[House Hearing, 106 Congress] [From the U.S. Government Publishing Office] WILDLAND FIREFIGHTERS PAY: ARE THERE INEQUITIES? ======================================================================= HEARING before the SUBCOMMITTEE ON THE CIVIL SERVICE of the COMMITTEE ON GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTH CONGRESS SECOND SESSION __________ SEPTEMBER 26, 2000 __________ Serial No. 106-269 __________ Printed for the use of the Committee on Government Reform Available via the World Wide Web: http://www.gpo.gov/congress/house http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE 74-833 WASHINGTON : 2001 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 COMMITTEE ON GOVERNMENT REFORM DAN BURTON, Indiana, Chairman BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California CONSTANCE A. MORELLA, Maryland TOM LANTOS, California CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania JOHN L. MICA, Florida PATSY T. MINK, Hawaii THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington, MARK E. SOUDER, Indiana DC JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio Carolina ROD R. BLAGOJEVICH, Illinois BOB BARR, Georgia DANNY K. DAVIS, Illinois DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts ASA HUTCHINSON, Arkansas JIM TURNER, Texas LEE TERRY, Nebraska THOMAS H. ALLEN, Maine JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois DOUG OSE, California ------ PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont HELEN CHENOWETH-HAGE, Idaho (Independent) DAVID VITTER, Louisiana Kevin Binger, Staff Director Daniel R. Moll, Deputy Staff Director James C. Wilson, Chief Counsel Robert A. Briggs, Clerk Phil Schiliro, Minority Staff Director ------ Subcommittee on the Civil Service JOE SCARBOROUGH, Florida, Chairman ASA HUTCHINSON, Arkansas ELIJAH E. CUMMINGS, Maryland CONSTANCE A. MORELLA, Maryland ELEANOR HOLMES NORTON, Washington, JOHN L. MICA, Florida DC DAN MILLER, Florida THOMAS H. ALLEN, Maine Ex Officio DAN BURTON, Indiana HENRY A. WAXMAN, California Garry Ewing, Staff Director Susan Mosychuk, Professional Staff Member Bethany Jenkins, Clerk Tania Shand, Minority Professional Staff Member C O N T E N T S ---------- Page Hearing held on September 26, 2000............................... 1 Statement of: Pombo, Hon. Richard, a Representative in Congress from the State of California; and Hon. Tom Udall, a Representative in Congress from the State of New Mexico................... 5 Romero, Henry, Associate Director, Workforce Compensation and Performance Service, Office of Personnel Management........ 37 Swartzlander, Kent, professional firefighter................. 19 Letters, statements, etc., submitted for the record by: Pombo, Hon. Richard, a Representative in Congress from the State of California, prepared statement of................. 8 Romero, Henry, Associate Director, Workforce Compensation and Performance Service, Office of Personnel Management, prepared statement of...................................... 40 Scarborough, Hon. Joe, a Representative in Congress from the State of Florida: Prepared statement of.................................... 3 Prepared statement of Bobby Harnage, national president of American Federal of Government Employees............ 54 Swartzlander, Kent, professional firefighter, prepared statement of............................................... 21 Udall, Hon. Tom, a Representative in Congress from the State of New Mexico, prepared statement of....................... 12 WILDLAND FIREFIGHTERS PAY: ARE THERE INEQUITIES? ---------- TUESDAY, SEPTEMBER 26, 2000 House of Representatives, Subcommittee on the Civil Service, Committee on Government Reform, Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m., in room 2203, Rayburn House Office Building, Hon. Joe Scarborough (chairman of the subcommittee) presiding. Present: Representatives Scarborough, Cummings, and Morella. Staff present: Garry Ewing, staff director; Jennifer Hemingway, deputy staff director; Bethany Jenkins, clerk; Tania Shand, minority professional staff; and Earley Green, minority assistant clerk. Mr. Scarborough. We'd like to welcome you all here, and we want to go ahead and start out by understanding that we're going to have a vote on the floor within the next 20 minutes. We certainly would like our two Members to have a chance to testify before we have to split up. I'd like to welcome you all here to the hearing. Today the subcommittee is going to conduct a hearing entitled, ``Wildland Firefighters Pay: Are There Inequities?'' The hearing is going to assess proposals to alter the current statutory caps on overtime pay that's available to wildland firefighters of the Department of Interior and the Department of Agriculture's Forest Service. Wildland firefighters work in remote areas, in national parks, in forests and in other public lands. They perform valiant work in protecting our natural resources from destruction by fire. The epidemic of widely publicized fires that have ravaged our national forests this summer attests to the extreme importance of their work. Today's hearing is going to focus on H.R. 2814. That bill would allow all wildland firefighters to receive overtime at the rate of one and one half times their basic pay, the familiar time and a half. Under current law, supervisory firefighters sometimes earn less money than non-supervisory wildland firefighters, because their overtime pay is in fact capped. This cap affects supervisory firefighters who are exempt from the overtime provisions of the Fair Labor Standards Act, and whose basic pay exceeds the minimum rate of basic pay for GS-10. Their overtime pay is limited to one and one half times the hourly rate of minimum rate of basic pay for GS-10. In contrast, non-supervisory firefighters who are not exempt from the overtime provisions of the Fair Labor Standards Act receive time and a half based on their basic pay when they work overtime. Both the Interior Department and the USDA's Forest Service have experienced a decline in the number of supervisory Federal wildland firefighters. In fact, the total number of firefighter teams have decreased by over 40 percent from 1992 to 1997. Moreover, the Department of Interior experienced a 33 percent decrease in the number of supervisory firefighters from 1992 to 1997. These work force reductions jeopardize not only the safety of persons and property located in wildland areas, but also the firefighters who perform their duties with support and assistance. According to a GAO report, ``Federal Wildfire Activities: Current Strategy and Issues Needing Attention,'' dated August 13, 1999, the current overtime pay structure contributes to this problem by deterring qualified personnel from becoming supervisory firefighters. The Federal Fire and Aviation Leadership Council, an organization of wildland fire program leaders from all Federal agencies that is involved in the wildland fire emergency management agrees with these findings. To illustrate the problems confronting the agencies responsible for fighting wildland forest fires because of the overtime pay cap, consider this example. An incident commander, a firefighter with critical management responsibilities, may earn less money than a truck driver working at the same fire. According to officials within the Department of Interior and the Department of Agriculture, many incident commanders are approaching retirement age. Unfortunately, there are few firefighters interested in replacing incident commanders. Well-qualified managers and supervisors are absolutely necessary to maintain an efficient and effective wildland firefighting force. Congress must therefore ensure that we continue to provide incentives to attract highly skilled and qualified individuals to fill these positions. I look forward to hearing from our distinguished witnesses as we address this important issue. I'd like to ask the first panel to come up, if they will. Panel one is going to be comprised of the Honorable Richard Pombo and the Honorable Tom Udall. Congressman Pombo is a Congressman from the 11th District of California. He's chairman of the Agriculture Committee's Subcommittee on Livestock and Horticulture. He's also a member of the House Resources Committee. His subcommittee assignments cover specialty crops, agricultural marketing, farm credit, public lands and water policy. Congressman Tom Udall is a Congressman from the Third District of New Mexico. He serves on the Committee of Resources, Small Business and Veterans Affairs. I'd like to welcome both of you here and thanks for coming to testify on this very important issue. [The prepared statement of Hon. Joe Scarborough follows:] [GRAPHIC] [TIFF OMITTED] T4833.001 [GRAPHIC] [TIFF OMITTED] T4833.002 Mr. Scarborough. Congressman Pombo. STATEMENTS OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA; AND HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW MEXICO Mr. Pombo. Thank you, Mr. Chairman. I want to thank you for holding this hearing today. I introduced the Federal Firefighters Pay Equity Act, H.R. 2814, after several wildland firefighters in my district brought to my attention the monumental problem and potentially dangerous situation caused by pay inequity. This legislation is needed to strengthen our Nation's ability to fight wildland fires. This is accomplished by addressing the crux of the problem, improving the retention rates of experienced Federal wildland firefighters. At this time, I would also like to thank my colleague, Tom Udall of New Mexico, for all of his help and support in this legislation. Wildfire incidents in this country have reached near epidemic proportions. This year alone, over 79,000 fires and over 6.9 million acres have burned. Alabama, California, Idaho, Montana, Nebraska, New Mexico, Oklahoma, Texas and Wyoming are currently contending with wildland fire activity. At a June 7th House Resources subcommittee hearing on fire management, witnesses testified that larger wildland fires are expected to occur at increasingly alarming rates. Dense forests filled with dry brush which have not been seen historically in the United States are causing increasing fire activity, and the potential for catastrophic burns. With these facts in mind, there is an urgent need to improve the retention rates of our Federal wildland firefighters. Pay inequities contribute significantly to the shortage of key leadership and supervisorial wildland firefighter personnel who work in dangerous fire line situations. While working on emergency incidents, firefighters who are exempt from the Fair Labor Standards Act [FLSA], and hold key leadership positions, receive pay that is capped, often leaving them with less than their regular pay. On the other hand, FLSA exempt