By John V. Berry, www.berrylegal.com
It is not uncommon for police departments across the United States to have pay issues. One of the most common pay issues that police and federal law enforcement officers face is the failure of police departments to pay overtime correctly under the Fair Labor Standards Act (FLSA) or similar state overtime provisions. The number of issues that an officer can face regarding such issues are practically endless and ever evolving. This article discusses some of the issues that police departments and law enforcement agencies have with respect to the correct payment of overtime. For police departments and other law enforcement employers, making a mistake in the payment of overtime or other calculations is a major risk and can, in some cases, cause double damages, the payment of attorneys fees and other damages. In some states, like Massachusetts, incorrect overtime payment has the potential to cause "treble" triple damages. Because each state overtime laws vary, this article will focus on the FLSA.
What is the FLSA?
The FLSA establishes minimum wage and overtime pay standards affecting full-time and part-time workers in the private sector and in Federal, State, and Local governments. The FLSA is far more complicated with respect to law enforcement officers. There are numerous types of FLSA issues that can rise to lawsuits for pay issues not properly handled. These can range from not paying overtime or compensatory time properly, to not paying for certain compensable activities. The FLSA can be enforced by officers in a number of forums, including the U.S. courts or, where appropriate, in arbitration.
Law Enforcement and the FLSA
Law enforcement personnel are employees who are empowered by federal, state or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; who have the power to arrest; and who have undergone training in law enforcement. 29 U.S.C. 207 (k) provides a partial exemption for employees in the law enforcement by requiring them to work 43 hours per week (not the standard 40) before overtime compensation is required to be paid. Law enforcement activities involve work directly and primarily concerned with patrol and control functions, executing the orders of a court, planning/conducting investigations related to violations of criminal laws.
The federal statute which governs this is 29 USC 207(k) provides as follows:
(k) Employment by public agency engaged in fire protection or law enforcement activities. No public agency shall be deemed to have violated subsection (a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if--
- (1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) [29 USCS § 213 note] in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or
- (2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. 207.
Police departments may pay some FLSA overtime benefits to officers with compensatory time, instead of overtime payments in certain circumstances. Compensatory time in lieu of payment for FLSA overtime must be paid at the the rate of time and one-half. A police department may limit the number of hours an officer may carry in their FLSA compensatory leave, in any amount up to 480 hours. However, police departments may not impose a "use it or lose it" system where time must be used of forfeited. However, police departments may require officers to "use accrued FLSA compensatory time, or may buy out FLSA compensatory time from officers. The scope of the law with respect to compensatory time remains subject to change. I expect that this area of law will be more fully clear in the next 5-10 years.
Examples of FLSA Cases for Law Enforcement:
1. Who Gets LEO Overtime
Court of Federal Claims held that federal air marshals were entitled to overtime compensation under the Fair Labor Standards Act for hours that they worked in excess of 43 hours per week. Federal Air Marshals v. U.S., 84 Fed. Cl. 585 (Fed. Cl. 2008).
Deputy U.S. Marshal who was employed by United States Marshals Service and who was assigned to court support section and providing security for day-to-day operation of working courtroom is not administrative employee exempt from overtime under FLSA; such position is classified as law enforcement officer as defined in 29 USC § 207(k), and plaintiff is subject to limitations set forth in § 207(k) regarding number of hours for which he would be entitled to overtime compensation. Roney v. United States, 790 F. Supp. 23 (D.C.D. 1992)
Employees working as firearms instructors for the Federal Law Enforcement Training Center (FLETC) were entitled to overtime pay under 29 U.S.C. 207 because they could not be considered as exempt employees when they did not meet regulatory requirements for teaching professionals. The court further held that the FLETC could not be considered educational establishment; instructors were not required to have any teaching experience to work at Center, did not participate significantly in teaching plans or programs offered, were not classified by Office of Personnel Management as education employees, and were not engaged in activity that imparted knowledge on participants. Astor v. United States, 79 Fed. Cl. 303 (Fed. Cl. 2007).
While there is nothing improper about state or local government employer adopting 29 U.S.C. 207 (k) framework in order to take advantage of statute's provisions, employer may not impose sham changes in its employment scheduling and compensation policies so as to evade FLSA. Ball v. City of Dodge City, 67 F.3d 897 (10th Cir. 1995).
2. Canine Officers
Pursuant to the FLSA, all time that is worked is considered to be compensable and must be paid. For officers who work as canine handlers, the time they spend at home or outside their scheduled work shift providing, caring or working with their for dogs is considered work time. Thus, canine handlers must be paid, often with overtime compensation, for time they spend caring for their dogs.
Time spent by police canine officers administering medications, feeding and training their dogs, and cleaning their kennels were compensable under the FLSA and must be paid as regular overtime. The court held this despite the fact that canine officers were paid an additional $1000 per year did not constitute an agreement between the parties. Lewallen v. Scott County, 724 F. Supp. 2d 893 (E.D. Tenn. 2010).
Federal Court of Claims held that DHS canine enforcement officers were owed up to 4 additional hours of compensation a week for time spent laundering towels and preparing training aids for contraband-sniffing dogs, but off-duty time spent grooming the dogs or practicing with firearms was not compensable. DHS was then held liable for double damages for willfully failing to compensate 60 customs officers for overtime. Bull v. United States, 68 Fed. Cl. 212 (Fed. Cl. 2005).
3. Roll Call Time
Police officers must, in most circumstances, be compensated for work activities that are performed before or after their work shifts when those activities are an integral and indispensable part of the principal work activities for which the person is employed. For police officers, time that is spent attending roll calls, maintaining law enforcement equipment, evaluating firearms, attending meetings, writing incident or other reports, are often considered to be an integral and indispensable part of the principal work activities and must be compensated with overtime.
Police detectives in Emporia successful in asserting overtime claims for lunch periods; liquidated (double) damages allowed. Armitage v. City of Emporia, 782 F.Supp. 537 (D. Kan. 1992).
4. Donning and Doffing
Donning and doffing cases have sought, with very limited success, to seek FLSA compensation for failing to compensate police officers for putting on uniforms and gear. Police officers typically have argued that the time spent donning and doffing the uniform and related gear was compensable.
An employer's requirement that pre-or post-shift activities take place at the workplace may indicate that the activities are integral and indispensable to an employee's duties. Alvarez v. IBP, 339 F.3d 894, 903 (9th Cir. 2003) (holding that that donning and doffing of protective gear in that case was integral and indispensable activities in part because they had to be performed at the workplace), aff'd, 546 U.S. 21 (2005). Other cases have held the opposite. Bamonte v. City of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (holding that donning and doffing of police uniforms were not integral and indispensable activities in that case because they were "not required by law, rule, the employer or the nature of the police officers' work to be performed at the employer's premises").
The U.S. Court of Appeals for the Second Circuit recently held that it was possible that donning and doffing of City Law Enforcement rangers' uniforms could be integral and indispensable to their principal work duties and compensable. Perez v. City of New York, 832 F.3d 120, 123 (2nd Cir. 2016). Under the right facts, a donning and doffing case in the future could have potential.
Law enforcement officers and their unions should be aware of FLSA issues that affect them and their compensation. Our law firm advises and represents law enforcement officers in FLSA matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here.