Law Enforcement

Resources for Law Enforcement

McGillivary Steele Elkin LLP has been representing employees, agencies and unions in law enforcement for over 30 years. We are proud to fight on behalf of those who protect our citizens and enforce our laws and will continue to do so through fierce litigation, steadfast arbitration and expert mediation.

Through our decades of work with law enforcement agencies, we’ve seen many of the same wage and hour violations occur independently throughout the country. The most frequent violations that we have contested on behalf of law enforcement employees include

• Canine handlers not being paid for at-home care time and commuting time
• Being denied pay for pre-shift and post-shift activities such as lineups, checking out firearms, and writing reports
• Being misclassified as non-eligible to receive overtime pay based on rank, status, or duty assignments
• Not receiving overtime pay during meal periods in which you are confined to a particular location and are considered on-call
• Improperly calculating regular rate of pay
• Paying hour-for-hour compensatory time, when it should be comp time for work over 40 hours at one and one-half hours of comp time for each overtime hour worked.
• Late Payment of overtime wages of more than 35 days after the overtime was worked

McGillivary Steele Elkin LLP is the general counsel to the United States Capital Police Labor Committee and has represented officers in a wide variety of claims including those above. We also have significant experience co-counseling wage and hour cases for law enforcement agencies such as

• Fairfax Police
• Department of Homeland Security
• New York City Police Sergeants
• Park Police Sergeants
• Postal Police Officers Association
• DC Police Union
• Immigration and Customs Enforcement
• U.S. Border Patrol
• Hawaii Police

Below we have provided resources for more information about the pay and benefits laws applicable to law enforcement employees. This explanation is intended as an introduction and overview of some of the rights to which law enforcement employees are entitled. It is not intended to replace the detailed, case-specific analysis of a lawyer nor does it constitute legal advice.

If you have a question that is not answered in the resources below, or if you think you may be experiencing workplace pay, benefit or treatment violations, please email us at info@mselaborlaw.com

First Amendment And Overtime Issues For Law Enforcement Personnel – The Fair Labor Standards Act (FLSA)

Since the FLSA became applicable to state and local government employers in 1986 following a ruling by the U.S. Supreme Court, many public employers have attempted various ways to avoid paying overtime compensation (i.e., time and one-half pay) to law enforcement employees as the law requires. If an employer’s overtime pay practices are in violation of the FLSA, employees may file a lawsuit against the employer and obtain back pay (which may be doubled to include what is known as “liquidated damages”), reimbursement for attorneys’ fees, and litigation expenses.

Federal Law Enforcement Employees and the FLSA

Many different rules apply to federal public sector employees. Please check the Federal Employees page for special rules that apply to them.

On-Call Time – Payable In Certain Circumstances

In some jurisdictions, public safety employees are required to be on-call during times that they are not on duty at their normal work site. These on-call hours may be considered compensable hours of work (and payable at the overtime rate) if the restrictions placed on the employee during the on-call time prevent the employee from utilizing the time effectively for his/her own personal pursuits, and thus the time is regarded as being predominantly for the employer’s benefit. Factors that are considered in determining whether on-call time must be treated as compensable work hours include:

• the average number of emergency calls the employee responds to during the on-call period
• the time in which the employee has to be at the work site after being called in
• whether an employee is subject to discipline for missing or being late to a call-back
• the extent to which an employee is able to engage in other activities while on-call

Meal Time – Under What Circumstances Are On-Duty Meal Periods Compensable?

Law enforcement employees are often required to remain “on-call” prepared to answer calls during their scheduled meal periods. Federal regulations governing this issues state that an employee’s meal period is compensable unless the employee is completely relieved of duty. Some states have adopted this test as well.

Some courts, however, have adopted what is called the”predominant beneficiary test.”  Under this test, the courts determine whether the law enforcement employee or his or her employer is the predominant beneficiary of the meal time.

>In cases in which officers have been confined to a particular location and been on-call, the employer has been found to be liable for overtime pay for the officer’s meal time. In other cases, in which officers have been free to eat wherever they wish so long as they maintain radio contact with their employer, and they are only rarely interrupted with radio calls, the courts have ruled in favor of the employer.