firefighters not necessarily considered managerial or supervisorial are compensated for all overtime hours worked at time and a half, based on their regular rate of pay. This inequity leaves little incentive for key leadership firefighters to work extra hours in highly hazardous situations when they are needed the most. The discrepancies in wage rates also creates a disincentive for younger, less experienced employees to advance within the firefighting organization and assume or work toward achieving key leadership positions. These firefighters are reluctant to undertake extensive time, training and commitment required to qualify for FLSA exemption positions, because they would earn less in overtime compensation than their non-exempt subordinates on the same fire lines. A recent GAO report, entitled, ``Federal Wildfire Activities: Current Strategy and Issues Needing Attention,'' observed, ``The disparity in overtime compensation discourages the participation of more experienced employees in firefighting activities.'' A 1998 letter to the director of personnel management from the Federal Fire and Aviation Leadership Council, signed by officials from the Forest Service, the BLM, Fish and Wildlife Service and National Park Service, stated, there has been a decline in the number of Federal employees who are qualified and/or are willing to become qualified to serve on incident management teams. And that is represented in this chart that is on your left here. Further, our remedy to address the personnel shortage issue would be for the Office of Personnel Management to grant emergency workers a waiver for the Fair Labor Standards Act ceiling on overtime rates for exempt employees. The letter continued by pointing out that only 1,500 to 2,500 Federal firefighters serve in FLSA exempt positions on emergency incidents each year, and incident labor costs for firefighters would have increased by a mere 1.3 percent in 1996. And that is on this chart here, Mr. Chairman, as well. This represents a little over one half of 1 percent of the total amount spent on incidents in 1996. My legislation addresses and solves their concerns. Mr. Chairman, the legislative session is running short, and we must work swiftly and in a bipartisan way to allow all Federal wildland firefighters to receive pay equity. These men and women risk their lives to provide for our safety and to ensure that our natural resources are protected. More and more of our forests are off limits to commercial harvest or forest management techniques designed to reduce those fuel loads. As a result, the likelihood that wildland forest fires will become catastrophic will continue to increase. Combined with the inevitable increase in urban interface with our natural resources, Federal wildland firefighters will be needed more than ever to ensure that life, property and natural resources are protected. We need to stand together and address this unjust situation. We must no longer accept these wrongful pay inequities. Before concluding my statement, I would like to express my disappointment with actions taken by the administration in addressing this serious issue. The Forest Service and the Department of Interior have been working with Mr. Udall and myself in support of this legislation. Unfortunately, the Department of Interior is only able to support the intent of H.R. 2814 and unable to support the bill at today's hearing. Apparently the Office of Personnel Management has legislation pending before this committee which would raise the cap for all Government employees. Using wildland firefighters as pawns in their game to get their controversial bill passed at the expense of the safety and well-being of human lives is outrageous and an insult to these men and women. President Clinton has failed the American public by consenting to OPM's role in this deadly game. I commend congressional leadership who have negotiated with the President to set aside emergency funds for this devastating fire season. However, the President has neglected to solve the Nation's declining firefighter population. Offering one-time pay bonuses to secure our Nation's firefighting manpower for only this season is not enough. Action to guarantee the United States has wildland firefighters for future seasons must be taken. What firefighters need is pay equity this year, next year and in coming years. Wildland firefighters will still have bills to pay and children to provide for in coming years, and shouldn't they have an equitable paycheck, too? Wildland firefighters need us all to answer their call for help. H.R. 2814 is the answer. While it may not be reflected in their testimonies, I know the Department of Interior knows it, too. Thank you, Mr. Chairman, again, for conducting this hearing today and I'd be happy to answer any questions you may have. [The prepared statement of Mr. Pombo follows:] [GRAPHIC] [TIFF OMITTED] T4833.003 [GRAPHIC] [TIFF OMITTED] T4833.004 Mr. Scarborough. Thank you, Congressman. Congressman Udall. Mr. Udall. Thank you. I would ask unanimous consent for my full statement to be put in the record, Mr. Chairman. Mr. Scarborough. Without objection, so ordered. Mr. Udall. Thank you. Chairman Scarborough, I appreciate the opportunity to testify before you about my strong support for H.R. 2814 and the serious problems posed by depleting wildland firefighting forces throughout the country. I applaud my colleague, Mr. Pombo, for introducing this important legislation to strengthen our Nation's capabilities to fight fires on wild lands. I know from working with him on the Resources Committee, he's a hard worker, and putting his clout behind this, I'm sure that we're going to get a lot of momentum. As many of you know, in May of this year, the Cerro Grande fire and the Viveash fire swept through the district I represent, destroying several hundred homes and businesses, scorching over 73,000 acres of public and private lands. I'm sure that the damage would have been even worse had it not been for the valiant and courageous efforts of many of the Federal wildland firefighters. In many of the western States, wildland fires affect many communities and natural resources. In New Mexico, for example, the annual wildfires on average burn over 185,000 acres. This year alone, there have been over 453,000 acres burned across the State. Adding to these alarming fire statistics are the shortages of available Federal firefighters. The Southwest Coordination Center in Albuquerque has been able to fill only 16 percent of the orders for fire overhead, skilled supervisors and managers this year. Moreover, with regard to unfilled orders for New Mexico, the National Interagency Coordination Center has also been able to fill 30 percent from other States. I'm aware of the enormous contributions and sacrifices that Federal firefighters have made as they tirelessly fight wildland fires, not only in New Mexico but throughout the country. Mr. Chairman, in your home State of Florida, for example, over 1 million acres of land have burned since 1998, and over 750 homes were either destroyed or damaged during that same period. We face a crisis on a national level, because there aren't enough experienced fire managers. These managers are important because they plan firefighting strategies, mobilize, house and feed hundreds of firefighters at a complex. Compounding the problem is the exodus of experienced professionals working in such areas as wildlife biology, timber sales, recreation management, and even clerical positions. During big fire seasons, up to 40 percent of these professionals set aside their normal jobs to participate in fire management. These reductions adversely affect the quality of our public lands, in addition to jeopardizing the effectiveness and safety of our firefighters. The primary reason for the shortage of firefighting personnel is the pay equity issue that affects the structure and strength of our Nation's firefighters. When called to a fire, firefighters who normally have other jobs are categorized in either non-exempt positions, such as firefighters and truck drivers, or exempt positions, such as incident commanders and logistic section chiefs. Overtime pay is calculated differently for these categories. Non-exempt personnel are compensated for overtime at a rate of one and a half times their normal base pay. Exempt personnel are compensated for overtime with a cap at step one of the Federal General Salary Level 10, which may be below their normal pay. Accordingly, incident commanders, for example, with significant management responsibilities of making life and death decisions and of obligating the Federal Government to over $1 million a day, are paid less than a truck driver working on the same fire. This is inexcusable and makes no sense. Here lies the root of the problem. The pay equity issue has discouraged many potential firefighters from advancing from a firefighter to a supervisory and management position within the fire organization. Many say, why work in a position that demands greater experience, knowledge and responsibility yet provides less compensation. There is a chronic shortage of trained, professional wildland firefighters, which has been exacerbated by this pay equity issue. If we want to stop the exodus of trained firefighters from the ranks of our Federal employees, so that they have an incentive to move into the dwindling ranks of critically short overhead positions, we must fairly compensate them. I ask that my colleagues join Mr. Pombo and 65 others who have co- sponsored this bill, so that we can strengthen our Nation's wildland firefighter corps by compensating them fairly. Thank you very much, Mr. Chairman. [The prepared statement of Hon. Tom Udall follows:] [GRAPHIC] [TIFF OMITTED] T4833.005 [GRAPHIC] [TIFF OMITTED] T4833.006 [GRAPHIC] [TIFF OMITTED] T4833.007 Mr. Scarborough. Thank you for your testimony. I'd like to recognize Congressman Cummings, the ranking member here. We obviously have a vote going, but I want to ask you all briefly a couple of quick questions, then turn it over to Congressman Cummings. And if you all want to come back afterwards, great, if not, we'll go to the next panel. Congressman Udall said the situation was inexcusable. And I have a quote here from you, Congressman Pombo. You said OPM is engaged in a deadly game. That's pretty strong language. Can you expand on that? Mr. Pombo. Yes, Mr. Chairman. Many times, as you are well aware, when we get into legislation, it becomes more an issue of politics and trying to achieve within the political game than it does what's really right. In this particular situation, we have firefighters who are out there who are risking their lives and the lives of the public, fighting