The Police Law Blog

 

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

In an interesting case involving a group of police sergeants, the New York Police Department (NYPD) was ordered to cease their internal investigations into police sergeants related to their Fair Labor Standards Act (FLSA) claims. In Mullins v. City of New York, 2010 WL 4609208 (2nd Cir. 2010), the U.S. Court of Appeals for the Second Circuit upheld a ruling by the U.S. District Court for the Southern District of New York which barred NYPD internal affairs investigators from conducting investigations related to the FLSA claims until the FLSA litigation ended.

BACKGROUND

The plaintiffs in the Mullins case were approximately 4300 current and former New York City police sergeants that had filed FLSA claims against the NYPD for systematic violations of their overtime rights. The police sergeants had filed suit under the FLSA on April 19, 2004 and began to see the NYPD’s legal defense initiate department investigations against some of the plaintiffs through the use of the NYPD Internal Affairs Bureau (IAB) being brought into the case. Specifically, the NYPD’s IAB had been provided, through NYPD’s counsel, with deposition testimony from some of the police sergeants and began to review them for what appeared to be investigatory purposes. In addition, at some of the later depositions, NYPD IAB began to send IAB agents to attend civil depositions of some of the police sergeants. In addition, the NYPD started to order some of the plaintiffs to become document collectors within the NYPD for documents related to the FLSA case.

Finally, the law firm representing the NYPD in the FLSA litigation apparently filed an internal affairs complaint against some of the police sergeants related to the FLSA litigation. These complaints were then investigated by the Chief in charge of IAB directly, with interviews taking place in his personal office, something that was highly unusual. The police sergeants sought an injunction against the NYPD from conducting investigations related to their FLSA case until such time as the litigation ended. The U.S. District Court agreed and issued an injunction against NYPD and they appealed.

RULING

The Court of Appeals agreed that the conduct in question by NYPD warranted the injunction. Specifically, the Court of Appeals for the Second Circuit upheld the U.S. District Court’s opinion, reasoning as follows:

“Regarding the causal connection between the NYPD's actions and Appellees' participation in this lawsuit, we think the link is self-evident, and the district court did not err in concluding as much-IAB investigated the veracity of testimony given by the sergeants as part of the lawsuit. Moreover, the sequence, timing and nature of events only reinforces the connection. The day after the NYPD received transcripts from the depositions of certain test plaintiffs, IAB was dispatched to collect documents from the first group of plaintiffs. As testimony indicated, this was unusual in and of itself, because such documents are typically collected by Administrative Lieutenants or other officers in the individual precincts-not IAB. About seven weeks after the document collection, Sergeant Scott was scheduled to be deposed.

Though he had given no testimony in connection with the lawsuit up to that point, an IAB officer appeared to observe his deposition. When Sergeant Scott was set to retire some months later, he was informed that his retirement was being held up by a pending “disciplinary matter,” which turned out to be an investigation into his deposition testimony. Then, three months after the district court issued its summary judgment order, the NYPD ordered Sergeant Cioffi to submit to a GO-15 interview regarding his deposition testimony. Testimony at the preliminary injunction hearing revealed that even if it had not been unusual for the NYPD to investigate an employee based upon depo-sition testimony in connection with a pending lawsuit, this GO-15 interview was unusual because it took place at the office of the Chief of IAB.”  

The Court of Appeals then upheld the order barring NYPD from conducting investigations related to the FLSA case, finding that retaliation discourages the filing of FLSA complaints:

“Unchecked retaliation subverts the purpose of the FLSA” and “the resulting weakened enforcement of federal law can itself be irreparable harm in the context of a preliminary injunction application”; however, a plaintiff “must show some evidence of actual chill that would be cured by the requested injunction.” Hui Lin v. Great Rose Fashion, Inc., No. 08 Civ. 4778, 2009 WL 1544749, at *21 (E.D.N.Y. June 3, 2009) (internal quotation marks omitted) (citing inter alia, Bennett v. Lucier, 239 Fed.Appx. 639, 640 (2d Cir.2007)). Thus, we have held that “[a] retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights ... or from providing testimony for the plaintiff in [his] effort to protect [his] own rights. These risks may be found to constitute irreparable injury.” Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir.1983).”

