Amicus Curiae Brief — Auer v. Robbins

/ Supreme Cour; U.S.

¥ PILED

AUG 27 1996

No. 95-897 CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

FRANCIS BERNARD AUER, et ai.,

Petitioners,

DAVID A. ROBBINS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF POLICE ORGANIZATIONS, INC.

IN SUPPORT OF PETITIONERS

William J. Johnson

General Counsel

National Association of Police Organizations, Inc.

750 First Street, N.E., Suite 1020

Washington, D.C. 20002

(202) 842-4420

Counsel of Record for Amicus Curiae

I. Law Enforcement Officers Who are "Subject to" Non-

Safety Disciplinary Suspensions for Periods of Less

Than a Full Work Period are Non-Exempt Hourly

II. The Nature of Modern Police Work Makes Imperative

That Law Enforcement Officers Not Be Subjected

to Excessive Tours of Duty in Any Given Period

TABLE OF AUTHORITIES

Cases Pages(s)

Abshire v. County of Kern, 908 F.2d 483 (9th Cir. 1990),

cert. denied, 498 U.S. 1068 (1991)... ....... 6, 7

Balgowan v. New Jersey Department of Transportation,

1996 U.S.App. LEXIS 12544,

3 WH Cases2d 524 (2d Cir. May 31,1996). ......... 7

Carpenter v. City of Denver,

-- F.3d --; [3 WH Cases2d 362] (10th Cir. 1996)... . . 7

Hit District of Columbi

23 F.34 429 DC. Gir. 1900)... 2. . cs ee 7

Martin v. Malcom Pirnie, Inc., 949 F.2d 611 (2d Cir. ete

cert. denied, 1135 S.Ct. 298 (1992)... ..........

992 F.2d 82 (6th Cir. 1993)... ...........00.0., 7

Mueller v. Reich, 54 F.3d 438 (7th Cir. 1995),

out. pendine, Cane No. 95-606... 1.55 He sw eee 7

Powell v. United S Cosutden fe *

399US. 4970199. 2... ko

Shockley v. Newport News,

997 F.24 18 (4th Cir. 1905)... ss ss ee 7

Cases (Cont.) Page(s)

ae 49

Statutes Page(s)

29 CFR. §§541 et seq (1996)... ssi«win 6,7

Fair Labor Standards Act of 1938, as amended,

29 U.S.C. §§201 et. seq. . Pat ... passim

EE ee 6

Other Authorities Page(s)

R. Aldag & A. Brief, Supervisory Style and Police Role

Stress, 6 Journal of Police Science and Administration 362,

a a.

S. Alkus & C. Padesky, Special Problems of Pclice Officers:

Stress Related Issues and Interventions,

11(2) Counselling Psychologist $5(1983).. 9,13

Cobb & Rose, Hypertension, Peptic Ulcer, and Diabetes

in Air Traffic Controllers, 224(4) Journal of American Medical

a a 10

G. Cooper, M Davidson, & P. Robinson,

Stress in the Police Service, 24 Journal of Occupational

et et cc te le ae

Other Authorities (Cont.) Page(s)

F. Graf, The Relationship Between Social Support and

Occupational Stress Among Police Officers, 14(3) Journal

of Police Science and Administration 178 (1986)... . . . 10

C. Maslach & S. Jackson, Burned-Out Cops

and Their Families, Psychology Today 59(1979). . . . _ . 11

G. Singleton & J. Teahan, Effects of Job-Related Stress on

the Physical and Psychological Adjustment of Police Officers,

6 Journal of Police Science and Administration 355. . . 10, 13

P. Reardon & M. O'Connor, Police Tactical Teams

Tempt the Fates Daily, Chicago Tribune,

ih Gs oS Gas ae eee ne as . 12

Department of Labor Brief, Martin v. Malcom Pirnie,

949 F.2d 611 (2d Cir.) (No. 6138), cert. denied,

werk Mee ee ee

STATEMENT OF INTEREST OF THE NATIONAL

ASSOCIATION OF POLICE ORGANIZATIONS

Amicus Curiae the National Association of Police

Organizations, Inc. (hereinafter "NAPO") submits this brief in

support of Petitioner Auer's arguments for reversal of the

judgement in this case of the United States Court of Appeals

entitled under the federal Fair Labor Standards Act of 1938, as

amended, 29 U.S.C. §§ 201 ef seqg., to overtime compensation

for certain hours worked.

