Amicus Curiae Brief — Auer v. Robbins

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

No. 95-897 f

In The

Supreme Court « the Hnited Pietes" 8

October Term, 1995 AUG 27 1996

FRANCIS BERNARD AUER, ef ai., CLERK

Petitioners,

vs.

DAVID A. ROBBINS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE INTERNATIONAL UNION

OF POLICE ASSOCIATIONS, AFL-CIO, GRAND

LODGE OF THE FRATERNAL ORDER OF POLICE

AND THEIR AFFILIATES IN SUPPORT

OF PETITIONERS

THOMAS T. RUTHERFORD RICHARD COBB

Chief Legal Counsel to the Counsel of Record

Grand Lodge of the Fraternal Office of General Counsel, IUPA

Order of Police and Houston Police Patrol

320 Gold Street S.W. Union, IUPA, AFL-CIO

Suite 1000 811 North Loop West

Albuquerque, NM 87103 Houston, TX 77008

(505) 842-6700 (713) 864-2925

NIKI MARTIN LAURIE EGGERT

Associate FOP Counsel Office of General Counsel, IUPA

150 Juniper Road and Milwaukee Police Association,

Placitas, NM 87043 IUPA, AFL-CIO

, ADELMA

Attorneys for Amici Grand pyre ee ate ”

Lodge Fraternal Order of 1840 North Farwell Ave., #403

Police and Their Affiliates Milwaukee. WI 53202

Attorneys for Amici International

Union of Police Associations,

AFL-CIO and Their Affiliates

Rats

QUESTIONS PRESENTED

1. The FLSA Post-1991] Salary Basis Test & The Public

Sector. Does the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 201 et seq., salary basis/disciplinary docking test, 29 C.F.R.

- §541.118(a)(5), remain applicable in the public sector after the

Department of Labor’s 1991/1992 revision of 29 C.F.R.

§541.5d?

2. The FLSA Salary Basis Pay Docking Rule: “Subject to”

or “Actual.” Does a clear, intentionally established,

disciplinary code subjecting employees to non-safety discipline

for less than a full pay period prevent exemption under 29C.F.R.

§ 541.118(a)(5)?

3. The FLSA Salary Basis “Window of Correction”. Is

employer entitlement to the 29 C.F.R. §541.118(a)(6) “window

of correction,” which permits an employer to escape the loss of

an FLSA exemption for impermissible pay deductions, limited

to cases where there is (a) actual inadvertence, (b) full

reimbursement immediately upon discovery, and (c) full

revocation of all code, rules, practices or procedures subjecting

the employees to impermissible deductions?

TABLE OF CONTENTS

Questions Presented .....cccscoseccsecseseueesenn

Table cf Comtemts 2. cscsccccuccesesscvesseuuanen

Table ef Citations... cccsccvcccescceseuubeemeenee

The Interest of the Amici Curiae FOPandIUPA .......

Statement of the Case 2... ccccccccccsccevsesvesuen

ALBUMOR 2. ccccccccvccvecsccsccsssesseeeeeueene

I. The Fair Labor Standards Act and Its Salary Basis

Test Are a Safety Measure in Law Enforcement.

A. Crime and Crime Fighting Strategies, Hours

of Work, and Law Enforcement Stress. ....

B. TheCongressional Design of the FLSA Hours

of Work Standard for Law Enforcement. ..

C. FLSA Dual Goals of Expanded Work Force

and Improved Working Conditions. ......

II. The Salary Basis Test Is a Crucial Component to

Preserving the National Hours of Work Standard

for Law Enforcement Officers. ..............

A. The Salary Basis Test and Its Disciplinary

Docking Rules: Reasonable Standards, anda

Necessary, Objective Test of Exempt Status.

*eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Page

iii

Contents

Page

B. The “Subject to” Docking Rule in 29 C.F.R.

§ 541.118(a)AsAPractical Matter ....... 24

C. The “Window of Correction” and Voluntary

Employer Compliance. ................ 27

tt tee eCeRe at ebedebbovddeccecoveccces 28

TABLE OF CITATIONS

Cases Cited:

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

cert. denied, 498 U.S. 1068(1991) ............... 24

Ahern v. New York, 807 F. Supp. 919(N.D.N.Y. 1992) .. 2

Amshey v. United States, 26 C1. Ct. 582 (Fed. Cl. Ct. 1992)

PERSE bSURb ONES Ce oesecoeséccoeseses 2,6

Atlanta Professional Firefighters v. Atlanta, 920 F.2d 800

EEE EE OS 25

Avery v. Talladego, 24 F.3d 1337 (11th Cir. 1994) ..... 25

Balgowan v. New Jersey Dept. of Transportation, slip op.

95-5276, 1996 U.S. App. LEXIS 11353 (3d Cir. 1996),

vacated pending reh'’g ... 6.66 c cece cen ennunes 23,24

Bankston v. Illinois, 60 F.3d 1249 (7th Cir. 1995) ...... 5

Barrentine v. Arkansas-Best Freight Systems, 450 U.S.

DT AEieeeeesbaodseseboocesecceecoecccce 16

Contents

Carpenter v. Denver, 82 F.3d 353 (10th Cir. 1996), cert.

GORGE oc ccescscacccdccéccepbedebotbedbatoace

Clancey v. Alexandria, 720F. Supp. 1230(E.D. Va.), aff'd,

912 F.26 463 (4th Cie. 1908)... ce ccccvccccccces

DeBraska v. Milwaukee, Case No. 96-C-402 (E.D. Wisc.)

