Q & A

From Michigan

Question: How is retroractive pay figured? Having been without a contract for nearly five-and-a-half years there have been discussions on how retro pay will be fugured. It appears that we will be getting around 2% a year. Can you give us an example as to how it will be figured?

Answer: With one exception, the computation of retroactive pay increases is purely a matter of contract by the parties. Subject to that exception, the parties are free to calculate retroactivity over part or all of the period of an expired contract, to either calculate or not calculate retroactivity on percentage-based premium pays, and to either pay or not pay retroactivity to retired or otherwise terminated employees.

The one exception is that if retroactivity is paid, the Fair Labor Standards Act demands that all FLSA overtime be recalculated to include the retroactive wage adjustment.

From Pennsylvania

Question: My police department is enacting a “No Fraternization Policy.” Several questions have come up on this policy. (1) Can a police department enforce this policy on officers dating officers? (2) Can a police department enforce this policy on officers dating supervisors? (3) Can the police department enforce this policy if the officer/officer or officer/supervisor relationship existed prior to the policy implementation?

Answer: Though the law will vary from state to state on this, the usual rules are that: (1) Changes in fraternization policies concern mandatory subjects of bargaining, which mean they cannot be unilaterally altered by an employer without complying with whatever collective bargaining process exists; and (2) assuming collective bargaining obligations (if any) have been met, fraternization policies of the sort you describe almost certainly do not violate the “privacy” and “free association” clauses in the United States Constitution.

From Minnesota

Question: I am on our Union board and am assigned to a committee to create a policy to run all extra duty police work through the Department. In researching other cities in the country, I have found a few that charge a lower rate for extra-duty employment (a private business such as a bar, or bank hiring a police officer for security type detail). Would this be an FSLA violation? We are considering a $36 flat rate for all officers, rather than their normal overtime rate.

Answer: Under Section 207(p) of the FLSA, an employer is allowed a great deal of latitude before off-duty work is chargeable against it. The employer can facilitate its own officers performing the work, set the rate for the work, and even choose which employees perform the work, all without an FLSA problem. There are a couple of cases involving Section 207(p) that your lawyers should look at. One involves the Chicago PD and the other a metro police agency in the Kansas City area; each of the cases involves officers working off duty for a local housing authority.

From Nevada

Question: With the economic downturn, there has been talk of layoffs for city employees. The City has a provision that if you have previously worked in a position they will try to place you back in that particular position and lay off a less senior employee. We have two public safety divisions under two separate collective bargaining units. Does a bargaining unit have any recourse to protect their “current” members and reject the members that have transferred into a new association, under a different CBA?

Answer: This sort of question is usually handled by the layoff clauses in the contracts of each of the bargaining units. We’ve seen clauses that would deny promoted employees bumping rights, and we’ve also seen clauses that would specifically preserve bumping rights for promoted employees. In the absence of either, our general take would be that promoted individuals would have the right to bump back into their former positions, though obviously past practice and bargaining history would play a big part in the result.

This article appears in the May 2009 issue