fires that are out of control across the western United States. To me, it is not a matter of partisan politics or trying to get other legislation passed. This is a matter of how do we take care of this one specific problem. Congressman Udall and I both represent areas of the country that have had serious problems. We both have constituencies that are firefighters. And this is a problem that needs to be solved. It is not something that should be bottled up because of partisan politics or because the administration wants another bill passed. Mr. Scarborough. And you're saying that they're actually tying what you consider to be a safety issue up with another bill that's totally unrelated to this? Mr. Pombo. I believe that is the case, yes. Mr. Scarborough. Congressman Udall, is that your understanding? Mr. Udall. Chairman Scarborough, I don't know about all the other legislation that's out there pending. But whether the merits of that are good or not, I think the way to tackle this fire issue and the pay equity issue is to deal with it very specifically. I mean, we, as Rich said, we have 6.6 million acres in this fire season up in flames. We have a crisis situation. We have very capable people within our firefighting ranks who could be promoted and who could be up there helping manage these fires and doing a better job at what they do in the field. And with the pay situation now, they can't do it. I think it's urgent we move on this, regardless of the merits of the other legislation. It seems to me, let's focus on what our problem is, what we're hearing from the field, and do something about it. Mr. Scarborough. And make it a stand-alone bill. I'll tell you, I agree with you. It sounds like they're holding this legislation hostage, and if you're talking about it, both of you have said it's a crisis situation. I'm really surprised that they would use a bill that is so important to the safety and protection of life, the protection of property, simply in a game of Washington gamesmanship. It's frightening. Give me very briefly the history of the Forest Service and the Department of Interior's dealings with both of you. Because from my understanding, they were actually supportive of this concept, and I thought, supportive of this bill. Yet when we called them to testify, they ran for cover. They're not even here. Why aren't they here? Have you all talked to them? Who are you talking to there, and why is this issue not important enough to the people of your district and the people in the State of Florida and across the country for them not to even show up at this hearing? Mr. Pombo. Well, Mr. Chairman, all throughout this entire process, we have been working with the administration in drafting the legislation and coming up with a solution to the problem. They have been supportive of our efforts. They have worked with us openly and freely throughout the entire process. I was under the impression that they were in full support of the legislation. It was only very recently that it became apparent to me that they would not show up at this hearing and openly support the legislation. And it's through that frustration that we began to look at what the possibility was of why they would not. Mr. Scarborough. Congressman Udall, can you tell me, was it not your impression that Interior supported this all along? Mr. Udall. My understanding is that both Interior and the Forest Service are very supportive. I think it's the Office of Personnel Management that's the problem here. Mr. Pombo. I believe that's the case, yes. Mr. Scarborough. And so as we're winding up in a legislative session, in an election year, unfortunately, it seems like they're running for cover. It's beyond me. Congressman Cummings? Mr. Cummings. I really don't have anything. I don't know whether anybody's running for cover. I'm not sure what's going on. First of all, I want to thank both of you for your legislation. I think it's good legislation. We have similar legislation which encompasses not only firefighters, but the law enforcement officers, the National Transportation Safety Board inspectors. This is an issue that is not a young issue. And the wildfires are certainly the big issue of the day. And it is extremely important that those ladies and gentlemen who put their lives on the line be compensated. So maybe as we go through this hearing we'll get to the bottom of this. But I just wanted you to know you have my support. Mr. Scarborough. I appreciate you all coming today. We've got about 5 minutes to get over to the vote. When we come back, we'll go to panel two. We're going to be in recess probably for about 15 minutes. [Recess.] Mr. Scarborough. I'd like to call our hearing back to order, and would like to introduce Mr. Cummings for the purpose of giving his opening statement. Congressman Cummings. Mr. Cummings. Thank you very much, Mr. Chairman. This hearing will address an issue that has long been of concern to me, and to Federal employee organizations, the Title V Overtime Pay Cap. In addition to the wildland firefighters, however, the overtime cap affects an estimated 500,000 Federal managers, supervisors, FLSA exempt employees. The overtime cap for Federal managers and supervisors has not changed for over 30 years. Under current law, overtime pay for firefighters, law enforcement officers and managers is limited to that given to a general schedule level 10, step 1 employee. As a result, these employees, the majority of whom rank above that level, earn less overtime than they do for work performed during the regular work week. When this issue was raised at a civil service reform hearing in 1998, the Director of the Office of Personnel Management testified that the cap was unfair and warranted looking into. My response back then was, ``Well, when are you going to do it.'' Like the rest of us, FLSA exempt employees deserve to be fairly compensated, so they can adequately provide for themselves and for their families. Last year, on behalf of the administration and with the support of Representatives Tom Davis and Connie Morella, I introduced H.R. 1770, the Federal Employees Overtime Pay and Limitations Act of 1999. H.R. 1770 would change existing law so that no Federal employees would receive less than his or her hourly rate of pay for overtime work. My legislation would provide wildland firefighters and all other FLSA exempt employees with overtime calculated as the greater of one and one half times the GS-10 step 1 hourly pay rate, or their hourly pay rate. Today, I plan on introducing legislation that further acknowledges the commitment and the dedication of Federal employees when they respond to emergencies and disasters, like the over 65 wildfires that besiege the western United States. In addition to the provisions in H.R. 1770, this legislation would increase the hourly overtime pay rate limitation from a GS-10 step 1 to a GS-12 step 1 for FLSA exempt employees who perform overtime work in connection with an emergency. This legislation would ensure that all Federal employees who put their lives on the line are fairly compensated. There are numerous other bills that amend Title V to raise the overtime cap for Federal employees. H.R. 2814, the Wildland Firefighters Pay Equity Act of 1999, which was introduced by Congressman Pombo, provides that the overtime pay rate for employees engaged in emergency wildland fire suppression activities would be one and one half times their hourly rate of basic pay. Representative Tom Davis has two bills: H.R. 583 and H.R. 2696, that would raise the overtime cap for FLSA exempt Federal employees. I hope this hearing will help the subcommittee determine the merits of these legislative proposals, and what should be done to address all of those affected by the current overtime cap. Thank you. Mr. Scarborough. Thank you, Congressman Cummings, and thank you for your attention to this important issue for some time. Congresswoman Morella, would you like to make an opening statement? Mrs. Morella. Thank you, Mr. Chairman, a very brief statement. I want to thank you for holding this very important and very timely hearing. I've always, as have other members of this subcommittee, been an advocate for our Federal employees, and I think that today's hearing is of particular importance because of the wildfires that have raged throughout the west. I hope that we can reach some kind of an agreement on how to best compensate the individuals on the front lines of those fires, our Federal firefighters. Wildland firefighters work in remote areas, in national parks, in forests, and in other public lands. They perform valiant work in protecting our natural resources from destruction by fire. Unfortunately, there's a dearth of supervisory firefighters. And the situation may only worsen if we don't address this overtime compensation situation. Congress must examine the issue, and ensure that we continue to provide incentives to attract highly skilled and qualified individuals to fight our Nation's wildland fires. I know that we have heard in the first panel two of our colleagues, Congressman Pombo and Congressman Udall, on the issue. I know that Congressman Pombo has offered H.R. 2814, which has been discussed and will continue to be discussed, covering the wildland firefighters who work in the U.S. Forest Service of the Department of Agriculture or Interior. I am, as has been mentioned by Congressman Cummings, a co- sponsor of legislation H.R. 1770, which would alter pay rates for all Federal employees. There are other pieces of legislation also before us. At any rate, I think this is an important hearing. I look forward to hearing from our second panelist here, Kent Swartzlander, who is a professional firefighter, and subsequently from Mr. Romero at the Office of Personnel Management. I yield back, and I thank you. Mr. Scarborough. Thank you, Congresswoman Morella. You have been a tireless advocate for Federal employees, and we appreciate all you've done. Let me go ahead and ask our second panel to come up. It's going to consist of Kent Swartzlander. And Mr. Swartzlander began his career in fire service at an early age, following in the footsteps of his father, who served in the fire service for 37 years. Mr. Swartzlander was appointed as a battalion chief with the U.S. Forest Service in 1999. He has extensive fuels management experience, including 17 years of service on hot shot crews, fighting fires across the United States. Mr. Swartzlander currently serves as President of the Federal Wildland Fire Service Association. It's an organization formed to pursue the acknowledgement and betterment of Federal wildland firefighters. Mr. Swartzlander, we'd like to welcome you here, and thank you for all the work you've done in