In 1997, the Baltimore County Police Department and the County’s Board of Education entered into an agreement to establish in County middle schools and high schools the position of school resource officer (SRO). An SRO was a full-time uniformed police officer who was assigned to work in a particular school during the academic day where he or she ensures a safe learning environment, establishes positive relationships with students, works cooperatively with school personnel to prevent disruptive conduct, and performs other duties.
An additional aspect of the SRO’s duties concerns the practice of using County police officers to provide security during after-hour school events such as dances and athletic contests. An SRO is expected to attend extracurricular events at his or her high school when feasible, and personally to arrange for colleagues to work such events in the absence of the regularly assigned SRO. When the SRO, or the officer substituting for him or her, works school events after hours, the officer is not compensated at the Fair Labor Standards Act (FLSA) time-and-one-half overtime rate; rather, the officer is paid a flat wage of approximately $32 an hour, which is paid by the Board of Education.
A group of Baltimore County police officers along with Lodge 4 of the Fraternal Order of Police (FOP) brought an FLSA lawsuit against the County, alleging that their off-duty work should be compensated at the FLSA’s overtime rate. Both the County and the FOP filed motions for summary judgment, essentially claiming they were entitled to win without trial. A federal district court rejected both sides’ arguments, and set the matter for trial.
The key question was whether, under the FLSA and the regulations adopted by the Department of Labor, the Board of Education was a “separate and independent employer.” If it was, then the off-duty work could be compensated at a rate other than the FLSA’s overtime rate.
The Court found that the factors relevant to assessing whether the Board of Education was “separate and independent” included (1) whether it and the County had separate payroll systems; (2) whether the two employers had separate retirement systems; (3) whether the employers had separate budgets and funding authorities; (4) whether the employers were separate legal entities with the power to sue and be sued; (5) whether the employers deal with each other at arm’s length concerning the employment of the individuals in question; (6) how the employers’ relationship is treated under state law; and (7) whether one employer controls the appointment of the officers of the other agency.
In the Court’s eyes, “the circumstances of this case illustrate that a reasonable fact finder’s decision of how to balance the many relevant factors could reasonably yield a result in favor of either party. The FOP points out that the School Board receives 54 percent of its funding from the County, must have its budget approved in 13 distinct categories by the County, and is characterized as a dependent agency by the Census of Governments. Yet, supporting the County’s contention that it is separate and independent from the School Board are the facts that the two entities have separate payroll and retirement systems, and, under state law, are clearly separate legal entities, each with the authority to sue and be sued. In sum, there is substantial evidence to support either decision a fact finder might make on the separate and independent issue and in that light, summary judgment on the special detail issue is inappropriate.”
Baltimore County FOP, Lodge 4 v. Baltimore County, 2008 WL 2780876 (D.Md. 2008).
This article appears in the September 2008 issue