Key factors that courts look at in these cases are:

• whether the officer is on-call during the meal period;
• how often he or she is called while on-call;
• whether there are any geographic restrictions during the meal period; and
• if so, how onerous are those restrictions, and the length of the meal period.

As you can see, the outcome of these cases is highly dependent on the individual factual circumstances involved. If an officer is on-call during a meal period and the employer places restrictions on the officer during that meal period, such as confining the officer to the employer’s premises, it is possible that a valid claim for overtime exists.

Receiving Compensatory Time In Lieu Of Cash For Overtime Hours – It Is Allowed Only In The Public Sector And Only If You Agree To It

Compensatory time as compensation for overtime work is not permitted in the private sector. However, under the FLSA, state and local governments are permitted to agree with their employees that overtime work would be rewarded with compensatory time off (“comp time”) in lieu of monetary payment.

The FLSA permits public employers to afford comp time to law enforcement personnel in lieu of cash overtime payments provided that the employees agree in advance to this compensation policy. In states that permit collective bargaining between employers and employee representatives, an agreement covering a group of employees may be reached through negotiations with the employees’ representative. In non-collective bargaining jurisdictions, an employer may institute comp time in lieu of cash overtime policy through agreements with individual employees.

Accrual of Comp Time

Comp time must accrue at the rate of not less than 1.5 hours for each hour of overtime work. Under current law, law enforcement personnel can work 320 overtime hours and thereby accrue a maximum of 480 hours of comp time (320 hours times 1.5) before overtime hours worked above this maximum must be compensated in cash. In states without collective bargaining, the Supreme Court has held that there is nothing in the FLSA prohibiting an employer from forcing employees to use accrued comp time. Of course, in most collective bargaining states, this would be a mandatory subject of bargaining

Conditions on Using or Cashing Out Comp Time

The FLSA requires that an employee who has accrued comp time be allowed to use that time off within a “reasonable period” after making a request if the use does not “unduly disrupt” the operations of the agency.

Reasonable Period

The meaning of the phrase “reasonable period” has been interpreted in two different ways by federal courts.

In one set of decisions, federal courts have held that employers must permit employees to use compensatory time within a “reasonable period” of time after the request is made, and not at a specific time requested by the employee. Courts have found that the use of a log book where employees must sign up before using accrued comp time does not violate the FLSA even though this practice resulted in police officers being denied comp time on occasion.

In contrast, another court has held that “reasonable period” means that a comp time request must be requested by an employee within a reasonable period of time of the date that the employee wishes to use it. This court found that the regulation regarding “reasonable period” defines when an employee must make a request to use comp time, rather than to define the period in which an employer must permit an employee to use comp time. The position is supported by the Department of Labor’s pronouncements on the subject.

Undue Disruptions

The regulations provide that determining whether granting the request would “unduly disrupt” the agency’s operations is based on such factors as:

• the normal schedule of work,
• anticipated peak workloads based on past experience,
• emergency requirements for staff and services, and
• &the availability of qualified substitute staff.

Courts have found that an employer cannot deny a timely compensatory leave request solely for financial reasons without a clear showing of undue disruption. Therefore, avoiding payment of overtime to substitute officers and avoiding calling substitute officers to work overtime do not constitute “undue disruptions” sufficient to deny the use of comp time.

Excluding Officers From The Overtime Pay Requirement – Are Police Officers Entitled To Overtime? Answer: Some Are And Some Are Not

Law Enforcement Employees Entitled to Overtime:

The FLSA generally requires that public employers pay time and one-half overtime to law enforcement employees when they work more than an average of 43 hours a week, if an employer has adopted and established a work period of between 7 and 28 days.

To determine if an employee is considered a law enforcement employee, courts analyze whether these employees are engaged in “law enforcement activities.” Employees engaged in law enforcement activities are those:

• who are uniformed or plain clothed officers with power to enforce public safety and criminal laws, including correctional institution security personnel;
• who have arrest powers; and
• who are, have been, or will be trained and instructed in physical training, self-defense, firearm proficiency, criminal and civil law principles, investigation and law enforcement techniques, community relations, medical aid, and ethics.

