Back Pay Withheld From Bus Drivers

School bus driver Santia Bennett stopped getting a paycheck from First Student March 13, and her unemployment insurance application is still pending.

After fighting for a contract amendment with Hamden that should allow it to pay its drivers for April, First Student kept Bennett waiting even longer, saying she cannot get back pay until the Department of Labor denies her unemployment claim.

Last week, after weeks of negotiations, the Hamden Board of Education finally approved the contract amendment with First Student. First Student had originally asked for $2.19 million for the period from March 13, when school closed due to the Covid-19 pandemic, to the end of the school year. Hamden negotiated the total down to $1.18 million, with the amendment effective starting April 1. Under the amendment, the company can bill the board monthly for employee salaries and certain other expenses for the period starting April 1.

The April 1 start date corresponded with when Gov. Ned Lamont issued an executive order directing boards of education to pay its bus contractors, though drivers were laid off March 13. The intent of the order was to allow companies to continue paying their employees.

On May 8, all employees at the Hamden yard got their first paycheck from First Student since March. It covered the week from April 27 until May 3. Many had managed to get unemployment insurance starting in March, and did not need back pay from First Student.

Some, however, have been trying unsuccessfully to get unemployment insurance for two months. Now First Student has told them they cannot get back pay for April until they have an actual denial notice from the Department of Labor.

Only a handful of drivers — six, according to one driver with knowledge of the payments — have been paid for the rest of April.

On May 7, two days after the BOE approved its contract amendment with First Student, Bennett got a call from the dispatcher at the Hamden yard. The dispatcher told her that she would be getting a check the next day. It would be for $333: one week of pay.

Bennett said she asked why she was not getting pay for all of April. ​“You negotiated a contract that allows you to pay back pay,” she recalled saying.

She said the company told her that she could not receive payment for April until she had a letter of denial showing she could not get unemployment benefits.

Bennett said she started the unemployment filing process on March 13, right after she was laid off. When she logs into the system now, it still shows ​“Code 108,” meaning the application is still being processed.

Bennett said she may not be able to get unemployment at all because she works two other jobs. She’s a part-time caretaker at a group home in Hamden; she also works part-time at a retail clothing store in Milford. Her group home job has given her some work, but otherwise she has had no income since March.

She may still get unemployment insurance, but she said she can’t wait any longer.

“I would rather [get back pay] than sit around and wait for a check that may or may not come,” she said.

With little income for two months, she has stopped paying rent. Though her landlord has been accommodating, she said, it still feels bad. ​“When I go get groceries, I feel like I’m slighting him because I haven’t paid rent,” she said. But what can she do? she asked. When the choice is between paying rent and buying food, you buy food.

Another employee who witnessed conversations regarding Bennett’s situation said that after Bennett hung up the phone, management caved and cut her a check for back pay. On Friday, she may become the seventh employee to get back pay, but not without putting up a fight. The other employee spoke on the condition of anonymity because employees are not supposed to speak to the press.

First Student’s corporate office did not respond to a request for comment for this article. Nor did Hamden Location Manager Anthony Pacheco.

Hamden Public Schools Chief Operating Officer Tom Ariola, who negotiated the contract amendment for the district, said it’s a company decision how much First Student pays its drivers. The contract with the board simply allows the company to bill the board for its expenses up to $1.18 million starting April 1, but does not require it to pay drivers for April. If First Student does not incur the full $1.18 million by paying back pay, then Hamden will owe it less.

“They Want You To Wait”

Bennett is not the only driver who has been unable to get unemployment insurance and can’t get back pay either. The Independent spoke with three employees who are in this situation. All said they had been told they needed to show a denial from the Department of Labor in order to get back pay.

The reasons various employees said they had heard for that policy differed. And some have received a denial but have been asked to try again.

“According to what I was told, they are protecting us from being penalized if we get paid by First Student and the Department of Labor,” said one employee, who spoke on the condition of anonymity for fear they would lose their job.

That was the same explanation Bennett said she had received. She said the location manager told her the company was trying to prevent its employees from being penalized for receiving both back pay and unemployment benefits.

Unlike Bennett, the other employee did not have a ​“Code 108” on their unemployment application. They have applied multiple times and have been rejected each time, receiving an actual letter of denial. They said it may be because they had already exhausted their normal unemployment benefits earlier in the year, though the federal stimulus allows laid-off employees in that situation an additional 13 weeks of benefits.