GISSD RENEE 0 vc cccccdccovecodesdnbcdouccesns

Garcia v. San Antonio Metropolitan Transit Authority, 469

DE FS EIOEED 0 ccncncvccctesecsensusesvteebuc

Holden v. Hardy, 169 U.S. 366(1898) ...............

Howley v. Walker, 232 U.S.718(1914) ..............

Hurley v. Oregon, 27 F.3d 392 (9th Cir. 1994) ........

Jaffee v. Redmond, __ U.S. ___, 1168. Ct. 1923 (1996) ..

Jones v. Donovan, slip op. 79-2973, 25 W&H Cases 380

(D.D.C. 1981), aff'd mem., 675 F.2d 1340 (D.C. Cir.

SEED occckcocedennewessaceenacseaenasesbanes

BEGED cccconeccestabéncndehdsevodboneeeedets

Michigan Ass'n of Government Employees v. Michigan

Page

Dep't of Corrections, 992 F.2d 82 (6th Cir. 1993) ... 24,26

Milwaukee Police Association v. Milwaukee, Case No. 88-

CGR Ce, CUED dcdcédecdédechtdedeecds

Contents

Moreau v. Klevenhagen, 508 U.S.22(1993) ..........

Muller v. Oregon, 208 U.S.412(1908) ..............

National League of Cities v. Usery, 426 U.S. 833 (1976)

Overnight Motor Transportation Company, Inc. v. Missel,

POP OMOEEDTED 66s cdbndwevedivscocssddeive

Powell v. United States Cartridge Co., 399 U.S. 497

SED edbRskcwsucecedecibeedvascdaséoedenans

PPOAv. Los Angeles County, Case No. Civ.91-1772 WIR

(GHKX) (C.D. Cal. April 13,1992) ..............

Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)

Rutledge v. Jackson, Case No. J87-0342(W) (S.D. Miss.

LR RE Tenet CESS ge” Salen eee

Shockley v. Newport News, 997 F.2d 18 (4th Cir. 1993) .

Tony and Susan Alamo F oundation v. Secretary of Labor,

Gee Se ED. bobo ck been cecstect¥sdetecns

United States v. Darby, 312 U.S. 100(1941) ..........

Walling v. Youngerman-Reynolds Hardwood Co., 325

Pe GED 0 bn cb cccccsnccdéesecvbectecsiee

Contents

Page

Wilson v. New York, 243 U.S. 332(1917) ............. s

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

pending (Case No. 95-586) .........-.--ee seen 23

York v. Wichita Falls, 994 F.2d 236 (Sth Cir. 1991) ..... 24

Yourman v. Dinkins, slip. op. 95-7561, 1996 U.S App.

LEXIS 12544 (2d Cir. 1996), cert. pending ........ 24

Statutes Cited:

PGB. OG FBR GOR ccccdvccsvccvcccccsocvecees i

SPE cc cécccduadocdedenaioecned 3, 16, 18,19

SPE OED ncciccsesautatescsdsdaseutines 18,19

PO BONED ccc cdvdccotcccbduecewucececbscee 18

TUBE. CAD o6cbcccccdadcoccecnsvcdekdseds 4,5

BR, GREED wictddcndeddbcetwoneusandeds es 16

P.L. 99-150, 99 Stat. 790 (1985) .... 2.2... cece ene 17

Other Authorities Cited:

Anson, and Bloom, Police Stress in an occupational

context, 16 Journal of Police Science and

pe Pre Te ee 13

vii -

Contents

Blum, “Final Report Milwaukee Police Association,

Interest Arbitration Hearing, City of Milwaukee 1994/

1995 Labor Contract,” 1994 .............0cccues

Blum, “The Impact of Hours of Work On Police Officers,”

GUD bbb Shed ben ctaSda Shits ceveescucccescccccs

Colligan, “Extended Work Hours and the Compressed

Work Week,” National Institute for Occupational

Safety & Health (1984) .................0.0005.

Cooper, Stress in the Police Service, 24 Journal of

Occupational Medicine (1982) ..................

French, A Comparative Look at Stress and Strain in

Policemen in Job Stress and the Police Officer:

Identifying Stress Reduction Techniques (1975) ....

Goldstein, Problem Oriented Policing (1990) ........

Goldstein and Susmilch, The Problem Oriented Approach

to Improving Police Service, AProject on Development

of a Problem Oriented Approach to Police Service

GENER och ncwedececetwantvasasdédsccoseyceces

Green and Mastrofski, Community Policing: Rhetoric or

SEED ocho edcmesded bicecdeeeeecbaceese

Greller, Police Stress: Taking a Department-Wide

Approach to Managing Stressors, The Police Chief

ERED cb ddvdadceccddeonddesGecdeveddisiscces

Page

13,14

vill

Contents

Grencik, The Physical Fitness of Deputies Assigned to

Patrol Function and its Relationship to the

Formulation of Entrance Standards, LEAA Final

MaMSTECEGTS) oc ccccvccccccccvccccsewesssesess

Grenrick, Towards an Understanding of Stress in Job

Stress and the Police Officer: Identifying Stress

Reduction Techniques (1975) ........65500020005

Hageman, Occupational Stress of Law Enforcement

Officers and Marital and Familial Relationships, 6

Journal of Police Science and Administration (1978)

Hageman, Responses of Police Rookie Officers to Stress,

10 Journal of Police Science and Administration (1982)

Heiman, Suicide Among Police, 134 American Journal of

Psychiatry (1977) .........cc cece cece cece eeeeee

Johnson, A Comparative Study of Stress Between Police

Officers and Correctional Officers, Master of Criminal

Justice Thesis (1987) .. 2... 6... cc cece ee eee

Kantor Report (1958) .... 0... 06 e eee e cece eee eens

Kelling, Police and Communities: The Quiet Revolution,

National Institute of Justice and Harvard (1988) ....

