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Employment & Labor Law for Public Safety Agencies
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Moonlighting (Secondary Employment)
Monthly
Law Journal Article: Regulation of an Employee's
Off-Duty Activities. Part One - Secondary Employment (Moonlighting), 2007
(12) AELE Mo. L. J. 201.
Monthly Law Journal Article: Regulation
of an Employee's Off-Duty Activities Part Two - Secondary Employment
(Moonlighting) - Special Issues, 2008 (1) AELE Mo. L. J. 201.
A company offered private security and traffic control services, with most of its employees being sworn law enforcement officers also employed by law enforcement entities. Non-sworn employees may have no law enforcement background. The company offered assignments to workers who meet the qualifications specified by the customer. They can choose to reject a job but might not receive future assignments if they decline. The company sometimes provides employees with equipment, but they pay for other equipment and must own police-style vehicles. The cost of the non-sworn workers’ investments is roughly $3,000-$5,000. On the job, workers follow the customer’s instructions, comply with the company’s standard policies, and occasionally submit to the supervision of other employees. Sworn police officers wear their official police uniforms, while non-sworn workers wear uniforms with company-branded patches. Employees send the company an invoice to be paid an hourly wage, and all sign “independent contractor agreements,” including non-compete clauses. The company has never paid overtime wages. The U.S. Department of Labor sued under the Fair Labor Standards Act, 29 U.S.C. 207(a)(1). The trial court concluded that the company’s non-sworn workers were employees entitled to overtime wages but that sworn officers were independent contractors because they “simply were not economically dependent” on the company.” A federal appeals court reversed in part, ruling that all of the workers were employees. The court noted the length and consistency of the relationship between the company and its workers, the fact that all of the workers earned set wages to perform low-skilled jobs for fixed periods, and that the officers were an integral part of the company’s business. Acosta v. Off Duty Police Services, Inc., #17-6071, 2019 U.S. App. Lexis 4190, 2019 Fed. App. 0019P (6th Cir.).
An
intermediate Illinois appeals court upheld the decisions of a Sheriff's Merit
Board terminating or suspending seven correctional officers for prohibited moonlighting.
They each had engaged in unauthorized work as security guards in businesses
engaged in the sale of alcohol. These actions violated departmental general
orders and regulations and the plaintiffs failed to seek permission through
submitting a request form. Further, one made false statements and another
violated a rule requiring him to report, within a year, an accusation that he
had assaulted a business patron and stolen from him. The court reduced
penalties against two officers, however, as disproportionate. Roman v. Cook
County Sheriff's Merit Board, #1-12-3308, 2014 IL App (1st) 123308, 2014 Ill.
App. Lexis 554.
Affirming a
lower court holding, the Third Circuit upholds a New Jersey law banning state
troopers from engaging in the practice of law. State Troopers Non-Commissioned
Officers Assn. v. State of New Jersey, #09-3296, 2010 U.S. App. Lexis 22735
(Unpub. 3rd Cir.).
Arbitrator finds that management unfairly denied
an officer the right to work secondary employment while he was on FMLA leave
due to the birth of a child. The city had no policy against moonlighting while
taking family leave. City of Warrensville Heights and Ohio PBA, 126 LA (BNA)
1313, FMCS Case #09/54968 (Lalka, 2009).
Federal court concludes that off-duty state troopers
lack a constitutional right to practice law. State Troopers Non-Commissioned
Officers Assn. v. State of New Jersey, #3:08-cv-5326, 2009 U.S. Dist.
Lexis 58492, 29 IER Cases (BNA) 703 (D.N.J.).
Eleventh Circuit
upholds the firing of three Florida deputy sheriffs for engaging in sexually
explicit conduct, available for "pay-per-view" on the Internet, and
without obtaining approval for off-duty employment. Thaeter v. Palm Beach
County Sheriff's Office, #03-13177, 2006 U.S. App. Lexis 13308 (11th Cir.
2006). [2006 FP Aug]
Arbitrator holds that a state agency had just
cause to discipline an employee for violating a prohibition on outside
employment. However, the suspension was reduced from 10 to 3 days, because a
former supervisor had given him permission to do moonlighting in the past, and
this contributed to employee's conduct. State of Ohio Bur. of Workers Comp. and
Ohio Civil Serv. Employees Assn. AFSCME L-11, 119 LA (BNA) 1121 (Murphy, 2004).