THOUGHTS

In this type of case, a police department’s best option is to not interfere with ongoing litigation or been seen as attempting to manipulate outcomes or witnesses through the use of department resources. The purpose behind the FLSA is to encourage those that have overtime compensation complaints to come forward, not to discourage law enforcement officer FLSA complaints with potential retaliation for coming forward. In Mullins, clearly the unusual and out of the ordinary actions, in addition to the timing of the NYPD investigation along with other events showed that NYPD was attempting to interfere in the FLSA litigation, forcing the U.S. District Court to act to protect the police sergeants involved in the underlying litigation. 

By John V. Berry, Esq., BERRY & BERRY, PLLC, berrylegal.com

In a recent case, Lewallen v. Scott County, Tennessee, 2010 WL 2757145 (E.D. Tenn. July 13, 2010), a police officer successfully brought claims under the Fair Labor Standards Act of 1938 (FLSA) for animal care (canine)/K-9 time that was not paid by the officer’s employer. 

 BACKGROUND

The officer, Kristofer Lewallen, was a K-9 officer with the Scott County, Tennessee police department.  His police dog was trained in narcotics detection and was certified as a narcotics detection dog.  Officer Lewallen was not compensated for any of the time he cared for and had trained his police dog, although the Department paid for food, veterinary care, and other necessary items for the canine.

During K-9 Officer training, about a year after he was hired, in 2007, Officer Lewallen learned for the first time that K-9 officers should receive extra compensation for the time they spent with the canines off the clock.  Officer Lewallen researched this issue and brought it to the Department’s attention.  Subsequently, about two months later, the Department suspended the canine program.  Despite the suspension of the program, Officer Lewallen still had to care for and train his police dog since he still had possession of the canine.  The officer kept training logs for his police dog and submitted them to the Chief of Police.

Officer Lewallen had asked for overtime compensation for these duties, from the Chief, but received no response about whether the Department would provide this compensation.  Eventually, Officer Lewallen filed suit against the Department, seeking 874 days of FLSA overtime related to the care and training of his canine.  

COURT'S RULING ON FLSA ANIMAL CARE

The U.S. District Court, in the Lewallen opinion, by Judge Leon Jordan, found in favor of Officer Lewallen’s claims under the FLSA.  In the ruling, Judge Jordan found that:

Sheriff Carson ordered Lewallen to pick up a black Labrador dog named J.J. and to begin working with the dog in the hope that J.J. eventually would be trained as a narcotics detection dog. J.J. was to live with and to be taken care of by Lewallen, but he was not Lewallen's dog as evidenced by the fact that the Sheriff had the dog picked up from Lewallen when he was demoted.

Sheriff Carson wanted Scott County to have a certified narcotics dog and K-9 officer, as did Sheriff Lay, and the sheriffs were certainly aware that keeping a dog at home would require taking care of it beyond Lewallen's scheduled shifts. Even if Sheriffs Carson and Lay were not aware of the exact amount of time needed to care for and train a narcotics dog, they required Lewallen to perform these activities with J.J.   Sheriff Lay was informed that Lewallen thought he should get paid for taking care of and training J.J. when he was off duty, but he did nothing to curtail Lewallen's time spent with the dog, other than suspending the K-9 program for a few months.

Sheriff Lay scheduled the training of J.J. and Lewallen in narcotics detection, and Scott County paid for J.J.'s food, veterinary bills, and other necessities. As the Sixth Circuit held in Brock, Scott County ‘required the officers to take the canines home with them, look after them at all times, keep them well-nourished and in good health, and have them ready for recall to active service at a moment's notice.’

The court finds that the care and training of J.J. was for the benefit of Scott County, and an integral and indispensable part of the County's K'9 program. After he was certified, Lewallen's principal activity for the Sheriff's Department was working as a K-9 officer. Thus, the time Lewallen spent caring for and training his canine is compensable work.

Lewallen, at *3-4 (citations omitted).

In the ruling, Judge Jordan noted that there had not been a compensation agreement in place which might have alleviated the issue under Section 785.23 of the U.S. Code of Federal Regulations.  The Department had tried to pay Officer Lewallen a generic sum of $1,000 to cover all of the losses, but Officer Lewallen did not accept this  amount, turning the Department’s check over to his attorney.  The court in this case found that the Department’s action was unilateral and did not constitute an agreement under Section 785.23. 