Even with multiple rejections, management told the employee they needed to keep trying before they can get back pay from First Student.

“They have decided that they want you to wait it out, knowing that we’ve had no income coming in for nearly two months. They want us to basically wait it out until if and when the Department of Labor decides to pay,” the employee said. They said they have managed to scrape by because their spouse still has a job, but that they have started relying on food pantries.

Attorney Eric Brown, a labor lawyer based in Farmington, said that if an employee is on unemployment insurance and then receives back pay, the employee must report it to the Department of Labor. The department then adjusts benefits accordingly, and may ask the employee to return past unemployment payments. If employees fail to report income, that could be considered fraud, but as long as employees accurately report everything, they should be safe.

While First Student management told some employees that the company is trying to protect them from penalties by not giving back pay and instead encouraging them to continue seeking unemployment insurance, the company gave different explanations to other drivers. It told at least one that they could get back pay and still get unemployment benefits.

Driver Scott Van Fleet also applied for unemployment insurance and was denied because of an error in his application. On May 8, he went to the office to pick up what he hoped would be a check for all of April. He, too, was told he needed to present a denial from the Department of Labor. But management did not say anything about protecting him from penalties, he said.

“They said no, no, don’t you want that extra $600 a week?” he recalled, referring to the extra $600 tacked onto state unemployment benefits by the CARES Act.

Management then helped him file his unemployment application again, he said, even though he told them he doesn’t want to get unemployment and just wants back pay. He said he asked how it would work for him to get paid going forward and also get unemployment insurance. Management did not give a clear answer, he said.

One employee who got back pay said management had told them they should still keep trying to get unemployment insurance because they might still be eligible for the $600 extra benefit, contradicting the concern management had told other employees about penalties for getting both.

Some drivers said management may have also encouraged employees to seek unemployment because they have the potential to make more money that way. One driver who successfully started getting unemployment benefits in March said he makes more money on unemployment than if First Student were paying him his base pay. Base pay for experienced drivers is $525 a week. The state’s regular unemployment benefits plus the extra $600 from the CARES Act brings the total for many experienced drivers on unemployment to around $800 a week.

First Student may be operating on a tighter budget in Hamden than it usually would because of the town’s tough negotiating. The company initially asked the town for $2.19 million, and got $1 million less than it asked for. The contract amendment allows the company to charge only up to 65 percent of the daily rate for regular transportation. It can only charge up to just under $300,000 for April (though about $500,000 for May).

The contract amendment also obligates the company to help Hamden with some food transportation for students who would normally get lunch at school. The company will also be helping with other transportation needs that arise.

“It is a company decision” how First Student pays its drivers, said Hamden Board of Education Chair Arturo Perez-Cabello. ​“We have great appreciation for the drivers. The district reached an agreement with First Student so that drivers who are already working or who returned to the payroll can be paid.”

Four Weeks In One Check

While some employees have been refused back pay, a handful of others, who also still have pending but as-of-yet-unsuccessful unemployment applications, did get paid for all of April.

Those employees had to put their names on a list before May 8, said one employee, or had had their names put on the list by someone else. The employee said that list had been posted on the First Student app, but that many drivers were not aware of it.

Indeed, most drivers who spoke with the Independent, including Bennett, knew nothing of the sign-up list.

When the drivers who had managed to get back pay did finally get their checks, all of the back pay was rolled into one check, and was accounted for as pay for just the week of April 27-May 3. It also did not include pay back to April 1 as the contract with Hamden allows, but rather to April 4.

Since the back pay had all been lumped into one payment, it put employees in a different tax bracket, meaning more than usual was withheld.

Brown said that employees will see a tax refund for the extra withholding in the end, though the refund won’t come until after employees file their taxes in 2021.

When employees asked if they could get the payment as separate checks to avoid the extra tax withholding, management said no, according to multiple employees.

A member of management supposedly told one employee that because four weeks of pay had been lumped into one week’s pay period, the employee could report it to unemployment as just one week of pay, according to two employees. Doing so, said Brown, might be considered fraud.

While some drivers, like Bennett, may continue to fight for back pay, all will continue to receive a weekly paycheck until the beginning of June when the school year ends. After that, they will face unemployment again, as they do every summer.