the past, for those that have been protecting Americans across the country. And we certainly are grateful for your time before us today. I'd like to ask, if you could, to stand up and take the oath. [Witness sworn.] Mr. Scarborough. Please have a seat. And we'd like to ask you to testify, begin your testimony and limit your statement to 5 minutes. And any additional written statements will be introduced into the record. STATEMENT OF KENT SWARTZLANDER, PROFESSIONAL FIREFIGHTER Mr. Swartzlander. Mr. Chairman and members of the subcommittee, I sincerely appreciate your invitation to present my views today on existing wildland firefighter pay inequity. I speak to you today as a private citizen. I represent the Federal Wildland Fire Service Association, a group formed by Federal wildland firefighters employed by the Departments of Agriculture and Interior. As said before, I've been employed in the fire service for quite some time, 27 years, to be exact, 17 of which, as a hot shot and just currently as a battalion chief. Federal wildland firefighters are currently classified as forestry or range technicians or other classifications which do not properly recognize their duties and responsibilities. This is ludicrous. I personally have spent more than 2,000 hours performing fire suppression activities in a single year. Federal wildland firefighters look forward to a rewrite of the 081 firefighter classification series to include wildland firefighters as advocated by OPM Director LaChance. Today, several pay inequities exist in the Federal wildland firefighting arena. These inequities have resulted in recruitment and retention problems as well as a lack of participation by Federal personnel who are not hired as firefighters, but have historically supported emergency incidents. These inequities include a cap on the overtime for FLSA exempt employees, non-inclusion of hazard pay as basic pay for retirement calculations, and no portal to portal pay for Federal wildland firefighters. Federal employees are designated as either exempt or non- exempt from FLSA provisions. Additionally, the agency has further designated some incident positions as non-exempt from FLSA provisions. This allows exempt employees to work in a non- exempt position and receive true overtime for their services. While that sounds beneficial on the surface, this encourages a person qualified to fill a higher responsibility exempt position to choose a lower responsibility non-exempt position which pays true overtime. Imagine being faced with a decision to accept one of two fire assignments. One is an exempt employee, such as an incident commander or operations section chief. Another is a non-exempt position such as a time recorder. When you know the higher responsibility caps your overtime, possibly a lower wage than your base salary, it is difficult not to choose the lower responsibility position, which pays true time and a half overtime pay. It's a stunning inequity to realize that the positions that require the highest knowledge, skills and experience, can pay less than the lower responsibility positions. Even though employees are aware of this, most of our dedicated firefighters realize the importance of their participation in these exempt position roles for public safety and have accepted these lower paying, higher responsibility positions. However, each year, more are opting for the non-exempt positions as Federal wildland firefighters are some of the lowest paid firefighters in the country and need true overtime to support their families. H.R. 2814 corrects this pay inequity and would simply pay all employees true overtime. I ask the members of this subcommittee to act quickly and correct this inequity by supporting this legislation and moving it through this session of Congress. Another inequity concerns hazardous duty pay. General schedule employees receive 25 percent hazardous duty differential pay for fighting fire, but do not receive the benefit of having this differential included as part of their basic pay rate for retirement calculations. Wage grade employees, on the other hand, receive 25 percent environmental pay for fighting fire, and in fact, according to law, have this environmental pay included as part of their basic pay for retirement calculations. All personnel fighting fires and earning differential pay should receive the same benefit, no matter what their pay schedule. Yet another inequity deals with portal to portal pay, or lack thereof. Federal wildland firefighters are only paid for their actual work time, including travel. This means that these firefighters are not being paid while they're being locked down in fire camps, not being paid while eating rations without sanitation facilities and sleeping in paper bags on the fire line. However, most cooperators that we employ, or the agencies employ, working on these same fires, are compensated at full portal to portal pay. I'm sure you're aware that the current 10 year average for acres burned has escalated tremendously, as compared to previous decades. You must have witnessed the rash of new fire starts across the United States in the last 2 months, many of which were large devastating fires. With almost 7 million acres burned to date, this year is not a fluke, but rather, a very real example of potential in years to come. We support the agencies' and administration's efforts as proposed in a recent report to the President to increase funding for fire preparedness. As was pointed out in a USDA Forest Service report in Region V to Congressman Herger, reductions in initial attack capabilities over time have reduced the ability to minimize acres burned. I believe the best thing that can happen would be for the wildland agencies to be funded at a level which will allow for the sufficient and properly compensated Federal resources for firefighting. This will encourage the retention and expertise of their employees as well as reduce the need for cooperators or expensive contractors. A first positive step will be the elimination of the overtime pay cap currently in place. Any other proposal to alter the pay cap formula is inappropriate. We appreciate the administration's latest efforts to fix the pay cap problem as stated by Mr. Cummings earlier. However, this solution does not fully resolve the full scope of the issue. This concludes my testimony. As a part of the record for this hearing, I ask the committee to accept all written testimony provided to the committee for the July 26th hearing that was canceled. And I'm ready for any questions you may have. [The prepared statement of Mr. Swartzlander follows:] [GRAPHIC] [TIFF OMITTED] T4833.008 [GRAPHIC] [TIFF OMITTED] T4833.009 [GRAPHIC] [TIFF OMITTED] T4833.010 [GRAPHIC] [TIFF OMITTED] T4833.011 [GRAPHIC] [TIFF OMITTED] T4833.012 [GRAPHIC] [TIFF OMITTED] T4833.013 [GRAPHIC] [TIFF OMITTED] T4833.014 [GRAPHIC] [TIFF OMITTED] T4833.015 [GRAPHIC] [TIFF OMITTED] T4833.016 [GRAPHIC] [TIFF OMITTED] T4833.017 Mr. Scarborough. Without objection, on that request, so ordered. Let me begin just touching on something you talked about at the end, and that's just to talk about how we have a possible crisis situation regarding fires across the country. We heard earlier from Congressman Pombo that actually the situation is not getting better, it was getting worse because of just the situation out there, and predicted catastrophic burns. You've just said that this year is not a fluke. Do you expect in the coming years actually more fires, just because of what's happening out there? Mr. Swartzlander. Mr. Chairman, I wouldn't expect a substantial increase in the number of fire starts. I think the historical range in that is pretty well set. There's so many person-caused fires and so many lightning fires, those don't change very greatly over the years. But the acres burned, in my experience, in my 27 years, in the last decade we've had a substantial increase. And I expect that to continue for a couple of reasons. One is the amount of fuel that we do have built up in the woods out there, in the wildlands at this point in time. The second reason is the quite reduced work force we have to deal with the initial attacks on these fires. In my area that I'm employed in, as an example, we have the charts up there that say the same thing, in the late 1970's, we had over 800 firefighters employed on the exact area I work at. Today we have 160. So in a 25 year period, we're down to 20 percent of what we used to have. And the fires that we're dealing with out there are bigger, tougher fires. There's a lot more urban interface involved. We're focusing a lot of our efforts on the communities and saving the homes, reduce the amount of people that we have out there. That becomes a high priority. Mr. Scarborough. So, more fires and less firefighters. How many wildland firefighters are full time and how many are of the Federal employees perform the wildland firefighting as a collateral duty? Mr. Swartzlander. Well, to the best of my knowledge and information that's been shared with me, there's about 1,400 permanent, full-time firefighters within the five wildland agencies. Additionally, well, all total, approximately 7,000 to 8,000 people that are employed with primary duty of firefighting across the United States in those five agencies. That's to the best of my knowledge. In addition to that, the people that have, you say a collateral duty, we call them the ``militia'' do other things, and they're not hired specifically for firefighting; they come out. I could only guess on that. My guess would be a couple thousand, something like that. Mr. Scarborough. Let me ask you this. And I think the thing that surprises me the most, and from hearing the statements of others up here, is that we have a situation where we're basically paying our most qualified people, let's say our generals and our admirals, less than we're paying our privates. The incentives are just totally backward. Do you know of specific examples, and can you cite a few, you don't have to give names of people, but of qualified people that if you're on the front line against a fire that's sweeping across acres, and in a very dangerous situation, do you know of people that are saying, ``Hey, listen, I'd love to help out, but I've got a family to take care of, and I am not going to go into a supervisory role; you can give it to somebody who's less qualified?'' Mr. Swartzlander. I don't know personally of anybody out there that's going to tell you that, in light of the situation, in their face. Mr. Scarborough. Won't say that, right. Mr. Swartzlander. But if they were given an opportunity of, when they're ordered up for a fire, here's a job, do you want this job, or there are maybe two different