{N/R}
Arbitrator overturns a chief's ban on
outside employment as a private investigator. Previously, the grievant had been
allowed to perform that work and the bargaining agreement contained a past
practice clause. City of Columbus and FOP L-9, FMCS Case #01/07379, 116 LA
(BNA) 1672 (Duff, 2002). [2002 FP Sep]
Third Circuit affirms injunction against a police
chief who required subordinates to obtain his approval before appearing as an
expert witness in civil or criminal cases, even if uncompensated. Swartzwelder
v. McNeilly, #01-1085, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002). [2002 FP
Sep]
Illinois appellate court affirms the suspension
of a police officer for a year who failed to inform his superiors about
criminal activity of an alderman, who was his client in his off-duty private
law practice. Police general order 89-8 specifically prohibits engaging in
secondary employment which "would result at any time in a conflict of
interest" and prevents police officers who are attorneys from representing
individuals who are targets of criminal investigations. Holden v. Police Bd. of
Chicago, #1-00-1117, 2001 Ill. App. Lexis 618. {N/R}
Appellate court sustains a 12-month suspension of
a police officer who refused to answer pertinent questions because they were
learned in his capacity as a private attorney. Public employees are not free to
accept outside work that conflicts with their occupational obligations. Holden
v. Police Bd. of Chicago, #1-00-1117, 55 N.E.2d 67, 2001 Ill. App. Lexis 618.
[2001 FP 170]
A deputy sheriff who worked as a private security
officer for a residential community, could be fired from his security job for
leaving the property, though it was at sheriff's request. Thompson v. Cherokee
Water Co., 6 S.W.3d 343, 1999 Tex. App. Lexis 8292. {N/R)
Appellate court sustains an arbitration award of
lost wages from outside employment where the denial of off-duty employment for
disciplinary reasons was overturned. Leis v. L-100 Teamsters, #C-981011, 1999
Ohio App. Lexis 4982, 162 LRRM (BNA) 3084. [2000 FP 42]
Police chief could regulate off-duty employment
and the rules did not require prior approval by the County Council. Howard Co.
Police Ofcrs. Assn. v. Howard Co., #98-1236, 126 Md. App. 319, 728 A.2d 795,
1999 Md. App. Lexis 93. [1999 FP 134]
Ohio appeals court holds a city responsible for
compensating an off-duty officer who was injured while arresting a shoplifter,
even though the claimant was not in uniform, was paid as a part-time security
guard, the outside employment activity was not approved, and the city required
moonlighting officers or their employers to carry their own insurance. Cooper
v, Dayton, 696 N.E.2d 640, 120 Ohio App.3d 34, 1997 Ohio App. Lexis 2495; cert.
den., 1997 Ohio Lexis 2848. [1999 FP 110]
Police chief lacked a legitimate interest in
preventing a police officer from conducting a concealed weapon handgun safety
course for the public while off-duty. Police chief was not entitled to
qualified immunity for violating the officer's First Amendment rights. Edwards
v. Goldsboro, 178 F.3d 231, 15 IER Cases (BNA) 333, 1999 U.S. App. Lexis 9088
(4th Cir.). {N/R}
Appellate court invalidates a police department
rule that had not been adopted by the County Council. FOP L-35 v. Mehrling, 343
Md. 155, 680 A.2d 1052 (1996). {N/R}
Officer was required to grieve and seek
arbitration when his request for off-duty employment was denied. The bargaining
agreement provided a remedy (arbitration) and the dispute could not be
litigated in court. McKenna v. No. Strabane Twp., 700 A.2d 577 (Pa. Cmwlth.
1997). {N/R}
Arbitrator upholds chief's ban on the practice of
criminal law by police officers; the possibility of a conflict was real, and
the prohibition was a reasonable restraint. Moreover, the failure to promote
the grievant because he was a lawyer did not violate the bargaining agreement,
which allowed the “rule of three.” Harper Woods (City of) and Police Ofcrs.
Lab. Council, FMCS #96-16880-3 (Chiesa 1997). {FP Doc. #5650} [1997 FP 168-9]
Appellate court annuls chief's order disallowing
officer to moonlight as punishment for violating rules on secondary employment.
