Q & A

From Arizona

Question: Under current DOL rules and court cases can an agency tell/order an officer or civilian employee to use comp time to get below what policy says is the maximum allowed, which is far below what the FLSA prescribes?

Answer: In Christensen v. Harris County, Texas, 529 U.S. 576 (2000), the Supreme Court held that the FLSA’s compensatory time off provision, § 207(o)(5), “is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper inference is that an employer may not, at least in the absence of an agreement, deny an employee’s request to use compensatory time for a reason other than that provided in §207(o)(5). The law simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay. At bottom, we think the better reading of §207(o)(5) is that it imposes a restriction upon an employer’s efforts to prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer’s efforts to require employees to use compensatory time.”

From Wisconsin

Question: Do you know of any law enforcement departments that have a merit-based pay system? Do you know of any literature pro and con?

Our department just finished with a consulting firm that reviewed the entire county pay system recommending merit pay. I immediately see the problems with this idea.

Answer: We don’t know of any pure merit-based pay systems for law enforcement personnel. Some agencies have tried, but the systems have run into difficulties.

The problem is that law enforcement is a service business, one where objective quantifiers of performance are hard to come by or are politically unpalatable. A merit pay system based in part on arrests or citations, for example, would likely quickly run into public opposition on a number of scores. Even what would seem to be straightforward criteria get complicated. For example, the lack of citizen complaints could well be an indication that an officer is doing his/her job well, but could also mean that the officer is not engaging in self-initiated activity. Along the same lines, while a low sick leave utilization might superficially make sense as a component of a merit pay system, it could also run afoul of the protections of the Americans With Disabilities Act and/or the Family and Medical Leave Act.

It’s possible, of course, to have a limited merit pay system that would not invoke much debate or controversy. The question is whether such a system would truly accomplish what it sets out to do – reward superior performance. That sort of system may exist; we just haven’t seen it yet.

From Montana

Question: Does your employer have to disclose and grant inspection of all documents and interviews of witnesses prior to conducting an administrative interview of a focus employee? If so, what Federal or State laws or court decisions mandate this?

Answer: We know of no federal law requirement requiring the advance disclosure of documents before an administrative interview. There might be something in Kansas state law requiring such a disclosure, or perhaps a requirement of a collective bargaining agreement. However, the fundamental principles of procedural due process at the federal level do not require such a disclosure.