IS OFF-THE-CLOCK TIME FOR LAW ENFORCEMENT EMPLOYEES THE BIGGEST CONTRADICTION (AND HYPOCRISY) IN WAGE AND HOUR LAW?
The economic downturn since 2007 has affected many aspects of labor and employment law, including wage and hour matters. Efforts by employers to lower labor costs as one of the means to deal with budget shortfalls have included refusing to grant pay increases in collective bargaining negotiations, minimizing or eliminating overtime, and basically doing everything possible to ‘get more out of existing (or even reduced) staff’ without hiring more employees. These efforts have in turn led to an increase in the wage law violation known as ‘off-the-clock’ (or “OTC”) work – – having employees perform tasks for the benefit of the employer before and after the employees’ paid work shifts without providing any pay for such time.
While the recession has made OTC time prevalent in both the public and private sector, the OTC debate has become especially heighted in law enforcement due to an inherent contradiction: most public employers have clear, written policies prohibiting any work performed outside an employee’s scheduled, paid shift hours without obtaining prior, written approval to work overtime – – yet the Officers, Deputies, Sergeants and Lieutenants continue to perform the pre and post shift OTC tasks for no pay. Why?
Police Officers and Deputy Sheriffs alike begin their law enforcement careers by training for six months or more at ‘Academies’, during which they learn the varied skills needed to adequately serve in law enforcement. One of the ‘teachings’ at these Academies invariably emphasizes the need to ‘come to work early’ in order to be fully prepared the minute your paid shift starts, in the event you have to take a patrol call right away, deal with an Jail inmate issue, or even just to provide security for a Court room the minute it becomes active for the day. The training also stresses that the call of law enforcement duty means fully completing your daily tasks, even if time beyond your paid shift is necessary, so that arrest reports, booking evidence, or other important items are not left undone. Despite such training as the beginning to law enforcement careers, the employees are to blame for the pre and post shift OTC time, provided they are aware of the policies they are working under, right? Not necessarily.
With such training as the starting point, Sheriffs’ and Police Departments then build on these teachings and emphasize the ‘be ready the minute your shift starts’ and ‘complete all your tasks before going home’ mantra throughout the careers of law enforcement employees. These directives may or may not be set forth in specific policies, but either way are the basis of the law enforcement ‘culture.’ The Officer or Deputy doesn’t need to refer to any specific writing to follow these teachings since he or she knows the watch Sergeant expects these rules to be followed. In turn the watch Sergeant knows that the supervising Lieutenant is keeping track of whether all employees are ready the minute their shift starts, or are not headed home until all ‘loose ends’ for their work that day are tied. The Lieutenant knows that the presiding Captain expects the same, and these expectations repeat at each level of the paramilitary command structure on up to the Chief of Police or the Sheriff. During the recent and continuing economic recession, these ‘teachings’ are coupled with another directive: don’t put in for overtime for any extra work outside your shifts because it won’t be approved. And so the OTC culture has been created, exists, and continues – – despite the relatively clear mandate under wage and hour law that such practice is not allowed.
Under the federal Fair Labor Standards Act (“FLSA”), the law which sets the requirements for overtime pay for most public employees, the U.S. Supreme Court long ago defined “work” as physical or mental exertion, whether burdensome or not, controlled or required by the employer and pursued primarily for the benefit of the employer. Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, (1944) 321 U.S. 590, 598. Federal regulations interpreting the FLSA have broadly defined compensable hours of work to include “all pre-shift and post-shift activities which are an integral part of the employee’s principle activity or which are closely related to the performance of the principle activity… .” 29 CFR § 553.221. Other FLSA regulations define the term “principle activities” to be construed liberally and to include “any work of consequence performed for an employer, no matter when the work is performed.” 29 CFR §790.8.