Frat. Ord. of Police v. Mehrling, 343 Md. 155, 680 A.2d 1052 (1996). [1997 FP
89-90]
Illinois appellate court upholds termination of
police officer for soliciting private security business; officer had prior
disciplinary problems. Eaton v. Bd. of Fire & Pol. Cmsnrs, Hoffman Estates,
#1-95-3064, Unreported case {Publishers ref. # 5645}. [1997 FP 40]
Off duty officers could not use city vehicles
while working at their secondary employment positions. Morton v. Bell, 452
S.E.2d 103 (Ga. 1995). [1996 FP 7]
City was obligated to pay officers for private,
off-duty work details, even though contractor failed to pay the city for their
work. The arbitrator noted the duty involved traffic control at a construction
site, which benefited the town. Winthrop and IBPO L-397, LAIG #5006 (Higgins
1994); 3 (9) Pub.Sfty.Lab. News (LRIS) 9. {N/R}
Appellate court upholds termination of officer
who continued his outside employment in violation of a direct prohibition
imposed because of his excessive use of sick leave. Lugo v. City of Newburgh,
618 N.Y.S.2d 420 (A.D. 1994). [1995 FP 138]
N.Y. state statute regulating police secondary
employment preempted conflicting local regulations. Syracuse P.B.A. v. Young,
593 N.Y.S.2d 718 (Sup. 1993). [1993 FP 153]
N.Y. state statute on off-duty employment did not
completely preempt a police chief from regulating moonlighting police officers.
Syracuse PBA v. Young, #92-4396, 156 Misc.2d 513, 593 N.Y.S.2d 718, 1992 N.Y.
Misc. Lexis 605 (1992). {N/R}
Divided Kentucky appellate court holds that a
Police chief can prohibit outside employment that might cause a conflict of
interest or lower the public's image of officers. A governmental agency may
lawfully require moonlighting officers "to provide insurance and indemnity
for benefit" of the primary entity. Prior approval provision was struck
down because there were no standards or appellate procedures. Puckett v. Miller,
821 S.W.2d 791, 1991 Ky. Lexis 194. {N/R}
City could not forbid its police officers from
working secondary jobs as deputy sheriffs, without negotiating the new
restriction with the union. AFSCME Local 2413 v. Town of St. Johnsbury, #89-40,
12 NPER VT-21060, 7 (3) Labor Lawyer (ABA) 663 (1990).
Indiana Supreme Court upholds police rule
prohibiting secondary employment where alcoholic beverages are sold and
consumed. Fraternal Order of Police Lodge 73 v. City of Evansville, 559 N.E.2d
607 (Ind. 1990).
Federal court upholds police regulation
forbidding officers the right to have secondary employment as private
investigators. Decker v. City of Hampton, 741 F.Supp. 1223 (E.D. Va. 1990).
Federal appeals court upholds rule requiring
employees to first obtain written permission to engage in secondary
occupations; rule even lawfully prohibits unpaid volunteer work in the public
interest. A government agency does not violate the Due Process rights of its
employees by failing to provide them with any internal interpretations
management has constructed on employment-related regulations. Williams v.
Internal Revenue Service, 919 F.2d 745 (D.C. Cir. 1990).
Termination appropriate penalty for corrections
officer who moonlighted without permission at a bodega, then lied about the
whereabouts of his weapon. Ryant v. Cmsnr., Dept. of Correction, 552 N.Y.S.2d
29 (A.D. 1990).
Rule regulating secondary employment must be
strictly construed before disciplinary action is imposed. Ambiguities will be
resolved in favor of employee. Post v. Sioux City Civil Serv. Cmsn., 445 N.W.2d
425 (Iowa App. 1989).
City could not require off-duty police officers
who also worked security jobs to obtain indemnity agreements from their
secondary employers for their actions as police officers. Bowman v. Twp. of
Pennsauken, 709 F.Supp. 1329 (D.N.J. 1989).
Michigan appellate court upholds a police
department regulation against any outside employment as a private investigator.
The court also upheld a requirement that all secondary employment receive prior
approval. The court also recognized the potential problems which could arise
when a supervisor and subordinates work as partners in a private business.
Allison v. City of Southfield, 432 N.W.2d 369 (Mich. App. 1988).
State statute prohibiting public employees from
accepting off-duty employment that conflicts with their public duties did not
restrict employer from adding further restrictions. Long Beach Police Officers
Assn. v. City of Long Beach, 250 Cal.Rptr. 869, 759 P. 2 504 (1988).