Kelling & Bratton, “Community Policings and the Police

Officer,” 15 Perspectives in Policing (Jan. 1993). ..

Page

Contents

Kelling & Bratton, Jmplementing Community Policing:

The Administrative Problem, U.S. Justice Dept.

Perspectives on Policing (July 1993) .............

Kelling & Wilson, “The Police and Neighborhood

Safety,” Atlantic (March 1982) ..................

Kroes, Psychological Stress and Police Work, Paper

presented at the Third Annual Symposium of the

American Academy of Stress(1974) .............

Kroes, Job Stress and the Police Officer(1975) .......

Kroes, Society's Victim: The Policeman: An Analysis of

Job Stress in Policing (1975) .... 2.6... cc cece cee

Kroes, Society's Victim: The Policeman (1976) .......

Lacayo, “Finally, We’re Winning The War Against Crime:

Here’s Why,” Time (January 15,1996) ............

Langone, When Cops Crack Up, Discover(1981) .....

Lewis, Toward an Understanding of Police Anomie, |

Journal of Police Science and Administration

GIOFGE cccvcccpetoupevevesdcccececcevedvccede

Maslach, Burned-Out Cops and Their Families,

Psychology Today (1979) .............0 ce eeeee

Page

Contents

Moore-Ede, The Twenty Four Hour Society:

Understanding Human Limits In A World that

Never Sloape (1992) ccc cccccccccccccssccecece

Morrow, “Back to the Beat,” Time (April 11,1991) .....

Niederhoffer, The Police Family: From Station House to

Dem OOCTOEED 6 occcvecvesdesceseensievetas

Pierce, Spaar and Briggs, The Character of Police Work

CIGD ccdcccccs cenceccetésscessieseteseussen

Reiss and Tonry, Communities and Police (1986) .....

Schor and Leete, “Assessing The Time Squeeze: Hours of

Work in the United States, 1969-1989,” 33 Indus. Rel.

Ea FD ccccccccceetectovatereceneveucccdc

Scogan, Disorder and Decline: Crime and the Spiral of

Urban Decay (New York Basic Books) (1990) .....

Selye, Police Stress, 1 Police Stress Magazine (1981)

*eeeoeeeveeeoeeeeeoeevoe eee eee eevn eevee eeeeeeeeeeeeee ee

Singleton and Teahan, Effects of Job Related Stress on the

Physical and Psychological Adjustment of Police

Officers, 6 Journal of Police Science and

Administration (1978) .........0.0cee cece ee eees

Skolneck, A Sketch of the Policeman's Working

Personality, Criminal Justice-Law and Politics (1972)

Page

Contents

Sparrow, Coronary Heart Disease in Police Officers

Participating in the Normative Aging Study, 118

American Journal of Epidemiology (1983) ........

Speilberger, The Police Stress Survey: Sources of Stress in

Law Enforcement, Human Resources Institute (1980)

Standfast, “Focus on Stress: The Police Supervisor and

Stress.” Prodigy Web Browser (May 1996) ........

NEED < vigudcirvcchevieewheudbadeese

Stratton, Post-Traumatic Stress: Study of Police Officers

Involved in Shootings, Psychological Reports (1984)

Tang, The Effects of Hardiness, Police Stress, and Life

Stress on Police Officers’ Illness and Absenteeism, 21

Public Personnel Management (1992) ............

Time, “Law and Order: Why Cops Turn Violent,” (April 1,

SUSE Sandnddetdscvesceneshldnteasieesssccsec

Time, “Finally, We’re Winning The War Against Crime:

Here’s Why” (January 15,1996) .................

Violanti, The Police Stress Process, 11 Journal of Police

Science and Administration (1983) ..............

Page

xii

Contents

Violanti, The Police Stress Process, 11 Journal of Police

Science and Administration (1984) ..............

Wadman, Olson, Community Wellness: A New Theory of

Patleing (IGG oc ccc csvsccscakestadesesessces

Wallace, Stress and its Impact on the Law Enforcement

Officer, 4 Campus Law Enforcement Journal (1978)

eevee eeveeeeeeeeeeveeeveeeeeeeeeeeeeeeeeeeeeeneee

Wallinsky, “The Crisis of Public Order,” The Atlantic

Mamtiely (Faby USFS) 2 cccccccccccccccccccceseses

Weles Mamert (1G68) nn cccvccccccsccsescccccsecss

White, Biggerstaff and Grubb, Factors of Stress Among

Police Officers, 12 Criminal Justice and Behavior

CGRED ccncccccdcncdsacsadecbe bebSetcenseaas

Weichmann, “Community Policing Exchange,” Art. 9,

Officers Select Ideal Supervisors (March/April 1996)