NAPO is a nationwide association of labor and trade

enforcement officers. Among other entities, NAPO represents

the St. Louis Police Fraternal Organization, and, at the time of

the filing of this case, the St. Louis Police Officers Association,

Police Sergeants and Officers, respectively. NAPO represents

law enforcement officers throughout the state of Missouri, the

territory of the Eighth Circuit, and the United States. Through

its state and local affiliates; NAPO actively represents

approximately 190,000 sworn law enforcement officers

throughout the country. In 1994, NAPO founded the National

Law Enforcement Officers’ Rights Center, which advocates the

necessity of assuring fundamental due process and workplace

rights for law enforcement officers in the face of increasing

political pressures for the cost-cutting, as well as the

departments and officers.

NAPO has an important interest in this matter, as the

case presents issues the resolution of which will define the

extent to which law enforcement officers throughout the United

States will be entitled to receive the protections of the wage

and hour provisions of the Fair Labor Standards Act. A clear

enunciation of the scope and type of compensation which must

be provided as a practical matter to officers in this situation is

of tremendous importance to the constituent members of

NAPO.

NAPO has received the written consent of Petitioners

Francis Bernard Auer, ef al, and of Respondents David A.

Robbins, ef a/., to the filing of this brief as required by Rule

37.3 (a) of the Rules of this Court. The original copies of all

consents have been filed with the Clerk of the Court as required

by that Rule.

SUMMARY OF ARGUMENT

The men and women who serve our society as law

enforcement officers are today exposed to extremes of

violence, human misery, depravity, poverty and suffering of

innocents which is unimaginable to most persons and which

were for the most part foreign to police work as it was even 30

years ago. With the possible exception of combat veterans,

today’s police officer sees, and feels, and hears and smells more

carnage and trauma than any other professional.

The Fair Labor Standards Act of 1938 (hereinafter "the

FLSA") seeks to prevent the working of excessive tours of duty

by police by providing an economic disincentive for police

employers who might otherwise be tempted to work officers to

the point of exhaustion. This economic disincentive is

contained in the overtime provisions of the FLSA. 29 U.S.C.

§207. These FLSA provisions were designed to discourage

excessive working hours while at the same time promoting

fuller employment (it being less expensive to hire a new

employee at regular pay than to utilize an existing one at “time-

and-a-half").

Because the public relies so crucially upon law

enforcement officers in our democratic republic, the public's

welfare and safety is directly and indivisibly linked to the well-

being of our police. If officers and sergeant are worked to the

point of exhaustion, it is not only the officers or their partners

who will suffer. Common sense argues that drowsy or fatigued

officers will be more likely to commit errors and mistakes than

well-rested colleagues. In a profession which calls for

alertness, the ability to observe, critical reasoning and

judgement regarding the application of force even to the point

of discharging a firearm, decreased awareness is a recipe for

public disaster. Othe »rofessions upon which the public

heavily relies for its safety are thoroughly regulated by the

federal government with regard to the number of hours an

employee may work in any given period of time. Because the

public would be placed at least as greatly at risk by over-

worked police officers as they would be by fatigued pilots,

train engineers or truckers, the FLSA's protections should

extend to police officers for the benefit of both officer and

public alike.

ARGUMENT

L LAW ENFORCEMENT OFFICERS "SUBJECT

TO" NON-SAFETY DISCIPLINARY SUSPENSIONS

FOR PERIODS OF LESS THAN A FULL WORK

PERIOD ARE NON-EXEMPT HOURLY EMPLOYEES.

The scope of the Fair Labor Standards Act was meant

to be extremely broad. Congress realized that in order to

prevent circumvention of the rule most employees needed to

fall under its coverage. "Breadth of coverage” is vital to [the

Act's] mission." Powell v. United States Cartridge Co., 339

U.S. 497, 516 (1950). This is precisely why exemptions are to

be read in the most narrow sense. When claiming an

exemption to the Act “the employer has the burden of proof,

. . they must show that the employees fit plainly and

unmistakably within [the exemption's] terms.” Abshire v.

County of Kern, 908 F.2d 483, 485-86 (9th Cir. 1990), cert.

denied, 498 U.S. 1068 (1991).

The major exemptions to the FLSA exist for bona fide

executive, administrative, or professional employees. 29 U.S.C.