opportunities, which one are you going to go for? I mean, it's likely the person's going to go for the one that pays the best. And what's so out of whack about the whole thing is that you could have a GS-5 or GS-6 type person in the normal work force supervising GS-11s in fire incident. It happens all the time. Part of that problem is the fact that the overtime pay cap is in effect. The GS-11 can take a non-exempt position and get paid full time and a half overtime, and the GS-5 was already in one, a non-exempt position, so now it doesn't matter for them. Mr. Scarborough. I missed the first part of the statement you made. You had talked about something and said it was ridiculous, and said that you spent up to 2,000 hours in a single year fighting fires. Could you go back and explain that again? What were you saying there? Mr. Swartzlander. Well, the frustration stems around the fact that we're not classified as firefighters. We're forestry technicians or range technicians or whatever. That's the frustration. For somebody to tell me that my true classification is a forestry technician, to me it's just ludicrous. Because I have spent over 2,000 hours of work in fire suppression alone. Not preparedness, but actual fire suppression activities, in one calendar year. And this happens all the time with folks. So for me to spend what the normal work person would spend, 8 hours a day, 5 days a week, which is a little over 2,000 hours, I'm spending a whole year's worth of work just fighting fire in a more condensed time. But I'm not even a firefighter. So there is a lot of frustration. We realize this isn't a legislative fix, it's an administrative fix, but we've been working on it. Mr. Scarborough. Last question, then I'll pass it on to Congressman Cummings. Do you consider this issue and the back and forth, the political bickering that's going on right now, that's preventing this bill from being passed, do you consider this to be a safety issue like Congressman Pombo? Mr. Swartzlander. I definitely do. And it's for those reasons that we're not getting the right people into the right jobs. The highest level of responsibility also has the highest level of knowledge associated. And we're not absolutely getting the right people into the right jobs all the time. Mr. Scarborough. You're not getting the best people? Mr. Swartzlander. We're not getting the best people in the best positions at all times. There has to be some additional incentive. And right now, we have total opposition to that, when we can have the lowest level of requirement of knowledge and responsibility attain a higher wage than the very highest level on a fire. Mr. Scarborough. Thank you. Congressman Cummings. Mr. Cummings. You had said toward the end of your statement that my legislation would not cover all of your concerns. Can you just tell me what else needs to be covered? Is it the hazardous? Mr. Swartzlander. Mr. Cummings, my focus on that statement was just at the overtime pay cap. Since this hearing was for the wildland fire pay inequities, of course, I've surfaced some other things that we've been working on for a number of years here. The reason I said that H.R. 1770 would not be a fix for our concerns out here, for the full scope of the issue, is because it wouldn't fix the non-exempt/exempt issue. It would certainly allow for better pay for these folks, and there will be some incentive for some encouragement for those highest skilled and knowledgeable people to fill those highest roles. But it's not going to be a complete fix, because people will still know that if you get into a non-exempt position, you would get true time and a half overtime. So really what we need for the emergency incidents, when we get into the incident demand system and they're designated exempt and non-exempt positions, we need a full elimination of the overtime pay cap so that we don't have this issue about which position might or might not fill because of the differences in pay. Mr. Cummings. We have 6 percent fewer trained firefighters than we did last year? Do you know that? Mr. Swartzlander. I'm not absolutely aware of that percentage. I do know what I told you, in the late 1970's, we had 800 on my forest area, now we have 160. So 80 percent reduction over 25 years, and at least half of that came in the last 6 to 8 years. So we've reduced down to a bare bone organization. Mr. Cummings. Do you think some of that has to do with this issue that you're here today about? Mr. Swartzlander. Well, maybe some of it. We know that there are always going to be fires. Fires aren't diminishing. It's just a matter of when the fire is going to happen, not if it's going to happen. We know it's going to happen. So I think it's been rather inexcusable to diminish the work force as we have had. But I would say it's been a budget constraint, from my knowledge. Mr. Cummings. When did you say you had 800 in your unit? When was that? Mr. Swartzlander. In the late 1970's. Mr. Cummings. So are the first just as frequent as they were, or more today than, say, around that time that you had 800? Mr. Swartzlander. Fire frequency has been about the same as when we had 800. But acres burned has escalated tremendously. Mr. Cummings. And you attribute that to, in part, I think what you said was that the initial getting to the burn in the beginning---- Mr. Swartzlander. Right, the initial attack resources, those fire engines, hot shot crews that are on base, ready to go, to put the fire out. With the diminished work force that we have right now, we frequently get stripped of our resources trying to support other fires away from our home area. But when we get down to where we have a fire in our home area, we have a limited amount of resources out there to work on the fire. Mr. Cummings. How do you feel about the training? What goes into the training of somebody like you to do this kind of work? Mr. Swartzlander. I think the training is really good. I think there's an extensive amount of training that goes into the individuals out there as they're coming up through the fire service. In my years, since I started with the fire service, the training has escalated, become a lot more professional, a lot more requirements. So I think people are getting trained appropriately. Mr. Cummings. And this is truly a specialty, isn't it? Mr. Swartzlander. Oh, yes. The difference that I've seen, growing up in the fire service over the years, one of the biggest differences is the amount of homes that we have out there, on all wildfires. I know Mrs. Morella talked about the remote areas and stuff, and we certainly go into those remote areas with the smoke jumpers and the hot shots and in the wilderness and stuff. But it's incredible how many fires we go to nowadays where we are dealing with homes, in all, almost all of our wildfire situations. So that has become a big component of what, a new thing out there for the wildland firefighter in the last 10, 15 years. Mr. Cummings. So I take it that before, if you didn't have homes, there were certain things, I guess you could allow it to burn to a certain degree? But now you I guess you have to stop it as soon as you possibly can? Mr. Swartzlander. Well, in some places you may have had policy where you could have let it burn to some degree, but not a whole lot of places. We just didn't have that concern about the urban interface. So we could concentrate on saving the natural resources out there, and that was our primary focus. Now whenever we have homes involved, we have to engage with that concern and that becomes a primary focus, and we end up backing off the natural resources values out there, if that's the case. Mr. Cummings. Just one more question, Mr. Chairman. Mr. Scarborough. Sure. Mr. Cummings. Let me ask you, say we were able to fix this problem. What effect do you think that would have on the people that you work with every day? Mr. Swartzlander. Well, there's two things. One is, I think it would mean, and I think most of the people I'm representing, it's a matter of fairness that we resolve something. The other one is it's going to give a considerable amount of incentive for people that have not been participating fully in the past to participate. And it's going to give a lot of incentive to retain the people we have out there. In my part of the country, we're losing people in the masses to our cooperators, who pay much better money for the same job. We lose droves of them. Our joint apprentice academy that brings the youngest folks in, takes them through the training academy, develops them into a career employee, we're lucky if we retain 25 percent of those individuals into the careers. They're all going to our cooperators. As soon as they get through the training academy, they're gone. Mr. Cummings. Thank you. Mr. Scarborough. Congresswoman Morella. Mrs. Morella. Thank you, Mr. Swartzlander. Yes, I am very intrigued, you gave us a very comprehensive testimony here. Obviously you were nice enough to stay within our time constraints on the committee, and I thank you for it. Also, as a former English teacher, I'm surprised, you even categorized it, you did an outline. I won't grade the outline, but you did an outline. And I wondered, in the outline you had mentioned the issues that you have expanded in your testimony. I just wondered if you might prioritize for us what you consider to be like the most important, maybe a couple of others. You have talked about the misclassification of the Federal wildland firefighters, the hazardous duty pay as part of the retirement calculations, the need for portal to portal pay, other retention problems, the overtime pay, pay cap elimination. Would you venture to try to prioritize? Mr. Swartzlander. Well, you're asking a tough question. Mrs. Morella. I know. Mr. Swartzlander. But I think most of us out there probably truly believe that the most important thing is getting proper classification. I think a lot of things stem around that. For us, we wonder if really people are taking us serious enough at times, because we're forestry techs and range technicians, and we're not classified firefighters. But this is all what we're hired for, to fight fires. So I think the classification issue is a big one, and we understand it's not legislative. But that is a big concern. As far as the other three, the portal to portal, the pay cap and the hazard pay, it's really tough for me to sit here and say one is more important than the other. They're really all about fairness. We have wage grade people in our same system come out to fight fires with us. They're given this opportunity to get their environmental pay as part of their base pay rate, and it's because they're blue collar and we're considered white collar. As I talk with