The City of Fort Worth owns several facilities, including the Fort Worth Convention Center and the Will Rogers Memorial Coliseum. The City allows its police officers to perform special duty work in uniform. Although the City approves the application of officers who wish to be included on the off-duty assignment list, once an officer’s name is on the list, he or she decides whether to accept or reject a particular off-duty assignment.
The City leases or rents its facilities to public and private third parties known as licensees. The types of events conducted by licensees include a charity ball, a bridal show, dog shows, a miniature horse show, concerts, corporate gatherings, and similar functions. Prior to renting or leasing the facilities, a licensee must enter into a written contract with the City. The contracts require the licensees at their “sole cost and expense” to provide security personnel comprised of “off-duty Fort Worth police officers.”
The City determines the minimum number of off-duty officers required for an event; however, the licensee is then afforded an opportunity to provide input as to its specific requirements. Licensees are responsible for paying the off-duty officers directly. On the majority of occasions, the licensees issue checks, drawn on the licensees’ bank accounts, directly to the officers who perform the off-duty assignments. On occasion, a licensee has issued a single payment to the Fort Worth Convention Center, which then paid the individual officers.
A group of Fort Worth police officers sued the City, contending that under the Fair Labor Standards Act (FLSA), the time spent working on special duty details at the City’s facilities should be counted as work for the City. A federal trial court disagreed, and dismissed the lawsuit.
The case was governed by section 207 (p) of the FLSA. Section 7(p) provides that “if an individual is employed in law enforcement activities and who, solely at such individual’s option, agrees to be employed on a special detail by a separate or independent employer in law enforcement, the hours such individual was employed by such separate and independent employer shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation.”
In the Court’s judgment, the licensees were truly “separate and independent employers” covered by Section 7(p). The Court held that “the officers cite a list of facts they contend demonstrates that the City is the true off-duty employer, and maintain that although the regulations naturally envisioned the Police Department playing a role in facilitating off-duty employment,” it is the City’s facility management and public events directors, not the Police Department, that control the off-duty assignment process.
“The regulations foreclose the officer’s argument, as they expressly contemplates that the primary employer – not limited to a Police Department – may facilitate off-duty assignments or affect the conditions of off-duty employment, including selecting officers to participate, negotiating their pay, and requiring certain standards of conduct. All of the acts which the officers contend prove that the City is the off-duty employer are reasonably within the bounds of the Department of Labor’s regulations, and do not raise a fact issue that the City is the off-duty employer.
“The officers also point to the City’s practice of providing workers’ compensation coverage for officers working off-duty assignments as proof that the City is the off-duty employer. This fact is immaterial, as the Department of Labor has approved such a practice under similar circumstances.”
Clark v. City of Ft. Worth, 2011 WL 3268110 (N.D. Tex. 2011).
This article appears in the December 2011 issue.