Question: Do you have any information on department policies regarding tattoos, brandings and piercings being visible while an officer is on duty?
Answer: We know of no cases on the issue. We are aware that many departments have required that officers cover tattoos while on duty. We do think it clear that such orders are enforceable. The real debate is whether a department’s orders can extend into an officer’s off-duty life. The one case on the issue, Rathert v. Village of Peotone, 903 F.2d 510 (7th Cir. 1990), holds that a police department in a small town can ban off-duty officers from wearing ear studs. Whether Rathert would be applied anywhere else in the country 20 years later is anyone’s guess.
Question: Our department’s lieutenants are exempt from the FLSA and are currently addressing some issues with our superiors that we feel may be FLSA violations. (1). Lieutenants are required to work 40 hours weekly (most work 50-60). HR has supported this definition of our workweek. With this, we typically put in leave requests (vacation, sick) for partial days when we have worked the rest of the day. (2). We work shifts in the Patrol Section, 11-hour days with a one-hour lunch (we must remain available throughout). Officers and Sergeants work a 10-hour shift with the same stipulation of availability. (3). We are mandated to work holidays without any additional compensation. We can take the holiday off only when we get another lieutenant to cover for us. (4). We are allowed to work extra duty (off-duty, in uniform) for straight-time, hourly. (5). We are not allowed to flex our hours off to work extra duty.
Answer: In the absence of a labor agreement, and if your lieutenants are truly exempt under the Fair Labor Standards Act, none of the practices you describe would violate any federal law. Unless an employee is eligible for coverage under the FLSA, the employer is generally free to require those employees to work lengthy hours without any additional compensation.
Question: We have a female officer who recently learned that she is pregnant. Our department temporarily reassigned her to an office position for the duration of the pregnancy. She is allowed to wear dress attire and not a uniform and she handles phone reports and walk-in reports. Most officers in the department are in complete agreement with this and feel, as she does, that it is a benefit to any future pregnant officers that the department have this consideration. There are officers who feel that because she is a woman she should not get any extra consideration until the maternity leave guidelines come into play. What sources can I cite in making the argument that she should not be on the street at risk?
Answer: Many police departments have policies like the one you describe. Such policies are voluntary, and are not mandated by federal law. The most applicable law on the issue, the Pregnancy Discrimination Act, only requires accommodation of a woman’s pregnancy during the period of “disability” associated with a pregnancy. It’s possible that Montana has some statutes that pertain to this issue; we’d recommend you check with a local lawyer on this issue.
This article appears in the March 2011 issue.