An employees rank, employment status, or duty assignment is not factored in when analyzing these activities.

Courts have found that in addition to police officers, sheriffs and deputy sheriffs, marshals and deputy marshals, constables and deputy constables, arson investigators, state troopers, and highway patrols, fish and game wardens, prosecution office criminal investigators, and others who meet these three requirements listed above are engaged in “law enforcement activities.”

Courts have found that elected officials, building and health inspectors, animal control workers, sanitation personnel, civil traffic control employees, parking attendants, wage and hour officers, equal opportunity investigators, tax compliance agents, building guards, or civilian support personnel such as dispatchers, radio operators, maintenance workers, and clerical, educational, or medical staff are not engaged in “law enforcement activities.”

Law Enforcement Employees Not Entitled to Overtime

The FLSA also exempts certain classes of law enforcement employees from this overtime pay requirement. Even if an employee is engaged in “law enforcement activities” described above, a public employer can determine that law enforcement employees will not be paid overtime if these law enforcement employees:

• are paid on a salaried (rather than hourly) basis; and
• perform primarily supervisory duties during their work time

The courts have established factual and legal standards that are applied to determine whether these two conditions are met (and therefore, whether employees are improperly being denied overtime pay).

Additionally, there is an FLSA exemption for law enforcement employees in a small department. Under the small department exemption, a public employer is exempt from the requirements of the FLSA for any employee in law enforcement activities if the public agency employs during the workweek less than 5 employees in law enforcement activities.

In counting the number of employees engaged in law enforcement activities, full- and part-time employees are treated the same, as are employees who are on duty and employees who are on leave. Volunteers and elected officials are not counted as employees. In addition, all employees of the department are counted, not just those who are engaged in law enforcement activities. For example, a police chief would count as an employee for purposes of this exemption even though it is likely that he or she would be considered exempt from the FLSA because he or she is salaried and performing primarily supervisory duties as described above.

Finally, the FLSA provides an exemption for “special detail work” by law enforcement employees of public agencies so that the hours spent on special details need not be combined with an employee’s other work hours for purposes of calculating their overtime compensation. For this partial overtime exemption to apply, the employment must be:

• solely at the individual’s option, the individual must agree to be employed on a special detail by a separate and independent employer in fire protection, law enforcement or related activities;
• and the public agency must:

• require that its employees be hired by a separate and independent employer to perform the special detail;
• facilitate the employment of such employees by a separate and independent employer; or
• otherwise affect the condition of employment of such employees by a separate and independent employer

Courts have found that the primary employer may maintain a roster of employees who wish to volunteer for the work, and it may select the employees who will work, negotiate their pay, and retain a fee for administrative expenses. The primary employer may even require the employees to observe its standards of conduct while working for the separate, outside employer.

Special Job Classifications

A. Arson Investigators

Fire (arson) investigators in a public fire department whose job is to investigate possible arson following a fire may not be grouped with fire fighters for overtime pay purposes, and therefore, pubic employers cannot decide that they will pay overtime to these employees only after they have worked 53 hours in a week. Arson investigators are entitled to overtime compensation after they have worked either 40 or 43 hours in a week, depending on whether their job responsibilities include certain law enforcement functions (e.g., whether or not they have the authority to make arrests).

B. Dispatchers

Employees who perform an emergency communications role dispatching public safety personnel and equipment to fire, crime and accident scenes and who are not assigned (or rotated) into law enforcement or fire protection (i.e., fire suppression or prevention) functions must be paid overtime according to the 40-hour workweek standard rather than the higher thresholds permitted for police and fire fighters.

C. “Public Safety Officers” Engaged in Fire Protection and Law Enforcement Activities

Some public employers have employees, often called “public safety officers,” who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. As described in the section on fire fighters, the FLSA establishes a different overtime threshold for employees engaged in fire protection activities. In this situation, the employee will be considered to be engaged in whichever activity during the work period that takes up the majority of his or her time.