Bureau of Justice Statistics, Law Enforcement

Management and Administrative Statistics, 1990: Data

for Individual State and Local Agencies with 100 or

Bore GieereCIGGE) .cccccccesccccescssccccces

Bureau of Justice Statistics, Law Enforcement

Management and Administrative Statistics, 1993: Data

for Individual State and Local Agencies with 100 or

Bhore Geeta (IGSS) oc ccccsccccccsccccesevcecs

Page

xili

Contents

Page

Bureau of Labor Statistics, U.S. Department of Labor, 41

Employment and Earnings(1994) ............... 8

Fairfax Coalition of Police Study of The Negative Effects

of Rotating Shifts on Police Officers (1991) ........ 15

National Institute of Justice, Problem-Oriented Policing,

SE ED bic bo cwh dnaWudadeds céewinketwius 12

National Institute of Justice, Police Work Schedules

DE ndstunGlettcdbhadetadtenenetetedinssee 15

National Institute of Justice, Community Policing in

Seattle: A Model Partnership Between Citizens and

Pe NUD c'nn votaddenehedaseseecses 12

National Institute of Justice, U.S. Department of Justice,

Community Policing for Safe Neighborhoods 2000:

Partnership for the 21st Century (1993) .......... 10

U.S. Bureau of Justice Statistics, Police Departments in

Large Cities, 1987, Special Report (1989) ......... 10

U.S. Department of Justice, Office of Community

Oriented Policing Services, Problem-Solving Tips A

Guide to Reducing Crime And Disorder Through

Problem-Solving Partnerships (June 1996) ........ 12

U.S. Department of Labor Employment Standards

Administration, Minimum Wage and Maximum Hours

Standards Under the Fair Labor Standards Act: Report

to the Congress Required by the Fair Labor Standards

Act 199] Section 4(d)(1) (1989) and (1993) ........ 4

xiv

Contents

Page

U.S. DOL, Nonsupervisory Fire Protection and Law

Enforcement Employees in State and Local

Government, Employment Standards Administration

Gad. SOTED cdcdsiccescddcedierrcdawetnvweaces's 17

U.S. General Accounting Office, Report to the Chairman

Subcommittee on Labor Standards Committee on

Education and Labor House of Representatives: The

Department of Labor's Enforcement of the Fair Labor

Standards Act (September 30,1985) ............. 3

Hearings Before the Subcommittee on Labor of the Senate

Committee on Labor and Human Resources, Fair

Labor Standards Amendments of 1985,99th Cong., Ist

BOSS. CIGD cc ciccccceccccvecedntédsesesucsese 17

57 Fed. Reg. 37666(1992) .........2eeeeeeeeeeeeee 23

FOCPR. 6 S4LSE wccccccccccescessassccvosesess i, 23

ZOCPR. § S41.21G(O) 2. ccccccsescsccccccccsces 23,24, 25

ZOCER. § S41.22G(AMS) ...cccscccscccsccsesccees i,4

2OCF.R. § S41.118(aNG) .... cc cccccccccccccccces i, 27

THE INTEREST OF THEAMICI CURIAE

FOPANDIUPA

The amici organizations represent the majority of working

law enforcement officers in the United States. The only other

such national organization, National Association of Police

Organizations, has filed a separate brief in support of Petitioners.

The amici have obtained consent from both parties to file this

brief. This brief supports the Petitioners’ argument that the

decision of the Eighth Circuit should be reversed.

The Grand Lodge of the Fraternal Order of Police is an

international organization of full-time law enforcement officers

employed by federal, state or local government agencies. It’s

1,982 local lodges comprise a total membership of 265,451

active members. The Fraternal Order of Police was founded in

1915 in Pittsburgh, Pennsylvania and is currently incorporated

under the laws of the State of Pennsylvania. The Grand Lodge

serves 39 affiliated state lodges (Alabama, Arizona, Arkansas,

California, Colorado, Connecticut, Delaware, D.C., Florida,

Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana,

Maryland, New Jersey, New Mexico, New York, North Carolina,

Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina,

South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia

and Wyoming). The Grand Lodge also has two international

affiliates in Canada and Ireland. The Grand Lodge Auxilary was

formed in 1941. The Grand Lodge of the Fraternal Order of

Police has its headquarters housed in Nashville, Tennessee, and

maintains offices in Washington, D.C., as well.

Ithistorically has been, and continues to be, aresponsibility

of the Grand Lodge to educate members on issues that may

impact the terms and conditions of employment afforded

law enforcement professionals. As part of fulfilling that

responsibility, the Grand Lodge informs members about national

legislation affecting those areas, as well as crime control

measures, and attempts to influence such legislation. Included

among such matters is the Fair Labor Standards Act (“FLSA”).

The Grand Lodge is governed by a Board of Directors

composed of National Trustees elected by each respective state

lodge and an Executive Board composed of the President, I st Vice-

President, 2nd Vice-President, Secretary, Treasurer, and Sergeant-

at-Arms. The members of the Executive Board are elected by the

delegates present at Biennial Conference of the Grand Lodge.

The St. Louis Police Officers Association, FOP, represents

1,300 police officers in the St. Louis Police Department. It is

affiliated with the Grand Lodge of the FOP through the Missouri

Lodge.