Finally, the court awarded Officer Lewallen, both the lost overtime claimed, in the amount of $21,719.98, and liquidated damages for the earlier non-payment, leaving the Department to pay a total of $43,439.96 in compensation to the officer.  The court later awarded $66,261.20 to the officer’s law firm for legal fees in this matter.  It appeared that the Department subsequently filed a notice of appeal in this matter, but then voluntarily dismissed the action, leaving the judgment standing. 

CONCLUSION

Departments should address these types of overtime claims as soon as possible, rather than hope that they go away.  These kinds of cases can ultimately end up costing the Department much more when a suit of this type is brought under the FLSA.  Looking at the totals spent by the Department in this case, not including their own costs for legal defense, they spent at least $110,000 for a claim which originally amounted to $21,719.98. 

By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com

In a very interesting case, which should remind police departments not to retaliate against police officers and supervisors with respect to overtime issues, a police department was held liable for overtime retaliation.  A former patrol officer with the Los Angeles Police Department (LAPD) was awarded a $4,000,000 judgment on November 2, 2010 by a jury after it concluded that the officer’s termination was the result of having testified in an earlier Fair Labor Standards Act (FLSA) case.

The case, Romney v. LAPD, Case No. 09-cv-03048 (VBF) (Judgment Nov. 2, 2010) was filed first in the Superior Court of California for the County of Los Angeles on April 9, 2009 and then removed by the LAPD to the U.S. District Court for the California Central District because of the federal FLSA claims.

Factual Background

Officer Romney was an 18 year veteran of the LAPD, progressing through the ranks with a good record within the Department.  In January of 2008, Officer Romney, by subpoena, was called to testify in another officer’s FLSA overtime case that had been filed earlier, in 2006.  Officer Romney provided honest testimony in the FLSA case, as he was required to do, much to the chagrin of supervisors. 

In Officer Romney’s statements under oath, he explained the overtime policies of the LAPD and why, pursuant to unwritten rules in the LAPD, that he did not submit overtime slips for overtime that he had worked.  No less than a week after he had testified in January of 2008, the LAPD initiated an internal affairs complaint, filed by supervisors, claiming that Officer Romney should be disciplined for insubordination in not submitting overtime slips.  This action was taken despite the fact that this was the practice mandated through the department by supervisors.

Following the investigation, two recommending captains recommended that Officer Romney be issued a one-day suspension.  However, the LAPD Chief of Police, William Bratton, disregarded the recommendation and ordered Officer Romney’s dismissal.  Following the termination, Officer Romney appealed his termination by filing the lawsuit which was eventually heard before U.S. District Judge Valerie Baker Fairbank and a jury. 

Jury Holds that the LAPD’s Retaliation was Unlawful

On November 2, 2010, a U.S. District Court jury found in Officer Romney’s favor, ordering a recovery of $3,999,945, liquidated damages and attorney fees.  The opinion was issued on November 8, 2010.  It is unknown yet whether or not the LAPD will appeal the decision. 

For a copy of the original complaint filed in Superior Court, and then removed to U.S. District Court in Central California, click here. Download LAPD FLSA Retaliation Complaint

In Musticchi v. City of Little Rock, 2010 WL 3327998 (E.D. Ark. Aug 24, 2010), a federal district court dismissed part of a collective action involving police officers, under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (FLSA). The case principally involved legal arguments by the police officers involved that the City of Little Rock had not properly paid police officers time and one-half rates for hours worked in excess of 40 hours in a week.

In particular, the Musticchi case involved claims by Little Rock police officers that they had not been paid properly under the FLSA for “donning and doffing their uniform at the beginning and end of every shift.”  The officers involved in the civil suit also had alleged that that they were entitled to overtime compensation related to maintenance of equipment (ballistic vests, radios, etc.), polishing their shoes and duty belts, and maintaining their duty weapons / ballistic vests. The police officers in this case had alleged that the City of Little Rock had been aware of the large amounts of time for these duties without receiving compensation.  In evaluating the Musticchi case, the court evaluated the issues involved as relating to donning and doffing. 

The Musticchi court first evaluated one of the key cases involving donning and doffing cases, Steiner v. Mitchell, 350 U.S. 247 (1956) (showing and changing integral to workers’ principal activity and therefore compensable under the FLSA).  Following a review of other applicable case law, the U.S. District Court for the Eastern District of Arkansas held that the donning and doffing of police uniforms in the case was not a compensable activity because the police department in Little Rock did not require the officers to change on the premises. 