D. Canine Handlers – Must be Paid Overtime for At-Home Care Time

Time spent outside the normal shift caring for dogs by law enforcement officers assigned to canine units is considered to be compensable work time under the FLSA. Thus, public employers must compensate canine handlers (usually at overtime rates) for time actually spent on off-duty hours attending to the dog entrusted to their care. Compensable activities include feeding, walking, grooming, training and taking the dog to the veterinarian. In addition, time spent traveling with the dog to and from work may be compensable depending on the specific facts and circumstances involved (some courts have required the employer to compensate the employee for the entire commuting time each day, while other courts have articulated a more restrictive rule regarding travel to and from work with the dog).

E. Trainees

Time spent in mandatory training in law enforcement or similar activities – for example, time spent at police academy – is counted as time spent performing law enforcement activities so long as:

• The trainees are uniformed or plain clothed officers with power to enforce public safety and criminal laws, including correctional institution security personnel; and
• The trainees have been, or will be trained and instructed in physical training, self-defense, firearm proficiency, criminal and civil law principles, investigation and law enforcement techniques, community relations, medical aid, and ethics.

If this test is met, then basic training or advanced training is considered incidental to, and part of, the employee’s law enforcement activities.

Federal Law Enforcement Employees and the FLSA

Many different rules apply to federal public sector employees. Please check the Federal Employees page for special rules that apply to them.

Pre-Shift And Post-Shift Activities – Must Be Paid Overtime For Activities Such As Lineups, Checking Out Firearms, Writing Reports…

Many public employees are entitled to be compensated for job-related duties that they perform either before or after their regular work shifts. The general rule is that an employee must be compensated for activities performed either before or after the regular work shift if those activities are an integral and indispensable part of the principal work activities for which the person is employed. Whether pre-shift or post-shift activities are considered an integral and indispensable part of the principal work activities is dependent upon the specific facts of each case. In deciding a particular case, courts will analyze whether the activities in question are necessary to the job and performed, at least in part, for the benefit of the employer (compensable time) or, conversely, are performed for the employee’s convenience (non-compensable time). Therefore, in many cases, public safety employees are entitled to be compensated for such activities undertaken outside their regular shift such as cleaning firearms, checking firearms in and out, inspecting and repairing equipment, attending a lineup or briefing, or writing reports.

Significantly, once an employee engages in a compensable work activity, the time spent after that activity constitutes compensable work time. This is called the continuous work day theory which the Supreme Court adopted in 2005 in a case entitled Alvarez v. IBP. Thus, if an officer puts on a bulletproof vest or picks up a piece of equipment, his or her workday has begun and time spent after that such as traveling to roll call or the squad car must be counted as worktime.

First Amendment Rights Of Public Employees

Among our most cherished rights are the right to speak freely on matters of public concern, and the right to associate with whom we choose. These rights to freedom of speech and freedom of association are protected by the First Amendment to the United States Constitution. Although there is no “right” or “entitlement” to government employment, public employers can not fire, refuse to hire, or otherwise discriminate against an individual based on his or her exercise of First Amendment rights.

The First Amendment provides an important check on the ability of public employers to discipline or otherwise discriminate against a public employee. Click on the appropriate subject that interests you regarding the First Amendment:

• Freedom of Speech
• Freedom of Association
• Remedies

Freedom of Speech

Under the First Amendment, individuals have the right to speak out on matters of public concern without having government employers retaliate against them for the exercise of free speech. In the employment context, to be protected, there are two basic requirements:

1. An employee’s speech or comments must involve a matter of public concern; and

2. The employee’s interest in speaking on the matter of public concern must not be outweighed by the employer’s interest “in promoting the efficiency of public services.”

In addition, the employee must prove that the protected speech was a substantial or motivating factor in the adverse employment decision. Another way to say this is that the employee’s protected speech must have been a reason that moved the public employer towards its decision. Further, the employer can escape liability if it can prove that it would have made the same decision even in the absence of the employee’s protected speech activities.

In 2006, the United States Supreme Court placed an additional limitation, beyond the two just discussed, on what constitutes protected speech under the First Amendment. In that case, the Supreme Court held that when public employees make statements “pursuant to their official duties,” their speech is not protected under the First Amendment, so they can be disciplined for their statements. This means that a public employee’s statements are not necessarily protected when they are made in the process of completing a work duty. For example, a public employee who is responsible for making comments to the press and the public as spokesperson for a fire department (such as a Public Information Officer) is not necessarily protected under the First Amendment from discipline for statements made while performing those duties.