$213(aX(1). The Secretary of Labor has broad power to define

and limit these terms. Id. The Secretary has defined these

exemptions in two ways. First, the duties of bona fide

executive, professional and administrative employees are set

forth in the Secretary's regulations executing the Act. See 29

C.F.R. §§541.1, .2, .3. Secondly, a bona fide professional,

executive, or administrative employee must be paid a minimum

weekly salary and must be paid it on a salary basis. See 29

C.F.R. §§541.1 (f), 541.2(e), 541.3(e).

An employee fails the salary basis test if pay penalties

of less than a full pay period's salary are imposed upon the

employee for reasons other than a major safety violation. 29

C.F.R. §541.118 (a)(S). The regulations state that these safety

rules include “only those relating to the prevention of serious

danger to the plant, or other employees." Id. The deductions

in the case at bar did not fall within these exemptions.

The Department of Labor (DOL) prior to this case has

also ruled that, even if no deduction has yet been made, as long

as the employee is subject to a non-safety related disciplinary

pay docking for periods of less than a full work period they are

to be considered hourly employees who may not be exempted

from FLSA coverage. The Second, Third, Fourth, Sixth,

Seventh, Ninth, Tenth and D.C. Circuits have followed this

practice and recognized the rule that an employer's policies

making an employee's compensation "subject to" deduction and

not actual deductions is determinative, and thus cause for

denying an exemption. See Yourman v. Dinkins, 3 WH

Cases2d 524 (2d Cir. 1996); Martin v. Malcom Pirnie, Inc., 949

F.2d 611 (2d Cir. 1991), cert. denied, 1135 S.Ct. 298 (1992);

Balgowan_v. New Jersey Dept. of Transportation, 1996

U.S.App. LEXIS 11353, 3 WH Cases2d 488 (3d Cir. 1996),

petition for rehearing pending, (1996); Shockley v. New port

News, 997 F.2d 18 (4th Cir. 1993); soe 7 name veg 4

F.2d 82 (6th Cir. 1993); ee a

1995), cert, pending, Case No. 95-586, Abshire v. County of

Kern, 908 F.2d 483 (9th Cir. 1990), cert. denied, 111 S.Ct. 785

(1991); Carpenter v. City of Denver, --- F.3d ---; [3 WH

Cases2d 362] (10th Cir. 1996); Hibert v. District of Columbia,

23 F.3d 429 (D.C. Cir. 1993). In Martin, for example, the DOL

explained that its regulations provide that simply being

“subject to" a docking is sufficient to prove hourly, rather than

salaried status. Martin 949 F.2d 611 (2d Cir. 1991) cert.

denied, 1135 S.Ct 298 (1992). The DOL particularly supported

the Abshire court's adoption of a narrow reading of the

exceptions to the salary basis rule:

"The Abshire court reject[ed]

defendant's argument that employees are

salaried because no deductions were actually

‘it is the potential for reduction that destroys

exempt status." Department of Labor Brief,

Martin v. Malcom Pirie, 949 F.2d 611 (2d

Cir.), (No. 6138), cert. denied, 1135 S.Ct. 298

(1992) at 19-20 (emphasis in original) (see also

p. 23 where DOL argues "subject to" cases are

consistent with regulations).

As a result, if the Court follows the prior guidance of the DOL,

being subject to a pay docking of less than one week will

disqualify an employee from exempt status.

Any officer “subject to" pay docking should be

considered an hourly employee. If the Court were to follow the

opposing view that the docking must take place to revoke the

exemption the result would be irrational. In effect the Court

would be saying that in order to be eligible for hourly status,

the employee would have to be first docked in (hourly) pay.

This is not the type of incentive the Act was written to

promote. The Court need only look to the DOL's previous

regulations to see that an employee's being “subject to" pay

docking of less than a full pay period is contrary to the

definitional status of an employee with an executive,

administrative or professional exemption.

IL. THE NATURE OF MODERN POLICE WORK

MAKES IMPERATIVE THAT LAW ENFORCEMENT

OFFICERS NOT BE SUBJECTED TO EXCESSIVE

TOURS OF DUTY IN ANY GIVEN PERIOD OF TIME.