The court ruled that the police officers were not entitled to FLSA overtime on the donning and doffing issue because the “officers acknowledge that when they or their fellow officers do choose to change at the station they primarily do so for their own benefit.”  Further, the court found that the officers in the case could not identify why they must change on department premises to perform their duties successfully. An additional that came up in the Musticchi in case involved the issue of whether or not safety gear and uniforms constituted “clothing” for purposes of the FLSA.  The Musticchi court found that safety gear should be considered to be clothing. 

One other issue that arose in the case, involved past practices.  The court evaluated this issue for purposes of the Musticchi decision.  In particular, the court ruled upon the issue of whether or not a past practice might impact the donning and doffing issue.  The court found that longstanding past practices of non-compensation for donning and doffing could preclude FLSA compensation in a later brought lawsuit.  In Musticchi, the period of time at issue was 32 years.

The court in this case also held that time spent polishing shoes and boots (not compensable), as well as the maintenance of safety equipment was non-compensable (de minimus).  The Musticchi court left open the issue of whether or not the missed meal breaks and travel time violated the FLSA, but ordered the parties to brief these issues. A copy of the ruling can be found here  Download Musticchi case

 

Police officers across the United States, like many Americans in general use Blackberry or other mobile devices to conduct business.  However, police officers are subject to a number of different rules when it comes to overtime laws and regulations and might now be compensated for time in this regard related to police department Blackberry devices or personal digital assistants (PDA). It seems now that the mobile phone culture has come into play in the context of law enforcement overtime compensation

Recently, a police sergeant in the City of Chicago filed a civil action against the City, claiming that he and others are due significant overtime compensation because they were required to use their Blackberry devices to continue working even though their official shifts were over.

Police Work on a Police Issued Blackberry or other PDA

In the civil action, filed on May 24, 2010, Chicago police Sergeant Jeffrey Allen contends that his connection to work means that the city of Chicago owes him a significant amount of overtime under the Fair Labor Standards Act of 1938 (FLSA).  Sergeant Allen filed this suit on behalf of himself and all other similarly situated police officers employed by the Chicago Police Department “in any rank as non-exempt personnel who worked ‘off the clock’ using Police Department issued PDA’s or other electronic communications devices without receiving compensation for each hour worked, including overtime compensation” over the past 3 years.  Allen’s Civil Complaint, at 3.

The lawsuit contends that the Blackberry devices or PDAs were issued by the Chicago Police Department and required such police officers to be on-call for 24 hours a day, 7 days a week.  Essentially, the lawsuit claims that they were forced to access and review “work related e-mails, voicemails, and text message work orders regardless of their location.”  Allen’s Civil Complaint, at 4.  Sergeant Allen contends, in his lawsuit, that he received numerous telephone calls, emails, voicemails and text messages while not being compensated for his time off the clock.

Sergeant Allen contends that he was expected to respond to these work related messages during the night and early into the morning, while technically off duty.

What this Means for Police Departments

It appears that police overtime FLSA lawsuits have finally reached current times.  In our legal practice, we often see a lot of these types of issues as we represent law enforcement officers and police unions in FLSA cases.  Initially, I think what the civil action filed in this case might mean for other police departments is a quick return to the policy drafting table and then consultation with police unions (where applicable).  This particular case will ultimately be decided on a number of factors, to include (but not limited to) just how required the use of the Blackberry or PDA devices are while off duty.

Many police departments have general 24-hour on duty policies for law enforcement officers, but I would suspect that not many have comprehensive mobile device policies.  The new department policies, to be effective, will have to also address the issue of exempt versus non-exempt law enforcement employees.  Exempt employees, i.e. those that are employed on a strict salary basis will likely not benefit from these types of cases, while non-exempt employees, in theory, have to be paid for all hours of work.

Another issue that is sure to come up is the volume of electronic communications that takes place through these Blackberry or other PDA devices while they are off duty.  If we are talking about a few minutes a day, off duty, the courts might consider this amount of time to be “de minimus” (i.e. too few minutes to be compensated), but as we reach 15 minutes a day, the arguments for FLSA overtime increase and will have to be dealt with either at the department level, or in court.

In that light, police departments will have to seriously address these issues, and do so now, because these types of lawsuit are certain to increase in the future as we move towards a wireless society in all respects.  For a copy of the Allen lawsuit, please click here  Download Blackberrylawsuit