January 21, 2016, Trial News | The American Association For Justice

January 21, 2016, Trial News

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Township’s entitlement to FLSA police exemption is jury question

Diane M. Zhang

photo of police car lights

A federal court in New Jersey has ruled that a township’s entitlement to the Fair Labor Standards Act’s (FLSA) police exemption is an issue of material fact for a jury. The plaintiffs—six current and former law enforcement officers for the Township of Franklin, N.J.—claim that the township violated the FLSA by failing to compensate them for pre- and post-shift work.
 

A federal court in New Jersey has ruled that a township’s entitlement to the Fair Labor Standards Act’s (FLSA) police exemption is an issue of material fact for a jury. (Hughes v. Franklin, 2014 WL 1428609 (D.N.J. filed Dec. 23, 2015).) The plaintiffs—six current and former law enforcement officers for the Township of Franklin, N.J.—claim that the township violated the FLSA by failing to compensate them for pre- and post-shift work, which included responding to emergencies during the officers’ commutes in their patrol cars; arriving 10 minutes earlier than the start time of their shifts, as required by their collective bargaining agreement; and staying past their shift’s end to perform bookkeeping and timekeeping responsibilities. The defendant argued that it was exempt from paying the officers for such overtime under §207(k) of the FLSA, which exempts fire stations and police departments from the standard 40-hour work week.  

Section 207(k) was designed to ease the 40-hour requirement for public agencies engaged in fire protection or law enforcement activities because these professions are inherently unpredictable. Attorney Michelle Douglass of Somers Point, N.J., who represented the police officers, explained that this provision strikes a balance between “the 24/7 nature of the schedules required, and the monetary obligation upon municipalities to properly compensate their employees without crushing their budgets.”

To invoke this exemption, an employer must establish special 7(k) “work periods” of seven days to 28 days. Overtime is due when an employee works over the specified number of hours that applies to a particular work period. For example, a 7(k) work period of seven days allows the employee to work 43 hours of compensable time during that period before overtime is due, and a 7(k) work period of 28 days allows for 171 hours. The FLSA defines “compensable time” as all time that an employee is on duty—including pre- and post-shift activities that are an integral part of the job.

The plaintiffs alleged that the work they performed pre- and post-shift should have been compensated at either the officers’ regular or overtime pay rate. The defendant moved for summary judgment, arguing that it was exempt under §207(k), that the officers’ base pay already accounted for “muster” time—the time spent pre-and post-shift for tasks such as inspection, roll call, and donning and removing uniforms and gear—and that the officers’ use of patrol cars on their commutes was not compensable under the FLSA.

Because there was no dispute that the defendant was engaged in law enforcement, the defendant had to show only that it operated on a 7(k) work period to prove that it fell within the exemption. To do so, the township cited an affidavit from its police chief, which made passing reference to a “28-day work cycle,” as well as the overtime provision of the officers’ collective bargaining agreement, which calculated overtime pay based partly on a threshold of 168 hours worked in a “28-day cycle.”

The plaintiffs disputed that the defendant operated on a 28-day work period, pointing out that the collective bargaining agreement did not include the term “working period,” that the officers were required to submit their timesheets every month and not every 28 days, and that the payroll did not run on a 28-day cycle. Considering these arguments, Judge Ann Marie Donio denied the defendant’s motion for summary judgment, ruling that the existence of a 28-day work period—and the defendant’s entitlement to the exemption—is an issue of material fact for a jury.

The judge reached the same conclusion regarding the defendant’s argument that the officers’ base pay encompassed muster time. As the township pointed out, the collective bargaining agreement required each officer to arrive 10 minutes before the official start time of their shift, but that officers were allowed to leave before their shift officially ended if they were relieved. Thus, the defendant argued, the officers’ salaries already contemplated muster time. The officers, however, claimed that they were never relieved from their shifts early. The court concluded that a reasonable juror could find that the officers’ base salaries did not contemplate muster time, and denied the defendant’s motion for summary judgment.

Judge Donio granted the defendant summary judgment on the plaintiffs’ claim that they were not properly compensated for time spent responding to emergencies while using patrol cars to commute. The FLSA states that police officers who are given patrol cars to commute and for personal business are not “working” while driving—even if the radio is left on so the officer can respond to emergencies. The FLSA also states, however, that the time an officer spends responding to any such emergencies is compensable. The plaintiffs claimed that they were never compensated for emergency responses during their commutes and explained that they never sought reimbursement because they were unaware the FLSA entitled them to compensation.

The judge ruled, however, that the officers had not presented enough evidence of a material issue of fact. “How can police officers on their way to work ignore a car accident or a dispatch call for help if they are in the vicinity?” Douglass asked. “They should be paid—and this is the practice in most municipalities, but not in Franklin Township. We want the policy and practice to be changed so that the officers—as any other employee—are paid for the work they perform.”