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74–833 PDF 2001

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

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

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

CONSTANCE A. MORELLA, Maryland

JOHN L. MICA, Florida

DAN MILLER, Florida

ELIJAH E. CUMMINGS, Maryland

ELEANOR HOLMES NORTON, Washington,

DC

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

(III)

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

(1)

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, nonsupervisory 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.

2

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:]

3

4

5

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

6

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.

7

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:]

8

9

10

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,

11

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:]

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15

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

16

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.

17

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 subVerDate 11-MAY-2000 10:49 Nov 15, 2001 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\74833.TXT HGOVREF1 PsN: HGOVREF1
18

committee, 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 cosponsor 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.

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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.

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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:]

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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

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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

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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

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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.

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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

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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.

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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.

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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,

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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:]

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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

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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

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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

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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

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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 Governmentwide. 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 nonexempt 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

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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.

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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:]

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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.

[Whereupon, at 11:55 a.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

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