Offices of Will Aitchison" and delivered to The Law Offices of Will Aitchison, 19875
• N.W. Logie Trail, Portland, Oregon 97231. The deductions for income taxes, Medicare, and
retirement plan contributions will be paid according to applicable law to the applicable
agency.
G. The payment set forth in Paragraph F, above, will be due and payable on or
before July 31, 1996. At Plaintiff's sole option, up to 50% of the settlement proceeds shall
be due and payable on or before December 29, 1995.Plaintiff shall execute a separate
document entitled Settlement Allocation Instructions which shall designate how much, if
any, of the settlement proceeds shall be payable on or before December 29, 1995. Should
Plaintiff elect to have any portion of the settlement proceeds payable on or before
December 29, 1995, a separate settlement check in the appropriate amount shall be issued
by the City in accordance with the procedure described in Paragraph.F, above.
H. At Plaintiff's sole option,up to 50% of the payments set forth in Paragraphs F
and G, above, will be paid in the form of liquidated damages and not as back wages.
Plaintiff shall execute a separate documenrentitled Settlement Allocation Instructions
which shall designate how much, if any, of the settlement proceeds shall be payable as
liquidated damages.In the event that Plaintiff chooses to designate any portion of the
settlement proceeds as liquidated damages,the City shall issue a separate check(s) for the
amount of liquidated damages which shall be payable to "The Client Trust Account of the
Law Offices of Will Aitchison" and delivered to The Law Offices of Will Aitchison, 19875
N.W. Logic Trail, Portland, Oregon 97231.No income tax, Medicare, or retirement plan
contributions shall be deducted from the liquidated damages payment(s).
1. At the City's option, it may choose to aggregate the payments made to all plaintiffs
in this action on any one date into one check, which shall be payable to"The Client Trust
Account of the Law Offices of Will Aitchison" and delivered to The Law Offices of Will
Aitchison, 19875 N.W. Logic Trail, Portland, Oregon 97231. If the City chooses such an
47.
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option, it shall also deliver to Plaintiff's counsel a breakdown of the settlement amounts
paid in the aggregated check on a plaintiff-by-plaintiff basis.
J. At Plaintiff's sole option, the portion of the settlement proceeds which Plaintiff
identifies as back wages and not as liquidated damages may be treated for retirement
purposes as being earned by Plaintiff equally in any three of the following years: 1991,
1992, 1993, 1994, 1995, or 1996. If Plaintiff retired from employment with the Omaha
Police Department before January 1, 1994,the portion of the settlement proceeds which
Plaintiff identifies as back wages and not as liquidated damages shall be treated for
retirement purposes as being earned by Plaintiff equally in each of the years 1991, 1992, or
1993 during which Plaintiff was employed. Provided, however, that no portion of the
settlement proceeds shall be treated for retirement purposes as being earned by Plaintiff in
1996 unless Plaintiff actually received such settlement proceeds in the form of back wages
in 1996 and no portion of the settlement proceeds shall be treated for retirement purposes as
being earned in any year in which the Plaintiff was not employed with the Omaha Police
Department. Plaintiff shall execute a separate document entitled Settlement Allocation
Instructions which shall designate how much, if any, of the settlement proceeds identified as
back wages shall be allocated to 1991, 1992, 1993, 1994, 1995, or 1996. In the event that
Plaintiff does not make such an allocation,the portion of the settlement proceeds treated as
back wages shall be treated for retirement plan purposes as having been earned in the
earliest three-years during that period in which Plaintiff was employed, or, if Plaintiff retired
before January 1, 1994, the years during that period in which Plaintiff was employed
immediately preceding retirement.
K. Plaintiff's execution of this Settlement Agreement and acceptance of the
monetary compensation described herein shall constitute a full and complete release,
acquittal and discharge of the City and all those collectively referred to as "the City" (as
described above) from any and all FLSA claims, demands, or causes of action of any kind
whatsoever for back wages, unpaid straight time compensation; unpaid overtime
compensation, liquidated damages, interest, costs, attorneys fees, injunctive or declaratory
relief which Plaintiff has or might have, known or unknown, now existing or that might
arise until January 31, 1996, directly or indirectly related to any past failure or refusal on the
part of the City to comply with the FLSA as described in Paragraph B, above. This release.
includes all such claims or causes of action for attorneys fees or cost, now or in the future,
whether asserted in this.litigation or not. .