"An American law enforcement officer encounters

more human tragedy in the first three years of his career than

most of us see in a lifetime." E. Scrivner, Psychological

Reactions to the Use of Deadly Force, Nat'l Sheriff Mag.,

Feb./Mar. 1985.

Police work embraces that which is most noble about

the human condition. It extols service to others; it values

protection for the weak; it commits itself to justice and it

rewards bravery and sacrifice. At the same time, however, that

we demand that our police officers follow these lofty ideals,

they often serve in the very abyss of human cruelty and

depravity. No one knows better than a police officer the evil

that men can do. The extent of man's capacity to do wrong is

such that even a veteran of police work can be shocked by what

he or she sometimes sees. And hears. And touches. Yet

however strong the feeling of repulsion, however great the urge

to flee or to ignore, the officer has sworn an oath to do his or

her duty.

It is the officer who must try to revive the obviously

dead infant. It is the officer who must deliver the terrible news

a —s

pe

—_ee

ee it A I ase A ene ne

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that a spouse has been killed. It is the officer who crawls into

the canal to pull out the grotesquely disfigured body. It is the

officer who holds and tries in vain to comfort the violated

child. It is the officer who is so often despised by others

simply because of the job he or she does. It is the officer who

sacrifices so much of family life and relationships for "the

Job". It is the officer who is so frequently the target of

violence even unto death.

Because law enforcement officers face such daily

tragedy, they are subjected to tremendous amounts of stress.

In fact, many studies consider police work one of the most, if

not the most, stressful occupation in the United States. Alkus

and Padesky, Special Problems of Police Officers: Stress

Related Issues and Interventions, 11(2) Counselling

Psychologist 55-62 (1983). The causes of the stress extend far

beyond the inherent danger of apprehending criminals.

Excessive hours, unreasonable amounts of paperwork,

organizational practices such as poor supervision and direction,

and judgments offered by a hostile public are often cited by

police officers as the causes of their stress. Graf, The

Relationship Between Social Support and Occupational Stress

Among Police Officers, 14(3) J. Police Science and

Administration 178-186 (1986).

In many instances, even when an officer is working less

than the FLSA's maximum allowable "straight time", the

amount of stress reaches unhealthy proportions. It is generally

accepted by the medical community that increased stress is

associated with poorer physical and mental health. Numerous

studies link the frustration caused by prolonged stress with

increased heart rate and systolic blood pressure as well as

actual tissue damage. Cobb & Rose, Hypertension, Peptic

Ulcer, and Diabetes in Air Traffic Controllers, 224(4) J. Amer.

Med. Assoc. 489 (1973). "Such stress-related health problems,

as judged by morbidity and mortality figures, occur more with

police officers as a group than most other occupations. Alkus

at 55. Even more disturbing is the fact that the suicide rate for

police was approximately twice that for lawyers and judges

(two high risk groups) and that the death rate from

cardiovascular disease was also significantly higher. Singleton

& Teahan, Effects of Job-Related Stress on the Physical and

Psychological Adjustment of Police Officers, 6 J. Police

Science and Administration 355 (1978).

It appears that sergeants are particularly susceptible to

the effects of stress. They often work long hours and are

saddled with a heavy workload. Cooper, Davidson, and

Robinson, Stress in the Police Service, 24 J. Occup. Med. 30-

36 (1982). Many departments, in an attempt to avoid paying

overtime to patrol officers (hourly workers), force sergeants

(salaried employees) to shoulder the excess work. In many

instances the excess is significant. Such practices not only hurt

the force, but also circumvent the purpose of the FLSA which

is a equitably shorter uniform hour standard for law

enforcement.

The toll of stress unfortunately is not limited to physical

ailments. The tribulations of police work also exact a

psychological toll on the officer. Extended exposure to stress

causes the officer difficulties both on the job and at home.

Over time, a officer working in such a constantly stressful

situation may begin to distrust and even dislike the people he

or she is sworn to serve and protect, and even wishing they

10

would "get out of my life". Maslach and Jackson, Burned-Out

Cops and Their Families, Psychology Today, 59 (1979). This

response is a protective device: it reduces emotional attachment

and thus stress, but also has the consequence of seriously

impairing the officer's quality of human contact both on and off

the job. Id. This is a serious problem in a field that deals with

the public by definition. The result of burnout on a given

department can range from low morale and performance to

absenteeism and high job turnover. In any event, it is clear that

the result is not a positive one.