Under this broad standard, Courts have been asked to decide if employers can really be expected to know when employees are performing pre and post shift OTC tasks, especially if policies are in place requiring prior approval to work outside scheduled hours. Both the statutory basis and the multiple Court rulings on this issue have established that the controlling factor is not whether the employer knew about the OTC work, but whether the employer should have known and/or allowed such work to occur. The FLSA defines “Employ” as including “to suffer or permit to work.” 29 U.S.C. § 203(g). Federal Circuit Courts of Appeal have stressed that “an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of [the FLSA]. An employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.” Forrester v. Roth’s I.G.A. Foodliner, Inc. (9th Cir. 1981) 646 F.2d 413, 414. Even employers with policies prohibiting any work outside regular scheduled shifts are obligated to use reasonable diligence to find out if employees are performing OTC tasks: “[a]n employer’s knowledge of overtime hours worked is measured in accordance with his duty to inquire into the conditions prevailing in his business. This duty cannot be avoided simply because the business precludes his personal supervision and compels reliance on subordinates. In reviewing the extent of an employer’s awareness, a court need only inquire whether the circumstances were such that the employer either had knowledge of overtime hours being worked or else had the opportunity through reasonable diligence to acquire such knowledge.” Ketchum v. City of Vallejo (E.D. Cal. 2007) 523 F.Supp.2d 1150, 1163 (Citing Reich v. Department of Conservation and Natural Resources, (11th Cir., 1994) 28 F.3d 1076, 1082).
Using such reasonable diligence, does a Police or Sheriff’s Department have the means to know about the typical OTC tasks performed by Officers, Deputies, Sergeants or Lieutenants? While the command structure may appear to provide a convenient mechanism for the higher command levels, up to Chief of Police and Sheriff, to claim ‘I had no idea the Officers/Deputies were performing such tasks’, the common day-to-day work conditions in law enforcement suggest otherwise. Officers, Deputies or Sergeants assigned to patrol typically have paid shifts which begin with ‘briefing’ sessions; in turn, such employees typically must be ready to ‘hit the street’ and respond to calls from dispatch the minute briefing ends, or even during briefing. In order to be ready to respond to such calls, various OTC tasks must be performed prior to the start of the paid shift, including locating and fueling the patrol vehicle, checking out required equipment (shotgun, taser, and radio), installing such equipment in the vehicle, and logging on/activating the vehicle’s transmitter to dispatch. At the end of patrol shifts, Officers or Deputies often have late shift arrests which must be completed (including placing the arrestee in custody, booking any evidence, and most importantly completing the arrest report without handing off this task to another Officer or Deputy, since multiple ‘hands’ on such reports may compromise the value of such evidence) before such employee can go home. Jail Deputies typically must be at their assigned post when their paid shift commences, but first must engage in briefing sessions with outgoing employees and/or must log-in to computer stations to learn the current conditions in the jail. Court Deputies (or Bailiffs) most often have paid shifts which begin when the Court room they are assigned to becomes active, yet beforehand must check their work email station and conduct a ‘sweep’ around their assigned Court area for security purposes. The OTC time for these assignments – – even when incurred contrary to a policy to obtain pre-approval to work outside paid shift hours – – is known by, or should be known by, the higher command levels of Police and Sheriffs’ Departments, whether or not the high level commanders visually observe these OTC tasks. The high level commanders know that patrol Officers or Deputies can’t possibly respond to calls the minute briefing ends, or from briefing, without having already performed the OTC tasks to prepare their vehicles; they know that Deputies or Sergeants assigned to jails cannot be ready at their posts inside the jails the minute their paid shifts start without engaging in the pre-shift briefing; and they know the Bailiffs must perform pre-shift tasks to be ready the minute their assigned Court room becomes active. In turn, under the FLSA, all these OTC tasks performed by law enforcement employees are compensable as time worked.
So with the law on compensable time under the FLSA relatively clear, and with the obligation for employers to know or to find out if OTC time is occurring established, OTC litigation should be a straight-forward means to recover back-overtime pay, and to act as a deterrent to ongoing OTC time. It is not, for at least three reasons: 1) the FLSA ‘7k exemption’ for law enforcement creates a barrier to OTC liability ; 2) variances in OTC tasks based on assignment, work location or supervisor make ‘class’ OTC litigation difficult; and 3) the potential for retaliation for raising OTC issues remains a valid concern for every law enforcement employee.