The International Union of Police Associations, AFL-CIO, is

the law enforcement parent of the police unions within the American

Federation of Labor and Congress of Industrial Organizations. Itis

composed of three hundred and seven affiliated police unions and

associations representing over 80,000 street level law enforcement

officers in over four hundred law enforcement agencies throughout

the United States, Canada and Mexico. The IUPA regularly

represents the rights of individual law enforcement officers

concerning their wages, hours, benefits, professional standing, and

legal rights. [UPA and its affiliates have been involved in more than

40 Fair Labor Standards Act (“FLSA”) enforcement actions

through out the country.’

1. E.g., Clancey v. Alexandria, 720F. Supp. 1230(E.D. Va.), aff'd, 912

F.2d 463 (4th Cir. 1989); Rutledge v. Jackson, Case No. J87-0342(W) (S.D.

Miss. Nov. 3, 1989); Milwaukee Police Association v. Milwaukee, Case No.

88-C-412(E.D. Wisc. 1990); Kessler v. Howard County, Case No. 92-1098

(4th Cir. 1992); PPOA v. Los Angeles County, Case No. Civ. 91-1772 WJR

(GHKX) (C.D. Cal. April 13, 1992); Amshey v. United States, Case No. 583-

86 (Fed. Cl. Ct. 1992); Ahern v. New York, 807 F. Supp. 919(N.D.N.Y. 1992);

Shockley v. Newport News, 997 F.2d 18 (4th Cir. 1993); Moreau v.

Klevenhagen, 508 U.S. 22 (1993); DeBraska v. Milwaukee, Case No. 96-C-

402 (E.D. Wisc.) (case pending).

The IUPA’s Executive Officers are President Sam Cabral,

Secretary-Treasurer Rich Estes and Vice President Art Reddy.

Fifteen members of the Executive Board are elected by the

members’ delegates nationwide. The IUPA meets in Convention

biannually and holds a National Conference in the intervening

years.

The I.U.P.A. assisted St. Louis Police Fraternal

Organization, represents the majority of Sergeants and

Lieutenants in the St. Louis Department.

Law and order and the need for increased, reformed

vigilance by working law enforcement is a clear national

priority. Similarly, America needs a national hours of work

standard for our working law enforcement officers to ensure both

sufficient and vigilant law enforcement coverage. The FLSA

sets that national hours of work standard for law enforcement at

up to 171 hours in a 28 day period. 29 U.S.C. §207(k).

Broad, liberally construed, easily obtained exemptions

from the national hours of work standard undermine the standard

itself by, as happened here, exempting a large middle segment of

the work force. The larger the segment exempted from the

standard, the more easily the standard itself is defeated and its

very purposes are undermined.

The limited resources,’ and related public sector non-

2. The Government Accounting Office reported that the time spent on

FLSA enforcement declined from 558 staff-years in 1981 to 474 staff years in

1984. U.S. General Accounting Office. Report to the Chairman Subcommittee

on Labor Standards Committee on Education and Labor House of

Representatives: The Department of Labor's Enforcement of the Fair Labor

Standards Act (September 30, 1985). Since the initial enactment of the Fair

Labor Standards Act Amendments of 1985, which most recently brought

public safety employees under a national hours of work standard, the budget

of the Wage and Hour Division of the Department of Labor has continued to

decline, its staff has continued to be depleted, and its enforcement authority

(Cont'd)

enforcement policy of the U.S. Labor Department's Wage and

Hour Division,’ leaves enforcement responsibility of the

Cont'd)

sadn limited. For example, during fiscal year 1989, the Department had

sufficient resources to conduct almost 76,000 investigations. Just one year

later, that number decreased such that it investigated barely 74,000

complaints. See U.S. Department of Labor Employment Standards

Administration, Minimum Wage and Maximum Hours Standards Under the

Fair Labor Standards Act: Report to the Congress Required by the Fair Labor

Standards Act 1991 Section 4(d)(1)(1989) and (1993). These reductions

continue with each new federal budget.

In addition, the majority of the Department's resources must be spent in

the private sector. In both 1989 and 1990, of the more than 70,000 complaints

investigated by the DOL, less than 2,000 were in the public sector. /d.

3. On November 19, 1985, the DOL published an Advance Notice of

Proposed Rulemaking in the Federal! Register seeking comments concerning

the salary basis test. Arepresentative of public employers commented that due

to state and local laws governing public accountability, some public

employers were required to make part-day deductions for all employees

without distinction. As a result of this comment, the Department of Labor

declared on January 9, 1987, that it would not enforce the part-day docking

portion of the salary basis test against any public sector employee who

otherwise met the requirements for exempt status, provided the applicable

state or local law required the employer to deduct pay for absences of less than

a day for public accountability reasons. See DOL Opinion Letter Ruling,

January 9, 1987.

DOL’s nonenforcement policy did not affect the employee's right to go

to court to enforce all parts of the Fair Labor Standards Act including the part-

day docking section of the salary basis test. 29 U.S.C. § 216(b). The remaining

portions of the salary basis test, including the disciplinary docking rule,

remained in effect and enforceable. 29 C.F.R. § 541.118(a)(5). Pet. App. at

82a.

However, the non-enforcement policy had the unintended consequence

(Cont'd)

exemption provisions of the Act as they apply to law

enforcement solely up to individual law enforcement employees

and their organizations.‘ The Grand Lodge of the Fraternal

Order of Police and the International Union of Police

Associations, AFL-CIO, take that responsibility seriously and

have been active in efforts to enforce the Act.