Federal court allows civil rights suit for
interfering with a police officer's secondary employment; political motivation
alleged. McNamara v. City of Chicago, 700 F.Supp. 917 (N. D. Ill. 1988).
Sheriff's prohibition against off-duty employment
as security officers is upheld by appellate court. Dake v. Bowen, 521 N.Y.S.2d
345 (A.D. 1987).
Appellate court upholds dismissal of officer for
violating agency's regulations on outside employment. Andrejco v. Penna. Public
Utility Cmsn., 531 A.2d 115 (Pa. Cmwlth. 1987). See also: Williams v. City of
Pittsburgh, 531 A.2d 42 (Pa. Cmwlth. 1987).
City must pay death benefits to moonlighting
police officer killed by robbery suspect, even though officer was being paid by
motel. City of Phoenix v. Industrial Cmsn. of Arizona, 742 P.2d 825 (Ariz. App.
1987).
Police chief could limit outside employment of
subordinate police officers who sought private employment as security guards,
to work within that city. Willful disobedience grounds for discharge. Martin v.
Mathys, 501 N.E.2d 286, 149 Ill.App.3d 800 (1986).
Louisiana appellate court invalidates
requirements that secondary employers assume tort liability and responsibility
for off-duty injuries to police officers. Benelli v. City of New Orleans, 478
So.2d 1370 (La. App. 1985).
Civil service authority lacked authority to
regulate outside employment; board exceeded its statutory authority. Schalz v.
McHenry Co. Sheriff's Dept. Merit Cmsn., 482 N.E.2d 127 (Ill.App. 1985).
Appellate court affirms termination for engaging
in outside employment without chief's prior approval. Kell v. Sayad, 670 S.W.2d
82 (Mo.App. 1984).
Appellate court upholds suspension of off-duty
cops who ran “XXX” rated video tape store. Heise v. Gates, 197 Cal.Rptr. 404
(App. 1984).
Officer's misconduct in wife's private business
furnished a sufficient basis for his termination from police dept. Richardson
v. City of Omaha, 333 N.W.2d 656 (Neb. 1983).
City could require its full-time captain to quit
his long-term part-time job with sister city. Phillips v. Hall, 447 N.E.2d 418
(Ill.App. 1983).
City could ban all secondary employment or
prohibit a police officer from operating a truth deception testing agency.
Borlin v. Civil Serv. Cmsn. of Council Bluffs, 338 N.W.2d 146 (Iowa 1983).
Operation of outside business could justify
termination for unbecoming conduct. Danner v. Bristol Twp. Civil Serv. Cmsn.,
440 A.2d 702 (Pa. Cmwlth. 1982).
Appellate court affirms dismissal of police legal
advisor for refusing to divulge information about his private client. Titus v.
Los Angeles Co. Civil Serv. Cmsn., 181 Cal.Rptr. 699 (App. 1982).
Department could forbid part-time officers from
working for other departments. Roper v. Borough of Versailles, 436 A.2d 1058
(Pa. Cmwlth. 1981).
"Moonlighting" without written
permission is punishable; possible conflict of interest justifies dismissal.
Weisenritter v. Bd. of Fire and Police Cmsnrs. of Burbank, 385 N.E.2d 336
(Ill.App. 1978).
Off-duty employment -- who is liable for
injuries? Court finds city, not secondary employer responsible for benefits.
City of Monessen v. Workmens" Compensation Appeal Board, 387 A.2d 1000
(Pa. Cmwlth. 1978).
Missouri court of appeals sidesteps merits of claim
relating to moonlighting; declaratory judgment action inappropriate. Milberg v.
Sanders, 524 S.W.2d 441 (Mo.App. 1975); See also: Chigaros v. Murphy, 327
N.E.2d 12 (Ill.App. 1975).
A police agency has the authority to regulate the
off-duty employment of its officers: Cox v. McNamara, 8 Ore.App. 242, 493 P.2d
54, cert. denied 409 U.S. 882 (1972); Flood v. Kennedy, 12 N.Y.2d 345, 190
N.E.2d 13, 239 N.Y.S.2d 665 (1963); Hofbauer v. Bd. of Police Cmsnrs., 133
N.J.L. 293, 44 A.2d 80 (1945). {N/R}