FIRST AMENDMENT AND OVERTIME ISSUES
FOR LAW ENFORCEMENT
PERSONNEL
THE FAIR LABOR STANDARDS ACT
The Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay
minimum wage and overtime compensation (under specific circumstances) to their
employees.
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 fire
fighters, rescue service, emergency medical service (EMS) and law enforcement personnel
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.
Various circumstances in which public employers are required to pay overtime (after a specific threshold is met)—and in which many public employers try to avoid paying overtime—are described below:
FEDERAL LAW ENFORCEMENT EMPLOYEES:
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
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. The U.S. Department of Labor regulations provide at 29
CFR ยง 785.19 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 police officer 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
The FLSA permits public employers to afford compensatory time ("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 a comp time in lieu of cash overtime policy
through agreements with individual employees. 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.
An employer must permit an employee to use his/her accrued comp time upon request unless
using it on a particular day would (in legal terms) "unduly disrupt the employer's operation."
An issue that will soon be decided by the U.S. Supreme Court is whether an employer can
force an employee to use accrued comp time.
EXCLUDING OFFICERS FROM THE OVERTIME PAY REQUIREMENT
Are PoliceOfficers Entitled to Overtime?
The FLSA generally requires that public employers pay time and one-half overtime to law
enforcement personnel when they work more than an average of 43 hours a week. However,
the FLSA also exempts certain classes of employees from this overtime pay requirement. A
public employer can determine that officers shall not be paid overtime if:
officers are paid on a salaried (rather than per hour) basis; and
the officers 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 officers are improperly being
denied overtime pay).
SPECIAL JOB CLASSIFICATIONS
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
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.
CANINE HANDLERS
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 travelling 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).
PRE-SHIFT AND POST-SHIFT ACTIVITIES
Must be Paid Overtime for Activities Such
as Lineups, Checking Out Firearms, Writing Reports...
Many public employees, aside from canine handlers, are entitled to be compensated for jobrelated
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 highly
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 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.
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.
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:
an employee's speech or comments must involve a matter of "public concern";
and
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.
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.
EXAMPLES OF FREEDOM OF SPEECH CASES
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 unionendorsed
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
EXAMPLES OF FREEDOM OF ASSOCIATION CASES
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.