The Grand Lodge of the Fraternal Order of Police regularly

publishes a Fair Labor Standards Act Update and provides

seminars on FLSA across the country. The International Union

of Police regularly publishes an FLSA handbook entitled

Policing Your Paycheck, runs annual conferences and seminars

on enforcement and provides legal counsel in FLSA litigation

through its office of general counsel.

The amici are keenly interested in continued strict

enforcement of a national hours of work standard for working

law enforcement officers and strict and narrow application of

exemption from that standard.

(Cont'd)

of placing the FLSA enforcement burden on individuals and organizations

such as the amici which generated a situation in which, as the United States

explained in its amicus curiae brief, most of the twenty-seven Court of

Appeals “cases upon which petitioners rely were decided without a clear

statement by the Department of Labor.” See Solicitor General's Brief for the

United States Amicus Curiae (May 1996).

4. Since the DOL’s nonenforcement policy of 1987, private party

enforcement under 29 U.S.C. § 216(b) has been the only litigation

enforcement of the FLSA exemption standards as they apply to law

enforcement employees. E.g., Shockley v. Newport News, 997 F.2d 18 (4th Cir.

1993); Hurley v. Oregon, 27 F.3d 392 (9th Cir. 1994); Bankston v. Illinois, 60

F.3d 1249 (7th Cir. 1995); see also, n. 3.

STATEMENT OF THE CASE

The Petitioners in this case are 289 Sergeants and one (1)

Lieutenant of the St. Louis Police Department, St. Louis,

Missouri. The St. Louis Police Department has, at all relevant

times, treated the Sergeants and Lieutenants as exempt from the

overtime provisions of the FLSA. Although the Sergeants and

Lieutenants work in excess of the statutory maximum hours, they

are not paid for that work except in unusual circumstances, as

when they are working under federal grants.° J.A. at 79.

Despite the cursory designation of the Sergeants and

Lieutenants as exempt, the St. Louis Police Department has an

express policy which subjects the Sergeants and Lieutenants to

disciplinary deductions in pay of less than one week for any of

approximately 40 different Departmental violations. See Pet.

App. G., 102a. Sergeants in St. Louis are in fact suspended for

periods of less than a week for disciplinary reasons. J.A. 48-57,

60-62, 85-87. The Petitioners’ sick leave, vacation pay, and

recreation pay are all calculated and used on an hourly basis. J.A.

at 11, 47 and 58. Sergeants and Lieutenants receive shift

differential pay for each hour worked during the “midnight”

shift. J.A.at77.

The St. Louis Police Department has never completely

reformed its policy of subjecting Sergeants and Lieutenants to

disciplinary deductions in pay of less than one week. In addition,

the Department intends to maintain its two day deduction from

Sgt. Guzy until givena final order by the courts toreimburse him.

The Petitioners brought this suit in the United States District

Court for the Eastern District of Missouri on October 25, 1988

5. Law enforcement Sergeants and Lieutenants in the federal sector are

covered by the salary basis test and its “subject to” discipline rule and are non-

exempt. See Amshey v. United States, 26 Cl. Ct. 582 (Fed. Cl. Ct. 1992).

challenging the Department's treatment of them as exempt under

the FLSA. Pet. App. 68a-102a. On August 26, 1994, the District

Court found that all but two Sergeants’ positions were exempt.

Pet. App. 67a-68a. On September 8, 1995, the Eighth Circuit

affirmed the decision and reversed the decision in part ruling that

all the Sergeants’ positions were exempt. Pet. App. 1a-36a.

Although the District Court did not expressly discuss the

salary basis test, except in its 1991 summary judgment decision

for Lt. Delgado, the Eighth Circuit ruled that the Sergeants are

salaried because “[t]he mere possibility of an improper

deduction in pay does not defeat anemployee’s salaried status.”

Pet. App. at 8a. The Court did note, however, that “an employee

is considered nonsalaried, and thereby entitled to overtime

compensation, if his compensation is subject to reduction for a

violation of any other [non-safety] rules.” Pet. App. at 9a. The

Court concluded that although “[a]rguably, the department's

two-day pay deduction from Sergeant Guzy would require him

to be treated as a nonsalaried employee,” the Department could

avail itself of the “window of correction.” Pet. App. at 9a

(emphasis added). According to the legal conclusions of the

Eighth Circuit, Sergeant Guzy’s deduction was a unique, one-

time deduction, whether intentional or not, and therefore, was

not according to an established policy. The court further noted

that the residency rule had been changed, without mention of the

remaining unchanged 39 disciplinary rules. Pet. App. at 10a. The

Court declared that Guzy’s deduction fit within the “window of

correction” because the deduction was “ ‘for reasons other than

for lack of work.’ ” Pet. App. at 10a.

ARGUMENT

THE FAIR LABOR STANDARDS ACT AND ITS

SALARY BASIS TESTAREASAFETY MEASURE IN LAW

ENFORCEMENT.

A stringent salary basis test which strictly limits the escape

routes from a reasonable, well tailored hours of work standard is

not simply or even primarily, intended to protect employee

entitlement to overtime pay. The national hours of work standard

is and always has been primarily a health and safety, and

employment expansion regulation. At the turn of the last century,

hours of work rules were upheld by this Court to protect women

and children, Muller v. Oregon, 208 U.S. 412 (1908); Howley v.

