A group of anonymous City Council staffers is considering suing the City of San Antonio for possible violations of employment laws.
An email sent to City officials on Oct. 29 by the group’s attorney, Javier Espinoza, says the City – and potentially City Council members – violated several provisions of the Fair Labor Standards Act (FLSA) by misclassifying Council aides as contract workers. Therefore they could be liable for financial damages to current and previous staff members, he said. Espinoza requested mediation sessions to discuss the issue in hopes of avoiding a lawsuit.
“[The group has] requested anonymity for now for fear of retaliation, however, based on your response to this letter, they will determine whether to publicly identify themselves and determine what actions to take,” Espinoza wrote in the email, obtained by an open records request.
Leslie Selig Byrd, an outside attorney representing the City, denied any “unlawful conduct” but agreed to discuss mediation, according to an email sent to Espinoza on Nov. 1.
Espinoza sent the letter to City Attorney Andy Segovia and copied each Council member because he believes each should hire independent attorneys as elected officials could be considered joint employers. Byrd insisted that Espinoza “cease and desist from any further communications to Council Members on this matter,” as required by state ethics rules.
“It is no secret that the City Attorney’s office represents Council members on matters directly related to their role as Council members,” Segovia told the Rivard Report.
City Council staff members, known as aides, are contracted by City Council members. They are not City employees and therefore do not receive the same pay and benefits including overtime. Because they perform comparable duties and follow similar rules as City employees, Espinoza argues, City Council aides should be classified as City employees.
The FLSA and subsequent Supreme Court cases outline what kind of worker should be classified as an employee versus a contractor. Employees typically work at the employer’s place of business and their employer provides the resources and tools needed to complete their work. Contractors typically provide their own tools. FLSA only applies to employees.
“Please do not interpret this letter as a threat, to the contrary, none of my clients wish to litigate the misclassification and FLSA violations at this time,” he wrote, “however, the time has come to recategorize these employees properly and to compensate them in a way that is [commensurate] with their contributions to the City of San Antonio in the same way other employees of the City are compensated.”
Click here to download Espinoza’s letter. He could not be reached for comment on Tuesday.
Meanwhile, an ad hoc committee comprised of four Council members is working with a third-party consultant to review how aides are compensated after more than $870,000 was allocated in the City’s 2020 budget to increase pay for the mayor and Council staff.
City Council is slated to review changes to aide compensation by February.
“Earlier this year, City Council, working with City staff, started a process to look at Council aide structure, pay, and job classification, so that Council can consider pay increases within the context of a fairly consistent approach to staffing,” Segovia said. “While we will not discuss the merits of the legal claims, we will continue on the course set out by the Council.”
The committee will compare aide and staff responsibilities and consider Council members’ general desire to “retain their independence and control over personnel decisions within their offices, with consideration of each district’s unique priorities,” Segovia said.
City employees do not take direction from City Council members; their boss is the city manager. Council is allowed seven full-time positions, but it’s up to Council members to decide if they want to split a contractor position into two part-time positions.
Councilman Roberto Treviño (D1), who led the current effort on Council to increase benefits for Council aides and sits on the committee, said it’s unlikely that aides will become City employees.
“The answer is not that simple,” he said, because Council staff should answer to the elected official – not city management.
Councilman John Courage (D9) and Councilwomen Ana Sandoval (D7) and Adriana Rocha Garcia (D4) also serve on the committee.
It’s a matter of finding the right policy structure that allows for both fair compensation and autonomy, Treviño said, likely through a quasi-governmental nonprofit or other entity.
“We have 50 plus attorneys with the City, a huge [human resources] department,” he said. “We can figure this out.”
While his letter focuses on finding a path forward, Espinoza also alluded to possible retroactive liability for previous Council aides, such as back pay for unpaid overtime.
“Ultimately, the goal of this discussion is to ensure fair compensation for these employees, without opening the floodgates of potential litigation to hundreds of current and former employees who have been misclassified due to the City’s improper classification structure,” he wrote.
Because of possible legal action, Treviño and other Council members declined to comment on Espinoza’s letter and deferred to the City Attorney’s office.