First, law enforcement employees are typically not entitled to overtime pay simply by working above forty (40.0) hours per week as other employees are; instead, law enforcement falls under the FLSA ‘7k exemption’ which raises the overtime pay ‘trigger’ to 171 hours per four week work period (or 43 hours per week). 29 U.S.C. § 207(k). Even though prevailing federal Circuit Court of Appeal law such as Adair v. City of Kirkland (9th Cir., 1999) 185 F.3d 1055 require the employer to officially adopt such ‘7k exemption’ by an ordinance or equivalent writing, more and more federal District Court decisions are now ruling that all the public employer must do to adopt this exemption is to use a repeating work period of between seven (7.0) and 28 days. Since the ‘regular’ scheduled work hours for law enforcement employees are typically forty (40.0) hours per week, a ‘gap time’ of three hours per week exists for 7k employees, which must be overcome before FLSA overtime pay for OTC tasks can be obtained through litigation. In other words, 7k exempt law enforcement employees scheduled for and working 40 regular hours per week must incur three hours of OTC time per week (or over half an hour per day) before any overtime pay for the OTC time would be due under the FLSA.
Second, significant difficulties exist in litigating OTC claims under the FLSA as ‘class actions’ for law enforcement employees. While an employer’s policies requiring approval to work any time outside scheduled hours usually apply consistently to all class members in an action for OTC time, the type of OTC tasks performed and the frequency or duration of such tasks may vary depending on job assignment, work location, and supervisor, increasing the chances that the employers’ motions to de-certify FLSA collective actions will be granted by the Courts. This is what happened in Reed v. County of Orange (2010) 266 F.R.D. 446, a class action under the FLSA brought by and for Sheriffs Deputies seeking pay for various pre and post shift OTC time, along with OTC time during interrupted meal periods. The Court in Reed granted the County’s motion to de-certify the FLSA ‘class’ based on differences in the OTC time raised by the County to show that the class members were not ‘similarly situated’. Even though each of the 700 plus class members had the opportunity to continue with their litigation after the class was de-certified, only 128 of these class members decided to litigate forward individually.
Finally, the legitimate fear of retaliation by the employer which many law enforcement employees possess effectively prevents many employees from raising OTC claims. Even though the FLSA makes it unlawful to discharge or in any manner discriminate against an employee raising FLSA claims (See 29 U.S.C. § 215(a)(3)), the paramilitary culture in Police and Sheriffs’ Departments causes many employees who perform OTC tasks to forego litigating such claims, for fear of negative effects on their law enforcement careers if they pursue pay for OTC time. Their concerns are based on the same directives (express or implied) from supervisors routinely given in this economic recession; ‘don’t turn in requests for overtime pay for the OTC tasks since they won’t be approved.’
These obstacles have caused law enforcement OTC litigation to end with reduced recovery through settlement, as in the Reed v. County of Orange case cited above, or to stall. For example, three different FLSA-based lawsuits with OTC claims against the Los Angeles Police Department (LAPD), filed respectively in 2003, 2004 and 2007 and which have been coordinated under one Judge, have litigated at a very slow pace and now have hit a standstill. Only four of less than 30 Plaintiffs in the Nolan case have had their OTC claims go to trial; the remaining Plaintiffs in that case, along with over 2,000 Plaintiffs/class members in the Alaniz case, and nearly 200 Plaintiffs/class members in the Mata case have not had their claims go to trial. Unless these cases were to settle, like the Reed case, it is unclear how litigation of the OTC claims for the over 2,200 law enforcement employees in these cases will be completed.