Walker, 232 U.S. 718 (1914), and to protect miners and railway

workers, Holden v. Hardy, 169 U.S. 366 (1898); Wilson v. New

York, 243 U.S. 332 (1917), and later to protect broader citizen

access to the workplace and to safety in it once there. United

States v. Darby, 312 U.S. 100 (1941). Today, no less than any

other time in history, a national hours of work standard is crucial.

Schor and Leete, “Assessing The Time Squeeze: Hours of Work

in the United States, 1969-1989,” 33 Indus. Rel. L. J. 25 (1994);

Bureau of Labor Statistics, U.S. Department of Labor, 41

Employment and Earnings 67 (1994). Such a standard protects

the safety of law enforcement officers and fosters the law

enforcement goals they strive to achieve.

A. Crime and Crime Fighting Strategies, Hours of Work,

and Law Enforcement Stress.

The increase in crime coupled with new anti-crime

strategies call for more law enforcement hours of work on the

street. With the increase in need for law enforcement in our

society, law enforcement officers experience an increase in

hours of work and increased on-the-job stress. A strong national

hours of work standard fosters both increased manpower and

officer safety.

Crime. Inrelation tothe amount of crime, the United States

employs less than 10% of the police presence on the street than

it did thirty years ago. In the 1960's the United States as a whole

employed 3.3 police officers for every violent crime reported per

year. In 1993, ithad 3.47 violent crimes reported for every police

officer. To return to the ratio of police to violent crimes we

experienced in the 1960's, we would have to add approximately

five million police officers to the street. Today, a police officer

must deal with 11.45 times as much violent crime as his or her

predecessor dealt with even two decades ago. See Adam

Wallinsky, “The Crisis of Public Order,” The Atlantic Monthly,

39 (July 1995).

By way of example, in Milwaukee in 1965, there were

twenty-seven murders, thirty-three rapes, and 214 robberies. In

1990, when the population was smaller, there were 165 murders,

5,988 rapes and 4,472 robberies. In New Haven, Connecticut in

1960, only six murders, four rapes and sixteen robberies were

reported. By 1990, when the population was reduced by 14%,

New Haven reported thirty-one murders, 168 rapes and 1,684

robberies. /d. at 41. Unfortunately, these increases are reflected

nationwide.

Anti-Crime Strategies: “Broken Windows” and Community

Policing. Some reductions in crime have been experienced very

recently. Compare, for example, cover stories from Time, “Law

and Order: Why Cops Turn Violent,” (April 1, 1991) and

“Finally, We're Winning The War Against Crime: Here’s Why”

(January 15, 1996). Those reductions are the result of a slight

increase in the numbers of officers and a large increase in their

hours on the street.° They also reflect the application of two

seemingly opposing strategies — the “broken windows” theory

dominant recently in New York City and the “community

policing” theory dominant in Philadelphia, Los Angeles and

elsewhere.’

The “broken windows” approach, initially developed in

1982 by Harvard’s James Q. Wilson and Northeastern

University’s George L. Kelling, argues that minor violations

create disorderly environments that encourage more serious

6. Forexample, a study performed by the Milwaukee Police Department

revealed that while in 1988 the total overtime hours for the Department

amouated to 119,137 hours, just five years later in 1993, the total overtime

hours for the Department amounted to 176,824 hours. See Memorandum of

Milwaukee Budget and Management Director (July 1993) (copy on file).

In 1987, the average overtime hours per police officer in a population

with 1,000,000 or more citizens was 66.0 hours per year. U.S. Bureau of Justice

Statistics, Police Departments in Large Cities, 1987, Special Report (1989).

By 1993, the average officer in the Houston, Texas Police Department, where

Sergeants are treated as non-exempt and receive overtime pay for example,

worked more than 108 hours of overtime per year. Similarly the average

Cincinnati, Ohio Police Officer, including Sergeants who are treated as non-

exempt and receive overtime pay, worked in excess of 189 overtime hours.

U.S. Bureau of Justice Statistics, Law Enforcement Management and

Administrative Statistics, 1993: Data for Individual State and Local Agencies

with 100 or More Officers (1995). The Houston officers worked an average of

179.3 hours per 28 day period, or more than an extra day per cycle. The

Cincinnati officers worked an average of 185.5 hours per 28 day cycle or

almost two days more than the FLSA hours of work standard which reflects the

DOL's study of the average number of hours the average officer worked in

1975. For full national data, see supra. and Bureau of Justice Statistics, Law

Enforcement Management and Administrative Statistics, 1990: Data for

Individual State and Local Agencies with 100 or More Officers (1992).

7. National Institute of Justice, U.S. Department of Justice, Community

Policing For Safe Neighborhoods 2000: Partnerships for the 21st Century,

(1993).

crimes.* The analogy is to the abandoned building in which

broken windows go unrepaired which soon deteriorates to the

mile square slum. New York City Mayor Rudolph Giuliani and

Police Commissioner William Bratton implemented a “broken

windows” approach in May 1994 by mapping crime patterns and

responding quickly and directly toeven the smallest violations.

