Employment & Labor Law for Public Safety Agencies

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Pay Disputes - Overtime Claims

     Two Milwaukee police officers were fired for cause by the police chief, and their pay and benefits immediately stopped. Appeals of their terminations to the Board of Fire and Police Commissioners were rejected. They claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. They alleged that they were denied constitutional due process and wages. A federal appeals court upheld the rejection of their claims and judgment on the pleadings.  Under Wisconsin state law, the former officers had no property interest in employment once they were discharged for cause by the chief. They were provided a full and adequate appeals process, and their discharges were upheld in accordance with Wisconsin law. They were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under state law, as they were not employed during that time. Milwaukee Police Association v. Flynn, #16-3743, 863 F.3d 636 (7th Cir. 2017).

     Current and former correctional officers who worked at various California facilities claimed that they were improperly denied pay for time they were under their employer’s control before and after their shifts, such as when traveling to and from their posts, attending briefings, checking out required equipment, and being searched at security checkpoints. They asserted state law claims for failure to pay contractual overtime, failure to pay the California minimum wage, failure to keep accurate records of hours worked, and failure to pay overtime in breach of common law contractual obligations. The trial court certified classes, with two subclasses, distinguishing between employees represented by unions and those not represented, and then held that the plaintiffs’ entitlement to overtime pay was controlled by federal, rather than California, law, as well as entering judgment for the defendants. An intermediate state appeals court reversed as to the subclass of unrepresented supervisory employees and affirmed as to the subclass of union represented employees. It ruled that the officers who were employed by state correctional facilities and represented by a union could not recover unpaid minimum wages under state law because a memorandum of understanding, which specified that federal law would apply to preclude compensation for time spent under the employer's control before and after work shifts, had received legislative approval, superseding the state minimum wage law. Unrepresented employees were entitled to pay for all hours worked under the applicable state standard and could pursue breach of contract claims based on the failure to pay overtime. Stoetzl v. State of California, #A142832, 2017 Cal. App. Lexis 765.