An officer greatly affected by stress transfers his or her

distant nature to his or her homelife. "In the high-burnout cop's

family (assuming a male officer), the children are four times as

likely to look exclusively to their mother for support. The man

is twice as likely to report feeling distant from the children.

The alienation between the officer and the children is often

mirrored between the officer and the spouse." Id' A major

problem is that the officer won't tell his or her spouse about the

daily stress of the job, either to protect the spouse, or just as

likely to avoid reliving the stress himself. As one officer

stated, "The stress of the job is so bad sometimes, [one officer]

said, that he stays an extra hour at work, just to cool down,

before going home. ‘A lot of times, I don't tell my wife

everything, the most dangerous parts,’ he said." P. Reardon &

M. O'Connor, Police Tactical Teams Tempt the Fates Daily,

Chicago Tribune, Jan. 9, 1991, at 1-2.

It is obvious not only to medical experts but even to the

casual observer that long hours of stressful duty have a

negative effect. Congress has also recognized the need for

limited work hours for police. As the developmental history of

11

the FLSA has demonstrated, one of the primary factors in

reducing law enforcement work hours to their present level was

the concern that working longer hours than those prescribed

would have a detrimental effect on the officer, both on the job

and at home. It seems clear, then, that the number of maximum

allowable "straight-time" hours set forth in the public safety

worker provisions of the FLSA was selected for the specific

protection of police workers and should thus be strictly

observed.

Il, THE WELFARE AND SAFETY OF THE PUBLIC

DEPENDS UPON POLICE OFFICERS NOT BEING

COMPELLED TO WORK EXCESSIVE HOURS.

The stress associated with an officer's job also affects

his or her interactions with the public. Excessive stress is has

been shown to bring about low work motivation which is

associated with poor quality and quantity of work. Aldag,

Supervisory Style and Police Stress, 6 J. Police Science and

Administration 362-67 (1978). Excessive hours and the stress

associated with them produce in officers attitudes of

defensiveness, suspiciousness, and the feeling that outSiders do

not understand police problems. Singleton at 359. Such

attitudes have been shown to create classic “fight or flight"

responses in officers. Alkus at 58. Fight or flight is

characterized by officers who, when confronted with a situation

requiring active intervention, react with either overzealous or

avoidance behavior. In either case the response is not

conducive to appropriate police work. “

Out of the two responses, overzealousness is more

12

prevalent. It is also a more dangerous response both for the

officer and the public. Overzealousness due to prolonged

stress is often typified by risk-taking behavior by the officer,

such as entering a home without assessing the danger or

forgetting to call for backup. Alkus at 59. It has been

hypothesized that possession of the above attitudes increase the

probability that an officer will be involved in an injurious

physical attack with possible lethal or near lethal consequences

to self, partner, or suspect. Singleton at 359. In fact, many

instances of excessive force used against suspects are

manifestations of prolonged stress and overwork. Alkus at 59.

The second response to prolonged stress is avoidance.

Simply put, this behavior is exhibited where officers take

actions to reduce or completely avoid stress. Avoidance is

illustrated through the deferring of decisions, ignoring the

wishes of subordinates and peers in strict deference to those of

superiors, becoming overly formal in relations with others,

resorting to deceptive practices, or by the adoption of any

number of avoidance mechanisms. Aldag at 367. The result is

an officer who, instead of attempting to improve his or her

performance and that of those surrounding him or her, is

seeking to just go through the motions to the detriment of the

public.

As has been clearly displayed the effects of stress

associated with long hours of police work are not limited only

to the wilicer but impact the public as well. An officer

public to a greater risk of injury due to either the officer's

increased risk taking or use of excessive force. On the other

hand, the public also suffers at the hands of officers plagued

13

with an avoidance disorder. This type of officer will refrain

from acting on the public behalf unless action is totally

unavoidable. In order for police to continue to serve the public

interest to the fullest degree stress must be reduced through

strict adherence to the FLSA's economic restrictions on

maximum allowable hours for police employees.

For the foregoing reasons, amicus curiae the National

Association of Police Organizations, Inc. respectfully requests

that the Court reverse the judgement in this case of the United

States Court of Appeals for the Eighth Circuit.

Respectfully submitted this 22nd day of August, 1996,

William J. Johnson

General Counsel

National Association of Police

750 First Street, N.E., Suite 1020