L. By agreeing to the terms of this Settlement Agreement and accepting the payment
of monies pursuant to this Settlement Agreement, Plaintiff agrees to and does hereby SAVE
and HOLD HARMLESS the persons and entities released herein and agrees to
INDEMNIFY and DEFEND such person and entities from any and all claims, demands, or
causes of action which are released by this Settlement Agreement but which may in the
future be asserted by Plaintiff, or by another individual or entity on Plaintiff's behalf, based
upon any theory of recovery,whether at law or in equity, and whether made by way of
subrogation, contract, assignment, or otherwise.
M. The City will pay to Mr. Will Aitchison, P.O.Box 83068, Portland, Oregon,
97283-0068, attorneys fees in the total amount of$500,000.00 on behalf of all plaintiffs.
$100,000 of the attorneys fees shall be payable on December 29, 1995, $100,000 of the
attorney fees shall be payable on or before July 31, 1996, $100,000 of the attorney fees shall
be payable on July 1, 1997, $100,000 of the attorney fees shall be payable on July 1, 1998, -
and$100,000 of the attorney fees shall be payable on July 1, 1999. At Mr. Aitchison's
option,the attorney fee payments for 1998 and 1999 may be accelerated to July 1, 1997,
without any reduction in the total amount of the payment. Written notice of the acceleration
of attorney fees shall be given to the City of Omaha Finance Director no later than June 1,
1996.
N. The City shall make its share of retirement or pension contributions for the
portion of the settlement proceeds characterized as back wages no later than January 15,
1997. The time of payment of the City's share of retirement or pension contributions shall
not be determinative of when the payments were earned or received by Plaintiff for
purposes of retirement calculations or benefits.
O. This agreement is contingent upon plaintiffs holding 95% of total dollar value of
the claims in the instant litigation, as reflected in damage calculations provided to the City
by Plaintiff's attorneys in October, 1995, and supplemented in November, 1995, consenting
to the settlement and executing appropriate settlement releases.
P. This agreement is contingent upon ratification by a majority of the members of
the Omaha City Council. In the event that the City Council does not ratify this agreement,
the terms and conditions of this agreement shall not be referred to by either party in the
further litigation of this matter.
Q. It is expressly understood and agreed that the terms hereof are contractual and not
merely recitals and that the agreements herein contained and the consideration transferred is
to compromise doubtful and disputed claims, avoid litigation, and buy peace, and that no
payments made nor releases or other consideration given shall be construed as an admission
of liability, all liability being expressly denied.
R. Plaintiff understands and agrees that Plaintiff may have suffered damages that are
unknown at the present or that may be discovered in the future.Nevertheless, Plaintiff
acknowledges that the sums to be paid in consideration of the Settlement Agreement are
intended to and shall release and discharge any and all FLSA or other claims, demands, or
causes of action of any kind whatsoever arising out of or related to any past failure or
refusal on the part of the City to properly calculate and pay overtime compensation to
Plaintiff for all overtime hours worked as described in Paragraph B of this agreement.
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S. This Settlement Agreement contains the entire agreement between the parties. It
supersedes any and all prior agreements, arrangements,or understandings between the
parties on all subjects in any way related to the transaction or occurrence described in this
Settlement Agreement. No oral understandings, statements, promises, or inducements
contrary to or consistent with the terms of this Settlement Agreement exist. This Settlement
Agreement is not subject to any modification, waiver, or addition. Any changes in this
agreement may only be by means of a writing signed by all parties.
T. The undersigned Plaintiff warrants that Plaintiff has read this Settlement
Agreement and fully understands it to be a compromise and settlement and release of all
claims, known or unknown,present or future, that Plaintiff has or may have against the
person and entities released, arising out of or relating to any past failure or refusal on the
part of the City to properly calculate and pay overtime compensation to Plaintiff for all
overtime hours worked. The undersigned Plaintiff warrants that Plaintiff is of legal age and
legally competent to execute this agreement and that Plaintiff does so of Plaintiffs own free
will and accord without reliance on any representation of any kind or character not
expressly set forth herein.
Signature of @@, Plaintiff
Social Security Number:
Plaintiff's Mailing Address:
APPROVED AND AGREED:
ATTORNEY FOR PLAINTIFF ATTORNEY FOR CITY
FPRo't ► 'S TO
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