Judge dismisses lawsuit against DCS over unpaid overtime

A federal judge has dismissed a lawsuit filed by two Department of Child Services employees who claimed the state agency failed to pay them overtime.

In the lawsuit, Arlene Nunez and Veronica Martinez argued they were forced to work during their lunch hours, rarely got five hours of continuous sleep during on-call shifts and spent extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.

They filed a lawsuit against DCS last year in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they worked.

U.S. District Court Judge Jon DeGuilio dismissed that lawsuit earlier this month. He ruled Indiana has not waived its right to “sovereign immunity” under the 11th Amendment, meaning the state can’t be sued in federal court over the Fair Labor Standards Act unless it agrees to be sued.

“The safety of children is our number one priority, and we take every legal measure available to ensure Hoosier children are protected from abuse and neglect,” DCS spokesman James Wide said Wednesday. “We have and will continue to put the safety of children first.”

Attorney Adam Sedia, who represents Nunez and Martinez, said they are appealing the judge’s dismissal. He said his clients, who still work at DCS, told him the state agency has changed some of its policies, but he believes the employees should be compensated for DCS’ “past violations.”

“We feel that, if the suit proceeds, there are potentially hundreds of employees across the whole state that are affected by this,” Sedia said.

DCS still faces an unrelated lawsuit in Marion Superior Court.

The American Civil Liberties Union of Indiana filed a lawsuit in July on behalf of DCS family case manager Mary Price and all other family case managers employed by the agency. The lawsuit claims DCS’ failure to comply with Indiana law is making it “extremely difficult” for them to do their jobs and is putting children at risk.

Call Star reporter Marisa Kwiatkowski at (317) 444-6135. Follow her on Twitter at @IndyMarisaK.

UPDATE: Nunez and Martinez lost their appeal. The Seventh Circuit Court of Appeals affirmed the district court's decision to dismiss the case.