Q & A

From Colorado

Question: How restrictive can a police department’s policies be regarding VISIBLE tattoos, body art, piercings, etc., for commissioned personnel?

Answer: The law in this area is evolving rapidly. At present, we feel comfortable saying these things: (1) Courts are not likely to conclude that the regulation of visible tattoos, piercings, or other forms of body art in any way restrict the constitutional rights of employees. There’s even a court decision that upholds a police department’s right to regulate the off-duty wearing of earrings by male police officers; and (2) In a normal collective bargaining environment, changes in regulations concerning body art are likely to be mandatory for bargaining, meaning that an employer couldn’t change the past practice in the area without first negotiating with the union. Since you’re from Colorado, that means you’re not covered by a statewide collective bargaining law. As such, your bargaining rights in this area would be defined by your local bargaining ordinance or charter provision.

From Connecticut

Question: A detective was sent out of state for approximately 10 weeks to be trained as a polygraph examiner. Although there were no formal classes to attend at night and on weekends, the class required many hours of studying at night and on weekends, an average of 3-4 hours per night and 6-8 hours per day on the weekend to prepare for tests on Mondays. Is any of that time compensable under the FLSA or perhaps a state labor regulation? Does study/preparation time count as hours worked for overtime computation?

Answer: The Department of Labor seems (and the lines are a bit murky) to draw a line between study time and mandatory homework. Study time, even if necessary to participate meaningfully in the next day’s class, is viewed as non-compensable. Homework that required the employee to come up with some product for the class is more likely to be compensable.

From Nevada

Question: As Corrections Officers we are often requested to speak/interpret Spanish for arrestees. Sometimes this requires translating legal documents such as Temporary Protective Orders; Implied Consents for DUIs, and also asking questions for medical purposes. Are you required as a Spanish-speaking employee to communicate in a language which wasn’t part of the requirement when you obtained the job? If I have done this in the past as a courtesy, do I have to continue this type of communication without being paid for it?

Answer: This may surprise you, but there’s pretty strong case law out there that a law enforcement agency has a right to call on the special skills of its employees, even without paying them. There’s a case out of New York where a police officer got tired of translating and refused to do it. A court upheld a five-day suspension for insubordination. The answer from a union standpoint is to negotiate bilingual pay.

From Florida

Question: My Department recently changed the leave policy. It used to be that if an officer was on extended leave, another officer could take the day off even if it incurs overtime. Due to a budget crunch they have limited it so that if it would incur overtime the officer now cannot take leave, even though it is easy to get someone to cover the shift on overtime. Is this legal?

Answer: In most states, a change in the number of individuals allowed off on leave would be a mandatory subject of bargaining. As such, the employer could not make such a change without first discharging its bargaining obligation with the labor organization. If it failed to bargain over the issue after receiving a demand to do so from the labor organization, the employer would be committing an unfair labor practice.

This article appears in the May 2008 issue