|Legal Opinion: |
Text of Document: From: Ashburn, Melissa Ann
Sent: Wednesday, October 26, 2011 8:01 AM
Subject: RE: Security Work
My research reveals that there is no overtime liability in this situation. The Department of Labor Wage and Hour Division which enforces the Fair Labor Standards Act states the following in an opinion letter, addressing a similar situation:
Section 7(p)(1) of the FLSA, 29 U.S.C. § 207(p)(1), makes special provision for fire protection and law enforcement employees of public agencies who, at their own option, perform special duty work in fire protection, law enforcement or related activities for a separate and independent employer (public or private) during off-duty hours. The hours of work for the separate and independent employer are not combined with the hours worked for the primary public agency employer for the purposes of overtime compensation. Section 7(p)(1) applies to such outside employment provided (1) the special detail work is performed solely at the employee’s option, and (2) the two employers are in fact separate and independent. See 29 C.F.R. §§ 553.227(a)-(b).
This special provision applies even if the public agency facilitates the employment or affects the conditions of employment of such employees. Section 7(p)(1) applies to special details even where a state law or local ordinance requires that such work be performed and that only law enforcement or fire protection employees of a public agency in the same jurisdiction perform the work. These principles are exceptions to the usual rules on joint employment set forth in 29 C.F.R. Part 791. See 29 C.F.R. §§ 553.227(d)-(f).
In other words, under section 7(p)(1), when a public agency fire protection or law enforcement employee is jointly employed by a separate and independent employer during the same workweek, the primary public employer would not be liable for the payment of any overtime compensation which may otherwise be due as a result of the special detail joint employment. Section 7(p)(1) does not prevent a public agency from prohibiting or restricting outside employment by its employees. See 29 C.F.R. § 553.227(h).
I have attached a copy of this 2007 DOL Opinion letter.
On the other issues, I am more conservative than the TML Risk Management Pool, and advise that officers not wear the city uniform, carry a city-issued gun or drive a city police vehicle when working for private entities or other employers. In White v. Revco Discount Drug Centers, 33 S.W.3d 713 (Tenn. 2000), the Tennessee Supreme Court determined that a private company employing an off-duty police officer may be liable for the officer’s acts, and also found that the government entity which regularly employs the officer may be liable. The Court opinion discusses the “dual master” doctrine, under which the government is liable for the off-duty acts of a law enforcement officer if the following facts exist:
1) the action taken by the officer is an exercise of a traditional police power, such as the power to issue a citation, or the power to command aid;
2) the municipality had knowledge, either actual or constructive, of the officer’s action;
3) the action taken by the officer simultaneously serves the interests of both the private employer and the municipality; and
4) the interests of the private employer and the municipality that are served by the officer’s actions are not inconsistent with each other. White, at 725.
If these elements exist, the municipality may be held liable for the off-duty officer’s act. Under the White case, both the private employer and the municipality may be held liable for the acts of an officer if the plaintiff establishes the factors listed above. The fact that the private employer has liability insurance to cover the officer’s acts is irrelevant to who is liable.
There is no Tennessee court opinion on the issue of use of government-owned equipment by an off-duty police officer moonlighting in a security position, but it is very likely that such use would enable a plaintiff’s lawyer to establish the existence of the 4 factors listed above. For example, an off-duty officer driving a patrol car while working for a private employer who makes an arrest is presumed to be acting in the interest of the city and his use of the car is further evidence of traditional police power. Any accident which occurs while the off-duty officer is driving the police car will likely result in liability to the city.
The answer is the same for the workers’ compensation question – it is very likely the City would be held liable for workers’ compensation if an officer is injured while moonlighting under the circumstances described.
I have attached a 2002 Tennessee Attorney General Opinion on the issue of liability in these situations. No matter what insurance coverage the private employer may have, or the contracts signed between the City and these private employers, there is still potential liability for the City.
I hope this is helpful. Let me know if you need further information or assistance.
Melissa A. Ashburn
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service