OPM, that's what they tell me. Mrs. Morella. Are they, other than the non-legislative remedy issue of classification, are they addressed in the piece of legislation? Do you feel the Pombo bill, for instance, addresses all of them? Mr. Swartzlander. The Pombo bill is just the overtime pay cap. I've talked with Representative Pombo and Senator Burns both about these other issues. And we expect that you will see something in the future to address those issues. We've also talked with OPM about the hazard pay thing, if it could be something that could be fixed non-legislatively. Because it seems to be just an omission from law, rather than an exclusion. But that interpretation battle seems to stem a need to have a piece of legislation to fix it. Mrs. Morella. I had an opportunity to scan the AFGE statement that's on the table there. And they mentioned the role of the Department of Defense firefighters that fight alongside the Forest Service firefighters and Interior firefighters. And I just wonder, is this a frequent occurrence that happens? And then obviously, the Pombo bill does not include the DOD firefighters, so I would ask your opinion of that. Mr. Swartzlander. My best answer for you is, I know while I worked in southern California for a number of years, places like Camp Pendleton, or Vandenberg Air Force had a lot of wildfires in their area, and they do end up working side by side with some of our resources. Other than those areas, and there's probably others around the United States I'm not that aware of, but in the event of the large devastating fires in Montana and Idaho in the last couple of months, of course we brought in a lot of military folks that were trained up a couple of quick days and taken out on the fire lines in some of the safer spots to work on. I would say that's a rarity. It seems like we have tapped that resource a few times lately, but it's due to the fact we don't have enough resources ourselves any more. Mrs. Morella. How do you feel, just your general impression, of expanding this concept of overtime pay and making it higher during emergency situations, very much like that bill, H.R. 1770? Do you have any problem with that? Mr. Swartzlander. Well, I don't know that much, and I probably should, but I don't know that much about the DOD firefighters' actual pay schedule concerning this event. I understand they're capped, too. As far as the issue with others and what H.R. 1770 would cover, the entire Federal Government, I guess my issue with that is, I really feel strongly that this is a different situation, that what we're talking about is an emergency situation only. This bill would not cover me when I was off in the wintertime doing training or something else, doing something else that might be getting overtime, even prescribed burning, this bill would not cover me. But for the emergency incidents, when we have an incident command system established, and we have this issue with exempt and non-exempt positions, and the rates that go along with them, that's the focus of my issue that I don't believe fits into others. An emergency incident with the incident command system that we use. This is a real problem, and anything but eliminating the pay cap will not fully resolve the issue. Mrs. Morella. And I very much appreciate your addressing the specific issue, which is why you are here. Mr. Chairman, just another brief one, about the fact that, how much of a factor is, it's kind of hard to answer, how much of a factor did the reduced numbers of supervisory firefighters play in the overall ability of the firefighting teams to manage and contain the fires out west? Mr. Swartzlander. You want me to answer that? Of course, I can't give that, all I could do is guess. But one thing I want to point up, just so we all have knowledge of it, is we talk about the supervisory manager firefighters. Actually, the overtime pay cap now affects the person that's engine captain, just the third rank up. You start firefighter to an engineer to an engine captain. That captain, in the higher steps of that grade level, is affected by the pay cap. So you don't have to get very high in the organization to be affected by the pay cap. As far as how much of a role that was played out there, I can't tell you, and some of it may be attrition for the people that are retiring, but our reliance upon overhead management teams, our reliance on our cooperators, State and local government, to fill positions on the overhead management team, has increased considerably over the last several years. I know you heard some statistics earlier talking about how many less teams we have out there or people that are available for the teams. We have reduced the numbers of teams dramatically. And even on those teams, where we used to have 100 percent Federal employee involvement on those overhead teams, now we're probably looking at somewhere in the neighborhood of about 30 percent of the team members are State and local government. Which, we're glad that they are participating. But generally, their expertise is different than ours. You may get people out of the city or county fire departments that aren't, that do a lot of structure fires but not a lot of wildland, and now we're relying on what they know to help us out in wildlands. So things have changed out there. Mrs. Morella. Thank you, Mr. Swartzlander, and thank you, Mr. Chairman. Mr. Scarborough. Thank you, Mrs. Morella. Mr. Cummings, any other questions? Mr. Cummings. No. Mr. Scarborough. Well, thank you, Mr. Swartzlander, I appreciate your coming and testifying before us today. It's been very helpful, and we look forward to having some positive news for you and others that again put their lives on the line protecting property and life in our country. Thank you. Mr. Swartzlander. Thank you, Mr. Scarborough. Mr. Scarborough. We'd like to now move on to our third panel. And our third panel will consist of Henry Romero. Mr. Romero has served as Associate Director for Workforce Compensation and Performance at the Office of Personnel Management since October 1997. He is responsible for developing and administering compensation, classification, and performance programs for the 1.8 million Federal employees in the executive branch. Mr. Romero has also served at the Department of Justice and the Department of Defense, and this is his first appearance before the subcommittee, and we welcome his participation. I need to swear you in, Mr. Romero. [Witness sworn.] Mr. Scarborough. Thank you. You may begin. STATEMENT OF HENRY ROMERO, ASSOCIATE DIRECTOR, WORKFORCE COMPENSATION AND PERFORMANCE SERVICE, OFFICE OF PERSONNEL MANAGEMENT Mr. Romero. Mr. Chairman and members of the subcommittee, thank you for inviting me to testify today on overtime pay for wildland firefighters. We are pleased to have the opportunity to discuss the administration's plans to deal with overtime pay problems affecting Federal employees who perform work in emergency situations, including wildfire emergencies. During the last few months, it has become clear that legislation is needed to help address the challenges posed in responding to emergencies and disasters, in particular, the wildfires that have besieged our western States. The efforts of our brave Federal wildland firefighters and other disaster relief personnel are being hampered by decades old personnel administration rules related to compensation for overtime work that never contemplated the situation we currently face. Let me explain the problem briefly. The overtime pay rate for lower graded employees covered by the Fair Labor Standards Act [FLSA], is equal to one and a half times their hourly regular rate of pay. The hourly overtime rate under Title V of the United States Code for FLSA exempt supervisors, managers and other higher graded employees, on the other hand, is limited by law to the overtime rate for GS-10 step 1. This difference in overtime pay entitlement has helped to create a disincentive to performing supervisory wildfire suppression duties. Last month, President Clinton took decisive action to address this problem. He instructed the Departments of Agriculture and Interior to use their statutory authority to provide incentives for those who make financial sacrifices by performing supervisory duties in the difficult battle to suppress the western wildfires. This action offered a timely short-term solution to a longstanding problem. We all agree that a long-term solution is needed. Therefore, the administration submitted a legislative proposal to Congress last week that would address overtime pay problems in two ways. First, the administration proposal ensures that no Federal employee would receive less than his or her normal rate of pay for overtime work. Second, it recognizes the special demands and difficult circumstances involving emergencies that threaten life or property by increasing the hourly overtime pay limitation from GS-10 step 1 to GS-12 step 1 for FLSA exempt employees who perform overtime work in connection with such an emergency or its aftermath. The head of each employing agency, in consultation with the Office of Management and Budget, would be authorized to determine the existence and duration of an emergency and whether the work of individual employees is connected to it. The legislative proposal submitted to Congress last week builds upon and includes changes proposed in a bill submitted by the administration last year to correct longstanding FLSA exempt overtime pay problems for Federal employees generally. We urge Congress to give early consideration to the Government- wide proposal submitted to Congress last week. We are convinced that a Government-wide solution is needed to ensure that employees are treated equitably. A Government- wide solution would be more equitable, because it would recognize that several different categories of Federal employees are called upon to perform large amounts of overtime work in difficult circumstances, sometimes involving a direct threat to life or property. For example, the GS-10 step 1 hourly overtime pay cap now applies to National Transportation Safety Board inspectors who investigate accident scenes, Federal Emergency Management Agency employees who provide assistance at the site of a natural disaster, weather forecasters who work long and unpredictable hours because of the vicissitudes of severe weather conditions, and civilian Defense Department employees who provide support for our armed forces in military operations. In addition, firefighters are also subject to the same cap for any regularly scheduled overtime work they perform outside their normal tour of duty. H.R. 2814, a bill referred to the subcommittee earlier this year, provides a solution to this problem for