MATTERS OF PUBLIC CONCERN

Matters of public concern are issues that concern the public at large versus issues that only affect an individual employee. Speech on matters of “public concern” is speech that can be “fairly considered as relating to any matter of political, social or other concern to the community.” Courts have routinely found that issues regarding public safety (including staffing, response time, and equipment for emergency services), discrimination, public budgets, taxation, and fraud are matters of public concern. Conversely, courts have found that issues are not matters of public concern if they only concern such things as whether an individual employee was properly disciplined for non-speech reasons, personality disputes among employees, or other complaints regarding working conditions that only affect the complaining employee.

WEIGHING THE HARM

Once it is determined that the employee’s speech is on a matter of “public concern,” the employee’s interest, as a citizen, in making the speech must be weighed against the harm, if any, to the employer’s efficient and effective operations. Where the employee’s interest is strong, such as political speech or speech raising a serious issue of public safety, it will be very difficult for the employer to “win” this balancing test. As one court said with respect to speech concerning cuts to emergency services, “it is hard to imagine any combination of government interests sufficient to outweigh [the employee’s] interest in informing the public about policies he believed were dangerous to the City’s citizens.”

In this regard, the courts often look to whether the an injury or disruption of the workplace affecting the public employer’s ability to provide its services occurred, or is likely to occur. Moreover, employers may not single out a particular employee or particular type of speech for punishment. If an employee or particular type of speech is being singled out, the courts usually strike down the speech based restrictions as unconstitutional.

Freedom of Speech Cases

Set forth below are a few examples of First Amendment freedom of speech cases that employees have successfully pursued:

• In Texas, a fire fighter was discharged for speaking to the media following a routine fire in which a fire fighter died of a heart attack, and another fell from a ladder, sustaining serious injury. The fire fighter, who was president of the local fire fighters union, informed the press that recent budget cuts and staffing reductions may have played a part in the incidents. The Court found the fire fighters’ statements to the media constituted speech on a matter of public concern, protected under the First Amendment. The fire fighter was reinstated with back pay, benefits, and payment of his attorneys’ fees and costs.
• In Missouri, a fire fighter was discharged after publicly announcing the local union’s endorsement of a local fire district board candidate at a political meeting. The union-endorsed candidate was running against a long time incumbent, who had the support of the fire chief and his fellow fire board members. Although the Fire Department claimed the fire fighter was fired due to abuse of sick leave, the jury concluded that this was a false reason given by the Fire Department to disguise its true motive of punishing the employee for engaging in protected political speech. The jury awarded the fire fighter substantial damages, including back pay, compensatory damages for pain and suffering, and attorneys’ fees and costs. In addition, the fire district was ordered by the court to reinstate the fire fighter.
• In a case involving a state highway patrol, a state trooper was disciplined for allegedly withholding information regarding missing property. At trial, the court found that the true reason for the trooper’s discipline was that the trooper had endorsed a candidate for patrol superintendent who was opposed by the trooper’s superior. In balancing the employee’s interest in free speech against the employer’s interest in the efficiency of the service, the court ruled in favor of the trooper because the highway patrol could not show that an injury or disruption of the workplace was or would be the result of such protected speech.
• In a Tennessee case, a fire department prohibited any literature at the workplace that mentioned “unions” or “labor organizations.” The Department did allow fire fighters to read other magazines and books to the workplace, including adult magazines such as Playboy. The prohibition solely related to union material. The court struck down this rule finding that it was an invalid content based restriction on speech that was unnecessary to promote the efficiency of the department’s service to citizens. This case also demonstrates that a public employer may not discriminate against certain types of speech based on the employer’s opposition to, or disagreement with, the content of the speech.
• In a South Carolina case, several fire fighters were not hired after their department was merged into another City’s fire department. The fire fighters had been active in the union and had publicly commented on City related issues in the past. The fire fighters won a jury trial in which the court found that the City had violated the fire fighters’ First Amendment rights.