     A collective bargaining agreement entered into by the state of Delaware and its agencies required that overtime be paid after 37.5 hours of work per week. The agreement also established a "career ladder" for promotions in some positions based on the satisfaction of specified requirements. Despite the agreement, the state changed the overtime minimum to pay for work over 40 hours instead of 37.5, as well as freezing the career ladder temporarily. The state Court of Chancery ruled that the state was not required to bargain over nonmandatory subjects of collective bargaining, which included overtime and the career ladder. Unfair labor practice charges were properly dismissed. The court further found that provisions of the collective bargaining agreement which conflicted with the legislature's appropriations act were unenforceable. Am. Fed'n of State, County, & Mun. Employees v. State Court:, #CA 6159-VCP, 2012 Del. Ch. Lexis 249.
     In rejecting a state court action for overtime claims, a California appellate panel holds that absent express words to the contrary, governmental agencies are not included within the general words of a statute. "Provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees." Calif. Correctional POA v. State of California, #A125679, 188 Cal. App. 4th 646; 115 Cal. Rptr. 3d 361, 2010 Cal.App. Lexis 1613.
     In a compensatory time dispute involving Chicago police officers, the district court erred in granting an injunction against the city. An injunction is not the appropriate remedy, as there is an adequate remedy at law. Heimann v. City of Chicago, #08-1555, 2009 U.S. App. Lexis 6074 (7th Cir.).
    Arbitrator rules that where a bargaining agreement does not contain any language requiring that overtime be assigned exclusively to a specific bargaining unit, management has a right to assign overtime to qualified individual, including sergeants, that are covered by a separate agreement. City of Roseville and Law Enf. Labor Serv., 123 LA (BNA) 979 (Daly, 2007).
     Arbitrator holds that officers that were required to take random drug test after their shifts ended were not entitled to 4-hours pay for a work-related appointment "outside their standard daily work schedule," because they already were at work and the test was not a "work-related appointment." Sandia Nat'l Lab. and Security Police Assn., FMCS Case #06/58874, 123 LA (BNA) 779 (Hoose, 2006; reported 2007).
     Who is liable for overtime payments to injured officers that are treated at the hospital? The city or the Workers' Comp. plan? Arbitrator finds this city had an established past practice of paying salaries to officers undergoing treatment, and is enforceable even if the payments might have been made on an erroneous legal assumption.. Vil. of Romeoville and Metrop. Alliance of Police, 121 LA (BNA) 1797, FMCS #05/00563 (Wolff, 2006). [2006 FP May]
    Maryland's highest court affirms a holding that corrections workers earn wages from when they enter an institution, until they leave -- and that time waiting to be searched is on the clock. Dept. of Pub. Safety & Corr. Servs. v. Palmer, #74/04, 2005 Md. Lexis 644 (Md. 2005). [2006 FP Feb]
     Police association was entitled to a judgment that the city violated a state wage payment law when computer problems delayed processing of overtime pay during six pay periods. Association was entitled to recover statutory penalties, attorneys' fees, and liquidated damages. Milwaukee Police Assn. L-21 v. Hegerty, #03-3081, 2005 WI 28, 279 Wis. 2d 150, 693 N.W.2d 738, 2005 Wisc. Lexis 138 (2005). {N/R}
     Arbitrator holds that a firefighter who was reinstated to his position was entitled to payment for 282 hours overtime for the eight months between his discharge and reinstatement, which was the amount worked by a firefighter on his shift with most overtime. City of Barberton, Ohio and IAFF L-329, 120 LA (BNA) 1367, FMCS #040209/52328 (Goggin, 2004). {N/R}
     Arbitrator holds that the remedy for a mistake in scheduling overtime is to pay for the time the grievant would have worked. To reschedule the grievant for another time period would provide no incentive to the employer to avoid errors. Warren County, Ohio, Sheriff and Deputy Sheriff's Benev. Assn., AAA Case #52-L-390-00322-04, 120 LA (BNA) 925 (Duff, 2004). {N/R}
     New York's highest court holds that an interest arbitration award which had granted more favorable overtime pay calculations to officers must be honored, even after the contract with the union had expired. The city could not revert to the former way of overtime calculations. Town of Southampton v. New York State PERB, #3-85, 2 N.Y.3d 513, 813 N.E.2d 602 (2004). {N/R}
     Federal court refuses to dismiss a FLSA claim of 53 hours raised by a NYPD lieutenant, who was required to stay at home as a result of an internal affairs investigation. Nonnenmann v. City of N.Y., #02CV10131, 2004 U.S. Dist. Lexis 8966, 9 WH Cases2d (BNA) 1584 (S.D.N.Y. 2004). {N/R}
     Arbitrator rules that management did not violate the bargaining agreement when it denied the grievant overtime pay to take courses for a position on the air rescue unit, where he needed courses to be eligible to take the new job, and did not need courses for his current position as a paramedic. Broward Co. Sheriff's Dept. and B.C. Prof. Paramedics and F/F, IAFF L-3333, 119 LA (BNA) 1281, FMCS Case #03/13856-3 (Chandler, 2004). [2004 FP Oct]
     Thousands of Justice Dept. attorneys' lost a class action suit for compensation because their overtime was not officially ordered or approved in writing as required by the Federal Employees Pay Act. Doe v. U.S., #03-5075, 372 F.3d 1347, 2004 U.S. App. Lexis 12444 (Fed Cir. 2004). {N/R}
     The Federal Labor Relations Authority has ruled held that federal criminal investigators whose lunch breaks were interrupted by supervisor work requests can count the response time as duty time. INS and AFGE L-3983, #0-AR-3710, 59 FLRA No. 102, 2004 FLRA Lexis 6 (FLRA 2004). {N/R}
     Arbitrator concludes that management did not violate the bargaining agreement when it declined to pay overtime to a firefighter who took a medical exam during his off-duty hours; medical exams was not among the categories triggering overtime. City of Cincinnati and L-48 IAFF, 119 LA (BNA) 421, AAA Case #52-390-00601-03 (Donnelly, 2004). [2004 FP May]
     DEA officer was not entitled to overtime pay where the hours were not officially ordered or approved. Crowley v. U.S., #94-711C, 53 Fed. Cl. 737, 2002 U.S. Claims Lexis 260 (Ct.Cl. 2002). {N/R}
     U.S. Court of Federal Claims holds that 9,000 federal prosecutors are entitled to overtime (and back pay) under the Federal Employees Pay Act, Doe v. U.S., #98-896C, 2002 U.S. Claims Lexis 304, 71 U.S.L.W. 1342 (Ct.Cl. 2002). {N/R}
     Arbitrator disallows a fire union's grievance complaining about a reduction in overtime after more firefighters were hired. City of Claremore and IAFF L-1077, FMCS Case #01/0627-12769-8, 117 LA (BNA) 722 (Marks-Barnett, 2002). [2003 FP Jan]
     Arbitrator sustains management's reshuffling of corrections officers to avoid paying overtime. Actions did not violate the contractual duty to maintain a safe work environment. Federal Bureau of Prisons and AFGE L-171, FMCS Case #01/11034, 116 LA (BNA) 1718 (Moreland, 2002). [2002 FP Sep]
    A worker who received $20 an hour plus $150 per week "per diem" for field work was entitled to have the $150 counted as part of his base wages for FLSA time and one-half overtime pay purposes. Berry v. Excel Group, #01-40239, 288 F.3d 252, 2002 U.S. App. Lexis 7243, 7 WH Cases2d (BNA) 1313 (5th Cir. 2002). [N/R]
     City did not have “constructive knowledge” that a police officer worked overtime on a drug task force. City had a policy requiring officers to get prior approval before working unauthorized overtime, which the officer knew about and failed to seek approval. Newton v. City of Henderson, 47 F.2d 746 (5th Cir. 1996). {N/R}
     City was not required to pay overtime for a command rank officer, and could designate a sergeant as watch commander. Lynn (City of) and Lynn Police Assn., 25 (6) LAIG #5047 (AAA) 3 (Stutz, 1994). [1995 FP 153]
     Police academy trainees were entitled to overtime pay under the employment contract, even though they were not members of the bargaining unit. Evansville (City of) v. Braun, 619 N.E.2d 956 (Ind.App. 1993). [1994 FP 152]
     Texas holds that a requirement that firefighters wear a pager or provide a telephone number did not convert off-duty periods to time worked. Eckles v. City of Lubbock, 846 S.W.2d 863 (Tex.App. 1992). [1993 FP 154-5]
     Police union's demand that a city could not assign patrol cars to cover more than one sector, when all sectors could be filled by overtime assignments, was a nonmandatory subject of bargaining. It interfered with management's right to establish staffing and deployment. City of New Rochelle and Police Assn. of N.R., NY-PERB #U-10093 (ALJ decis.), 21 NYPER (LRP) ¶ 4592, 1988 NYPER (LRP) Lexis 2235. {N/R}
     City may pay police or fire workers straight time, but pay other city workers overtime pay; not a denial of equal protection. Confederation of Police v. City of Chicago, 481 F.Supp. 566 (N.D. Ill. 1980).
     City may set “hourly wage” of employees paid monthly to avoid additional sums due for overtime. Miller v. Lexington-Fayette Urban Co. Govt., 557 S.W.2d 430 (Ky. 1977).
     IMPORTANT: See also, Fair Labor Standards Act - Overtime and in General

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