only one group of Federal employees, wildland firefighters who work in the U.S. Forest Service of the Department of Agriculture, or in the Department of the Interior. But it would not provide any relief for many other similarly situated Federal employees. Moreover, the rate of overtime pay provided by H.R. 2814, up to one and a half times an employee's basic rate, regardless of grade level, is well in excess of the amount typically provided by private sector employers. As you requested, let me compare the Federal Government and the private sector with respect to overtime compensation. Information available to the Office of Personnel Management from recent non-governmental sources indicates that only a minority of private sector employers provide time and one half overtime pay to employees who are exempt from the FLSA. For example, a 1999 Wyatt Data Services exhibit book on overtime policies for exempt employees shows that 17 private sector firms out of 104 surveyed provided time and one half overtime pay. Five firms provided double time pay. But a majority, 54 firms, provided straight time pay. A 1996 compensation survey report of the Human Resource Association of the National Capital Area shows that 85 percent of surveyed employers in the national Capital area do not pay any overtime pay to their FLSA exempt staff at all. Of those that do make such payments, the Human Resource Association reports that overtime payments typically are made at the employee's base rate of pay, not time and one half. However, both of the sources of information cited covered a broad range of industries and were not limited to emergency services. We believe the administration's newly revised overtime pay proposal would address virtually all of the overtime pay problems that prompted consideration of H.R. 2814. It would also bring Federal overtime pay practices closer into alignment with private sector overtime pay practices by guaranteeing that all FLSA exempt employees receive no less than their regular hourly rate of pay for any overtime work. And it would do all of this at a reasonable cost to the taxpayer. As always, OPM would evaluate the effectiveness of the new overtime pay practices and after 2 to 3 years of experience recommend any additional changes that may be appropriate. This concludes my prepared remarks. I would be pleased to answer any questions you may have. [The prepared statement of Mr. Romero follows:] [GRAPHIC] [TIFF OMITTED] T4833.018 [GRAPHIC] [TIFF OMITTED] T4833.019 [GRAPHIC] [TIFF OMITTED] T4833.020 [GRAPHIC] [TIFF OMITTED] T4833.021 [GRAPHIC] [TIFF OMITTED] T4833.022 [GRAPHIC] [TIFF OMITTED] T4833.023 [GRAPHIC] [TIFF OMITTED] T4833.024 Mr. Scarborough. Thank you, Mr. Romero. Let me begin by talking about something that apparently is a great concern to Congressman Pombo and Congressman Udall, who called the situation inexcusable, and Congressman Pombo, I'm sure you heard, went a little further and said right now the administration was engaged in a deadly game by pushing harder for the Government-wide fix, as opposed to something that just keys in on this one crisis issue. Would you agree that if Congress can't make a decision on the Government-wide preference that we at least need to go ahead and get a fix before we're out of session this year on the firefighters issue to make sure that there's not a preference for people denying promotions? Mr. Romero. No, I'm not sure I agree with that, Mr. Chairman. Mr. Pombo's bill addresses one group of employees, one segment of the work force. Mr. Scarborough. Right. Mr. Romero. As Mrs. Morella pointed out already, there are statements to this subcommittee in regard to this hearing already talking about. You forgot the DOD firefighters. I'm sure there will be other groups of employees that will emerge. If there are practices that show that only one group of employees have been taken care of, I wish we had the luxury in OPM to just deal with pay policies one group at a time whenever an issue is raised with us. But we have the responsibly to look across the entire executive branch, and as we mentioned in my testimony, we already have been approached by the National Transportation Safety Board, by FEMA, by DOD, about people that get involved in emergency work and do face threats to life and property in the course of their duties that would normally say, ``What about us?'' Mr. Scarborough. But my question to you is, if agreement can't be reached on a Government-wide policy, are you saying that we shouldn't pass a firefighter's fix? Mr. Romero. I think our bill addresses the wildland firefighter issues, the ones they've raised, and would do so in a reasonable way. I think that bill should address the concerns that have been raised to the subcommittee. Mr. Scarborough. Right. But my question is, would you support the passing of that legislation by itself in a stand- alone position if it's obvious that Congress can't pass the administration's Government-wide fix? Mr. Romero. No. We would not support that because of the, we think it's unnecessary, and the overtime rates that would be in place for these employees are, we think, excessive to the need that has been addressed and would create problems in pay administration for all the other groups that would surely come to the subcommittee and want to be fixed as well. Mr. Scarborough. Let me ask you this. Can you give me another example of these other agencies where more experienced people are actually discouraged from taking promotions because they're going to actually get a pay cut? Mr. Romero. The pay cap applies to everybody. And the situation would be the same in FEMA, where higher graded employees would have the same disincentive to taking on other kinds of duties that are in a different FLSA category. They react to natural disasters. They react, in your home State, to hurricanes and flooding. And they have the same kind of challenges in terms of people having a disincentive to taking certain duties to which the pay cap applies, the overtime pay cap. Mr. Scarborough. I've got a Judiciary vote, I've got to run, I'm going to ask another quick question then pass it on, and then come back and maybe get some more questions in. Let me ask you this. Do you have evidence from FEMA or any other area of similar recruitment and retention problems in other positions covered by the administration's proposal, like we have in this situation? Mr. Romero. We have; in approaching us, they have cited the same kinds of concerns about employees who are in non-exempt positions being unwilling to take on higher graded duties that would put them in an exempt category or would move them into a GS-12 or GS-13 position that would be subject to overtime pay caps. Yes, sir, that is a situation that exists elsewhere beyond the wildland firefighters. Mr. Scarborough. And where is that? What agency? Mr. Romero. FEMA, National Transportation Safety Board, Department of Defense. Mr. Scarborough. And do you have evidence of, again, similar recruitment problems because of that situation, like we have in this firefighting situation? Mr. Romero. Yes, we do have problems with the overtime pay cap. We have evidence of the overtime pay cap creating disincentives for employees outside the wildland firefighter situation, not willing to take certain other duties because of the overtime pay cap. Mr. Scarborough. Right. And I'm sorry, but my question is, is there evidence as direct as we have evidence here that's actually causing recruitment and retention problems like it's causing in this situation? Mr. Romero. I don't have data that would be specifically addressing the same kind of scope of situation as the data presented here this morning. Mr. Scarborough. My time has run out. Mr. Cummings. Mr. Cummings. You know, as I was listening to you, I couldn't help but think about the problem that we are developing in Baltimore, where the mayor gave the policemen a 10 percent raise. And it will be, I think, 33 percent over the next 3 years. And then with all the other city employees, like the firefighters, you know, they're saying, what about me, we put our lives on the line. The garbage men are saying, we lift heavy cans every day, and all these fumes and getting rid of garbage. And the interesting thing, I think the thing that troubles me about all of this, is that we are in a situation where we really do sympathize with the firefighters. And I think you do, too. Mr. Romero. We admit that's a problem, and we've submitted some proposals to address that. Mr. Cummings. Yes. And you don't want to be viewed as being anti-firefighter, because you are trying to deal with the kinds of problems that we're now beginning to face in Baltimore. But at the same time, you want to get a remedy that will hopefully cure everything, so you don't have folks coming in and out of here, like you said a few minutes ago. And that's got to be a kind of tough situation. And then the firefighting situation is right on the front burner, I didn't want to use burner, but it is, it is right here in front of us, because we're dealing with it, it seems like, almost on a daily basis. And that leads me to, Mr. Swartzlander's testimony was excellent, by the way, he testified that wildland firefighters are incorrectly classified as forestry technicians, and that OPM has agreed to address this issue. In your opinion, are the wildland firefighters incorrectly classified? Mr. Romero. We're doing a data gather right now as a result of that assertion. We're not sure. We issue guidelines for agencies to use to classify the duties and responsibilities they assign to employees. The classification of wildland firefighters as forestry technicians in the GS-462 series is a function of the Department of Agriculture and Department of Interior having made that decision that's where they belong, based on the scope of duties and responsibilities they have assigned. They've made a decision that they're not firefighters by name, but we have a series for firefighters, and there's a lot of other Federal employees who are firefighters. That's an administrative solution that can be accomplished by determining what is the proper duties and responsibilities. And we can do that with administrative options. But that's a decision that's made by management as to what are the proper duties and responsibilities, with the proper classification based on the assignment of duties. I would point out that the grade level criteria for forestry technicians in many cases, provide for higher grade levels than firefighters who are in the GS-081 series. So there's some tension there as to whether or not there's higher grades for forestry technicians than there are for the typical GS-4 and GS-5 firefighters. Mr. Cummings. Do you know