A federal appeals court recently ruled that a group of off-duty police officers who held side jobs with a private security company were employees of the company. Therefore, they were entitled to overtime pay under the Fair Labor Standards Act (FLSA).
What the Law Requires. The FLSA requires employers to pay overtime to employees who work more than 40 hours a week. Courts commonly use a “six factor” test to determine whether a worker is a contractor or an employee:
- The degree of control exercised by the employer over the business operations;
- The relative investments of the employer and worker;
- The degree to which the worker’s opportunity for profit and loss is determined by the employer;
- The skill and initiative required to perform the job;
- The permanency of the relationship; and
- The degree to which the worker’s tasks are integral to the employer’s business.
Facts of the Case. The company provided private security and traffic control services to customers. It generally employed sworn law enforcement officers, although some had no police training. The company paid sworn officers more per hour than it paid nonsworn workers, but the duties performed by both groups were the same. A scheduler kept track of customer work requests and offered assignments to the security workers.
The company told workers when and where to report, and whom to report to upon arriving at a job. Occasionally, depending on the job, the workers were provided with equipment such as reflective jackets, stop/go signs and badge-shaped patches.
Workers who weren’t sworn police officers were required to buy police model vehicles. They followed customers’ instructions, complied with the security company’s standard policies, and sometimes were supervised by other workers from the company. Sworn police officers wore their official police uniforms. Nonsworn workers wore police-style uniforms that bore branded patches from the company. At the end of assignments, workers submitted invoices detailing the hours spent on the job. The workers, both sworn and nonsworn, were treated as independent contractors and were never paid overtime.
Appeals Court Ruling. The U.S. Court of Appeals for the Sixth Circuit found that all the workers were employees and should have been paid overtime. (Acosta v. Off Duty Police Services, Inc., Dkt. No. 17-5595/6071, 2/12/19)