Whether changes to any of these obstacles to law enforcement OTC litigation will occur – – and whether the contradiction between the law prohibiting OTC time and the day-to-day pre and post shift tasks performed by law enforcement employees for no pay will ever end – – remains to be seen. The FLSA ‘7k exemption/gap time’ barrier may disappear if law enforcement employees begin seeking pay for their OTC under state law based actions, or through the arbitration of grievances for violations of the overtime pay requirements in negotiated collective bargaining agreements. The difficulties in using the ‘class’ approach for OTC claims may, to some extent, be alleviated simply through the use of a sufficient number of sub-classes being pled in law enforcement OTC litigation, so that the variances in the type, duration and frequency of OTC tasks within each sub-class are minimized or eliminated. Finally, the fear of retaliation by employers for raising or pursuing OTC claims may never be eliminated; however, the number of law enforcement employees with OTC claims who have retired, or are about to retire, and who believe strongly that they should have received pay for the OTC tasks required by and done for the benefit of their employer is increasing each year, each month and each day. The hypocrisy practiced by these employers – – to prohibit any hours worked outside regular shift hours without prior approval, while at the same time expecting each Officer, Deputy, Sergeant and Lieutenant to abide by the ‘be ready the minute your shift starts’ and ‘complete all your tasks before you go home’ mantra, may enable more and more law enforcement employees to overcome their fear of retaliation and pursue pay for their OTC time.
 Some counsel experienced in FLSA-based litigation would argue there is at least one other significant obstacle to OTC litigation; the “de minimus” defense. This defense relies on the contention that small or trivial amounts of work time per day – – even if otherwise compensable as ‘hours worked’ under the FLSA – – are not compensable because such time is insignificant. While the idea of de minimus amounts of time being noncompensable under the FLSA has been addressed by federal courts, there is no agreement on how many minutes per day constitute a de minimus amount of time. In Lindow v. United States (1984) 738 F.2d 1057, the Ninth Circuit Court of appeal did set forth a three factor test to determine work activities which are de minimus and are therefore not compensable under the FLSA. These factors are: (1) the administrative difficulty of recording the time required for the work activities; (2) the size of the claim in aggregate represented by the work activities; and (3) whether the work activities occur on a regular basis. Despite this three factor test being articulated by the court, however, no ‘bright line’ rule has defined how many minutes per day are de minimus under the FLSA. Published cases have held that less than ten minutes per day is not de-minimus. Chao v. Tyson Foods, Inc., 568 F.Supp.2d 1300 (2008). Further, regulations clarifying the FLSA statutory provisions emphasize that small amounts of time are not compensable “only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.” 29 C.F.R. § 785.47
 This litigation did, however, end up obtaining reduced recovery through settlement for all the class members; faced with 128 individual cases going to trial, the County and the Plaintiffs ended up resolving the case through pre-trial mediation, resulting in a settlement for the 128 employees who chose to litigate forward after the class was decertified, and for the other class members (at a lesser settlement) who did not file their claims to go forward individually.
 The California federal Central District Court cases of Nolan v. City of Los Angeles CV03-2190-GAF (AJWx), Alaniz v. City of Los Angeles CV04-08592GAF (AWJx), and Mata v. City of Los Angeles CV 07-06782 GAF (AJWx)
 For example, California Labor Code provisions provide the statutory basis to seek recovery of overtime pay based on collective bargaining agreement provisions for such pay (pursuant to CA Labor Code §§ 222 & 223) or the recovery of California minimum wages (pursuant to CA Labor Code §§ 1182.11 & 1182.12) for pre and post shift OTC time; whether these statutes apply to public employees is presently being determined by Courts in various California wage and hour cases. Alternatively, pay for OTC time may be sought in California Courts under common law breach of contract claims, provided collective bargaining agreements exist for the law enforcement employees which provide overtime pay for any hours worked outside scheduled shift hours (See the CA Supreme Court precedent for breach of contract actions for overtime pay set forth in Madera Police officers Assn. v. City of Madera (1984) 36 Cal.3d 403, 413: “to the extent services are rendered under statutes or ordinances then providing mandatory compensation for authorized overtime, the right to compensation vests upon performance of the overtime work, ripens into a contractual obligation of the employer and cannot thereafter be destroyed or withdrawn without impairing the employee’s contractual right.”)