why the wildland firefighters weren't included in the Firefighters Reform bill enacted back in 1998? Mr. Romero. No, I don't, Mr. Cummings. Mr. Cummings. Are you familiar with H.R. 1770? Mr. Romero. Yes, I am. Mr. Cummings. Do you see that as a solution to the problem, or do you like what you're doing better? Mr. Romero. Well, H.R. 1770 addressed an issue that's been discussed at length this morning, the fact that at some, in many cases, people that are assigned to overtime work because of the cap actually earn even less money than their basic hourly rate of pay; 1770 sought to address that. And had that been dealt with by the Congress last year, we would not have been talking about that today. The new bill deals with that problem, and in addition, solves by raising the pay cap to GS-12 step 1 the question of having a low pay, overtime pay cap that is a disincentive for certain employees to take on supervisory or higher graded duties. So it does one up on H.R. 1770. Mr. Cummings. The GS-12 step 1, what's the significance of that? Mr. Romero. Well, I know we've been talking mostly in the abstract this morning about GS grade levels and percentages. But let's talk about dollars. That GS-10 step 1 cap that exists right now is approximately $27; $27.36 I think is the GS-10 step 1 cap that is the problem. By raising the pay cap to 12 step 1, the overtime rate for most employees who are in the rest of the United States, not in locality pay areas, but for most employees that would rise to about $36 an hour, approximately a 30 percent increase for a GS-12 employee from the current cap. At higher grade levels it would be even higher. I know there's not that many GS-15 employees, but for a GS-15 employee who would not want to take on fire suppression duties because they would have to take, the overtime pay cap would be so low, it would actually jump to about, to $47 an hour or a 60 percent increase in the overtime pay cap. So there, our bill would result in large percentage increases in the overtime rate for people at the GS-12 through 15 pay level. I would like to point out that in Mr. Pombo's bill, with no limitation on grade level, a GS-15 senior employee who got straight time and a half, no cap, people have been referring to straight time and a half, the overtime rate for that employee would be over $77 an hour. That would be a 180 percent plus increase from their current cap. That's what happens to a senior employee where there is no pay cap, where it's true time and a half. And I think that it is unnecessary, certainly not consistent with pay practices in most parts of our economy in this country. Mr. Cummings. Thank you very much. Mr. Scarborough. Mr. Romero, I only have a couple more questions. My staff has been advised of the fact, as we heard Mr. Swartzlander him testify to this earlier, that even if the administration's bill is enacted, there's going to continue to be a pay disparity within the Federal wildland firefighter ranks. That is, it will continue to be routine for employees assigned to the wildland fire emergency command positions with significant responsibilities to receive lower overtime pay than personnel with much more limited experience and training. Do you agree with that assessment? Do you agree with Mr. Swartzlander's assessment? Do you agree with what we've been hearing from Mr. Pombo, Udall and other offices' assessment of the bill that you're supporting here? Mr. Romero. I can't address the relative skill levels of who the other cooperators might be. That's not my field. But I do know that in proposing our bill, we think we're addressing some of the concerns that have been raised about what causes that disincentive and what causes there to be lesser skilled people on the fire lines, a fact that some supervisors and higher grade people don't want to take on those duties, because the overtime pay cap keeps them from being attracted to that work. We think our bill helps with that part of the problem. I don't think I can address whether the skill levels, in comparison to the other cooperators in the fire suppression duties, would be changed by that. I think we're addressing, though, I think Mr. Swartzlander addressed the fact that there are retention problems, and newly trained people leave before they're able to be utilized by the Federal Government. I think that's a retention problem Government-wide. It's not an overtime pay cap issue, those folks are leaving. And that's something we have to address on a Government-wide basis. But I do know that in some comparisons that are made, we do it State by State. And I know in Mr. Pombo's bill, the reference is to what California State practices might be, but they differ from the practices in the State of Florida, which are lesser pay and straight time, not even time and a half, for FLSA exempt employees. So I'm just concerned that our responsibility at OPM isn't to look at all the pay practices, pick the ones that are the highest and use that as a benchmark for setting pay policy for the Federal Government. Mr. Scarborough. Congressman Pombo and Congressman Udall's bill at least can ensure that all wildland fire supervisors and managers are going to receive greater overtime pay than their subordinates while on a wildland fire. Can you make that same guarantee today before the committee, that the administration's bill can ensure that the supervisors and managers are going to receive greater overtime rate of pay than their subordinates? Mr. Romero. Yes, I can do that. Raising the pay cap means that, there are two provisions. First of all, no one is going to earn less money than their basic rate of pay. So if you have a GS-12 or GS-13 working overtime, their rate of pay is going to be what their GS-12 or GS-13 basic rate of pay was anyway, and if they're a supervisor, they will be earning more money than their subordinate, who would have been at a lower grade level. Mr. Scarborough. But isn't it true that if a GS-13 takes a non-exempt position that he's going to get paid more for taking that non-exempt position? I mean, he's going to get paid a higher rate of overtime pay than if he took an exempt supervisory position, correct? Mr. Romero. The non-exempt employee will get time and a half. The GS-13 employee will get either the basic rate of pay, depending on whichever is higher, either that basic rate of pay, or the overtime rate which will be capped at the 12 step 1 rate. So it's possible that for a higher graded GS-14 employee, and certainly the 15 level, that the rate of pay might be less than for an exempt employee at a very senior GS-12 level. So it's a situational situation, one on one. But in general, most, under our bill, most supervisors are going to earn more money than their subordinates. Mr. Scarborough. But not all, which was---- Mr. Romero. Not in 100 percent of the cases, no, sir. Mr. Scarborough. Which was the last question I asked you. Have you discussed this specific issue with the Department of Interior and the Forest Service? Because very interesting things happened throughout this process. They supported the Pombo-Udall approach, supported the bill, worked with them, have been working with us. And then we come up to the time when we're going to have a hearing and all of a sudden they disappear on us. And they aren't going to come testify. Have you had conversations with anybody? Mr. Romero. I have not had any conversations with anybody from the Department of Agriculture or Department of Interior. I don't know what kind of support or conversations they were having in the drafting of Mr. Pombo's bill. I would have loved to have had some of my colleagues from the executive branch share the privilege of being before the subcommittee this morning. Mr. Scarborough. But you're the lucky one, you're getting all the glory yourself. [Laughter.] Mr. Romero. The decision of the Department of Agriculture and Department of Interior to not be here this morning was made outside of OPM. I have no knowledge of what, you know. Mr. Scarborough. No knowledge of why they're not here? Mr. Romero. No, sir. Mr. Scarborough. First or second hand? You have no second hand knowledge? Mr. Romero. No. Mr. Scarborough. Mr. Cummings. Mr. Cummings. I don't have anything. Mr. Scarborough. OK. Let me ask you one more question on retirement, a little different subject. But under current law, law enforcement officers are not required to separate from service until they become 57 years old. But the maximum age for firefighters is 55. When the law was changed to raise the retirement age for Federal law enforcement officers from 55 to 57, do you know why that age wasn't raised for firefighters? Mr. Romero. No, Mr. Chairman, I don't know. When the Federal Employees Pay Comparability Act, when it was enacted in 1990, it provided for that new retirement age of 57 for law enforcement officers. The 55 retirement age for firefighters had been longstanding. And why it was not addressed in that piece of legislation, I don't know. The disparity exists today. I am aware that Congressman Gallegly had introduced a bill that would address this disparity. But we have not been asked, the administration has not been asked to comment on that bill. Mr. Scarborough. Is that something you'd support, getting rid of the disparity? Mr. Romero. I'm not familiar with the bill, so I'm not sure exactly what its provisions are. But---- Mr. Scarborough. What about the general concept? Mr. Romero. The general concept is that unless there is a valid reason for disparity, we would oppose having these disparities, we would like to look at Government-wide situations and ensure that there is consistency and uniformity, unless there are valid reasons for any difference. Mr. Scarborough. OK. Thank you, Mr. Romero. I appreciate your coming to testify. And I just have two unanimous consent requests. First of all, I ask unanimous consent that the statement of Bobby Harnage, national president of American Federal of Government Employees, be made part of the record. And without objection, that is so ordered. [The prepared statement of Mr. Harnage follows:] [GRAPHIC] [TIFF OMITTED] T4833.025 [GRAPHIC] [TIFF OMITTED] T4833.026 [GRAPHIC] [TIFF OMITTED] T4833.027 [GRAPHIC] [TIFF OMITTED] T4833.028 [GRAPHIC] [TIFF OMITTED] T4833.029 [GRAPHIC] [TIFF OMITTED] T4833.030 Mr. Scarborough. And I also ask unanimous consent that several statements submitted in July by various firefighters be entered into the record. The minority has been given copies. And without objection, they are so ordered. Thank you for testifying. I'd like to thank everybody in all the panels, and thank you all for coming and listening to this very important issue. We are adjourned. 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