LAUSD'S FALSE TEACHER OVERPAYMENT CLAIMS CLEARLY VIOLATES PROVISION OF COLLECTIVE BARGAINING AGREEMENT

Ron Lapekas.jpg

In its incessant war against high seniority teachers, whose only crime is that they were at the top of the salary scale, the Los Angeles Unified School District (LAUSD) administration has now been bringing bad faith claims of teacher overpayment simply because they know that most teachers lack the financial wherewithal to contest these bogus claims and that their union United Teachers Los Angeles (UTLA) has made it abundantly clear that it will do nothing to aid these retired and fired teachers even though these bogus claims for overpayment are alleged to have occurred when these teachers will still UTLA dues paying employees of LAUSD.

Even though the only document that is controlling in determining how much a teacher should be paid is the Collective Bargaining Agreement (CBA), which LAUSD has ignored, while making up out of the whole cloth an hourly and daily rate of compensation that in no way reflects the CBA.

But even if there was some justiciable dispute regarding alleged teacher overpayment, it is NOT an exception to the requirement to exhaust all administrative remedies before going into Superior Court as LAUSD has incorrectly and purposeful done because:

(a) UTLA and LAUSD are parties to, and bound by the terms of, a collective bargaining agreement;
(b) teachers are UTLA members who are only bound by the terms of the CBA and not some solely determined interpretation arrived at on its own by LAUSD;
(c) compensation is a topic specifically within the jurisdiction of the Public Employment Relations Board (PERB) and not Superior Court until all administrative law remedies are exhausted;
(d) this dispute involves interpreting the terms of the CBA because the CBA states teachers are paid an annual "salary", not an "hourly" wage as LAUSD has fabricated on its own in order to advance this bogus claim of teacher overpayment;
(e) even if LAUSD could arguably try to collect overpayments based on its "calculations", the calculations involve interpretation of the CBA- an additional reason why the issues must first be submitted to PERB and not Superior Court;
(f) the CBA has a "3-year" limitation on recovery of overpayment and a large number of the LAUSD bogus assertions of overpayment are way over this limitation; and,
(g) in asserting claims of overpayment against teachers, the District NEVER produces any ADMISSIBLE EVIDENCE to show which days were worked, the number of hours worked, etc. Think about this - the CBA imposes a MINIMUM of 6 on-site hours per day and explicitly states that teachers are expected to work more than 6 hours per day. Furthermore, although teachers are required to sign in, the purpose is to record attendance (and, of course, to build a discipline file). However, the CBA does not require teachers to keep a record of every minute they spend doing school work outside the classroom. Furthermore, it is relevant that there is no language in the CBA suggesting or requiring teachers to account for every hour they work -- that is the purpose of being paid an annual and not an hourly salary, which is clearly the case under the CBA regarding teacher compensation.

In discussing this matter with attorney Ron Lapekas:

Ron Lapekas, esq.

TeacherLawLA@yahoo.com

(213) 342-8560

who is representing a significant number of teachers who LAUSD is unjustifiably seeking restitution for in its false allegations of overpayment, LAUSD alleges it has calculated an "overpayment." Again, the only "evidence" provided to attorney Ron Lapekas or any of the teachers LAUSD is seeking money from is a simple allegation in the form of printout with no proof of the overpayment claims. This is so even when Lapekas asked for detailed evidence.

But the District appears to believe that it only needs to divide the annual salary payable under the CBA by the number of "contract hours"- it has calculated on its own and outside negotiations under CBA- by multiplying the number of attendance days by 8. However, as every teacher knows, they do not work an 8 hour a day / 5 day a week assignment. LAUSD intends and demands that teachers spend countless hours meeting parents after school, making phone calls, grading papers at home, and engaging in other LAUSD duties on weekends, holidays, etc.

Unless these hours are also considered, it is mathematically impossible to calculate an exact number of work hours because LAUSD not only does not include even an estimate of these hours, but also LAUSD doesn't ask for the information from teachers as to how many additional hours outside of formal school time teachers spend working.

Indeed, flipping LAUSD's argument upside down, if the district were to include all the hours in excess of 8 per day and all hours worked on days when attendance was neither required nor monitored, It is a statistical certainty that almost all teachers will work more than 40 hours a week. If so, then the "overpayments" would, in fact, result in a calculation showing that all such teachers were significantly "underpaid."

The situation would be much clearer if teachers were not "exempt" under the overtime laws. However, the fact teachers can't sue for time and a half for all hours over 8 per day and 40 per week does not mean that these hours don't constitute unpaid overtime. Therefore, from an equity position, LAUSD -- as the party asserting overpayment -- has the burden to produce evidence to prove that its calculations are correct under the CBA. However, Lapekas believes LAUSD must also produce evidence to show that the teacher NEVER worked more than 8 hours per day or more than 40 hours per week.

And again..and by the way...where is (WAS?) UTLA on this subject? Did it file a petition with PERB? Since these "overpay" lawsuits have been filed against several hundred teachers based on compensation issues that arose DURING their employment by LAUSD, where UTLA was and remains the exclusive collective bargaining representation, UTLA's flimsy and clearly erroneous position has been that these teachers targeted by LAUSD for overpayment are "former" UTLA members that they are not required to defend. As they will undoubtedly find out in the not so distant future, nothing could be further from the truth...or their real legal obligation. Until that time, a still active member of UTLA might formally ask UTLA administration what they have to do to protect themselves from this kind of bad faith lawsuit after he/she retires? The answer...or lack of same...should be enlightening and speak volumes.

16

09 2016

1 Comment

I can think of several reasons why I could disqualify myself from commenting on this. Main one might be that I'm one of those former teachers being dogged by these over payment claims. So maybe my view is slanted. Another is that I've read almost all of these arguments which rightfully annihilate such claims so many times that, again, I might be slanted in my view. But I'm about to say something anyway. LAUSD is running a racket here because they're racketeers. UTLA is nothing more than part of the mob for letting it go by without ever asserting its rightful and mandatory role in challenging and exposing it for what it is. Both entities should be facing criminal charges which carry enormous fines, substantial jail time and hefty remuneration to anyone they've alleged they overpaid with the tacit cooperation of the union. What's said here is true. This should be in PERB. At least we would know if that's been corrupted too. In the meantime, the district has managed to drag it into superior court and small claims skipping over PERB like it doesn't exist. If you wonder how this could be, look no further than the Stanley Most Courthouse where one magistrate after another has turned his head to blatant racketeering. Until this is either forced into PERB or judges are made to uphold justice, it won't change. But neither courts nor media are apparently interested in seeing justice done. After recently forwarding the Lapekas cross complaint to an investigative reporter for the local affiliate of major television network, I was asked,"What if the district is right? Do they deserve to be paid?" How could anyone ask that question after reading the cross complaint much of which is contained in this article? Is the district that powerful? What happened to justice? Do the district or the courts exist for our benefit or we at their disposal? Have they forgotten who pays them?

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