Freedom of Association

Public sector employers (state, local and federal government employees) may not take adverse actions against employees based on the groups with which the employees associate, such as labor associations, political organizations, and civic groups. This right is not absolute, however. For example, a police detective may not be able to associate with known organized crime figures, or associate with a motorcycle gang that the City is investigating. In evaluating ‘free association’ claims, courts must balance the employee’s First Amendment interest in belonging or associating with a group against the employer’s interest “in promoting the efficiency of public services.” It is rare for an employer to be able to justify restrictions based on an employee’s right of association.

In addition, the employee must prove that the protected associational activity or membership was a “substantial” or “motivating” factor in the adverse employment decision. Another way to say this is that the employee’s protected association must have been a reason that moved the public employer towards its decision. Further, the employer can escape liability if it can prove that it would have made the same decision even in the absence of the employee’s protected activities.

In attempting to justify a restriction on speech or freedom of association, the employer must offer more than mere speculation or conjecture; rather the courts will look to whether an injury or disruption of the workplace affecting the public employer’s ability to provide its services occurred, or is likely to occur

Freedom of Association Cases

Set forth below are a few examples of First Amendment freedom of association cases that employees have successfully pursued:

• In Colorado, a fire fighter was elected president of a newly formed IAFF local union. As part of those duties, the local president conducted meetings, issued a press release on the reasons for forming the union, and the benefits to the fire department and community, and spoke with the Fire Chief to inform the Fire Chief that the union had been formed, and the benefits that could result from it. Shortly thereafter, the Fire Chief terminated the local union president, allegedly for writing on a flyer announcing the closure of certain racquet ball courts. The federal court jury concluded, however, that the local union president’s associational activities on behalf of the newly formed union were a substantial motivating factor in the decision to terminate the fire fighter. The Jury awarded back pay and significant compensatory damages to the fire fighter, and the Court ordered the fire fighter’s reinstatement.

• In a fire department there were two IAFF local unions – one for the officers and one for the rank and file. The City ordered the employees in the officers’ local to withdraw their affiliation with the International union, claiming that it created a conflict of interest for the officers to affiliate with the same union in which their subordinates were members. A federal court struck down this restriction finding that there was no rational basis for the City’s fears.

• In a case involving the District of Columbia’s attempt to restrict the association rights of police officers who were trying to organize a union, the court held that a District of Columbia Code provision, which forbade membership by D.C. police officers in a union that was affiliated with any union that asserted the right to strike, was unconstitutional. The City argued that the restrictions against affiliations were necessary “to insure a smoothly running, fair and impartial police force.” The City suggested that a police officer’s union sympathies would interfere with his ability to respond to labor disputes. The Court rejected the City’s arguments and struck down the Ordinance as an impermissible restriction of freedom of association.

• In a case involving fire fighters’ attempts to become affiliated with an international union, the court declared a North Carolina statute that prohibited fire fighters from becoming members of a labor organization that is affiliated with a national or international labor organization, to be unconstitutionally overbroad. The court held that:

It matters not . . . whether the firemen of the City of Charlotte meet under the auspices of the intervenor, a national labor union, but whether their proposed concerted action, if any, endangers valid state interests. We think there is no valid state interest in denying firemen the right to organize a labor union — whether local or national in scope.

• In a similar case involving police officers, a court struck down a regulation that prohibited police officers from joining or maintaining membership in any labor organization whose membership was not exclusively limited to full-time law enforcement officers. The City attempted to justify the regulation on the grounds that a police officer must appear to be impartial and neutral in the handling of labor disputes. The Court concluded that the City’s asserted interest did not outweigh the First Amendment rights of the police officers to join a labor organization of their own choosing.

Remedies

Employees who successfully pursue First Amendment cases are eligible to recover the following types of remedies:

• Declaratory relief such as a court’s ruling that a statute or ordinance is unconstitutional;
• Injunctive relief such as an order that the employee be returned to work;
• Actual damages such as lost wages and benefits;
• Compensatory damages, such as pain and suffering caused by the employer’s misconduct;
• In extreme cases, punitive damages to punish the public officials who violated the employee’s rights; and
• Attorneys’ fees and costs incurred in pursuing the case.