The system is credited for atwo year decline in crime in all New

York precincts — murder is down 39%, auto theft 35%, robbery

off by a third.®

Community policing or “problem oriented policing”

developed, in large part, by University of Wisconsin’s Henry

Goldstein and fostered by the U.S. Justice Department’s Office

of Community Oriented Policing Services, takes what seems a

different approach. It emphasizes putting more officers on the

street, in the community, and on foot patrol. It fostered the

Norman Rockwell “soda fountain/cop with a kid” model, night

basketball, neighborhood improvement and police presence as

crime prevention strategies. Cities and towns nationwide —

including Boston, Houston, Philadelphia and Tulsa — are

adopting community oriented policing.

The beat cop is back. Communities work to build rapport

between law enforcement officers and neighborhoods. When the

citizens of a neighborhood and their regularly assigned law

enforcement officer know each other, it is more difficult to break

the law. This theory puts more cops on the street and encourages

8. George L. Kelling and James Q. Wilson, “The Police and

Neighborhood Safety,” Atlantic 29 (March 1982); Wes Scogan, Disorder and

Decline: Crime and the Spiral of Urban Decay (New York Basic Books)

(1990).

9. Seen. 8, supra.; and Richard Lacayo, “Finally, We're Winning The

War Against Crime: Here's Why,” Time, 48 (January 15, 1996)

their total involvement in the community.'® Community

Policing too has been effective. Madison, Wisconsin’s south side

reported a 14% reduction in property crimes between 1987 and

1989 under the program. A western Houston neighborhood

recorded a 38% drop in serious crime over a six month period in

1988."' The Justice Department has found similar success to

other cities.'”

Whether a “broken windows” or “problem oriented”

policing model is used, reformed policing involves pressure for

more policing, more total hours on the street, more pressure on

those in law enforcement and a greater need for protection

against officer stress. Every law enforcement agency in which

the FOP and the IUPA have members is struggling with both the

crime problem and the remedial programs it generates.

Everywhere cops are working harder, longer hours under

increasing stress.

10. See, e.g., Wadman, Olson, Community Wellness: A New Theory of

Policing (1990); Goldstein, Problem Oriented Policing (1990); Goldstein and

Susmilch, The Problem Oriented Approach to Improving Police Service, A

Project on Development of a Problem Oriented Approach to Police Service

(1981); Green and Mastrofski, Community Policing: Rhetoric or Reality

(1988); Kelling, Police and Communities: The Quiet Revolution, National

Institute of Justice and Harvard (1988); Pierce, Spaar and Briggs, The

Character of Police Work (1984); and Reiss and Tonry (eds.), Communities

and Police (1986).

11. Lance Morrow, “Back to the Beat,” Time, 22 (April 1, 1991).

12. See National Institute of Justice, Problem-Oriented Policing,

(January 1987); National Institute of Justice, Community Policing in Seattle:

A Model Partnership Between Citizens and Police, (August 1992); U.S.

Department of Justice, Office of Community Oriented Policing Services,

Problem-Solving Tips A Guide To Reducing Crime And Disorder Through

Problem-Solving Partnerships (June 1996).

Longer Hours & Police Stress. Longer hours increase law

enforcement stress and that stress undermines the very programs

which the longer hours are attempting to improve. The officer

that presses to do more and do it better is the officer most likely

to succumb to stress. This Court recently recognized that “police

officers engaged in the dangerous and difficult tasks associated

with protecting the safety of our communities not only confront

the risk of physical harm but also face stressful circumstances

that may give rise to anxiety, depression, fear, or anger.” Jaffee

v. Redmond, __ U.S. __, 116 S. Ct. 1923, n. 10 (1996).

Dr. Lawrence Blum, Ph.D., aclinical psychologist who has

specialized in the treatment of law enforcement officer stress for

over 16 years, has documented the dominant role that long and

unpredictable work hours play in police stress. Dr. Blum

conducted a study of Milwaukee's police officers. Blum, “Final

Report Milwaukee Police Association, Interest Arbitration

Hearing, City of Milwaukee 1994/1995 Labor Contract,” 1994."

In the study, Dr. Blum received clinical data and questionnaire

responses of approximately 1 ,000 police officers and conducted

a review of the literature on stress, occupational stress, and

police stress."*

13. Report available from Dr. Lawrence N. Blum, Ph.D., Inc., Clinical

Psychologist, 540 North Golden Circle Drive, Suite 115 Santa Ana, CA.

92705.

14. E.g., White, Biggerstaff and Grubb, Factors of Stress Among Police

Officers, 12 Criminal Justice and Behavior, 111 (1985); Singleton and Teahan,

Effects of Job Related Stress onthe Physical and Psychological Adjustment of

Police Officers, 6 Journal of Police Science and Administration, 355 (1978);

Heiman, Suicide Among Police, 134 American Journal of Psychiatry, 1286

(1977); Anson, and Bloom, Police Stress in an occupational context, 16

Journal of Police Science and Administration, 229 (1988); French, A

Comparative Look at Stress and Strain in Policemen in Job Stress and the

(Cont'd)

Exceedingly high percentages of officers reported

experiencing continued and repeated stress reactions such as

(Cont'd)

Police Officer: Identifying Stress Reduction Techniques (1975); Cooper,

Stress in the Police Service, 24 Journal of Occupational Medicine, 30 (1982);

Greller, Police Stress: Taking a Department-Wide Approach to Managing

Stressors, The Police Chief, 44 (1982); Grencik, The Physical Fitness of

Deputies Assigned to Patrol Functionand its Relationship to the Formulation

of Entrance Standards, LEAA Final Report (1973); Grenrick, Towards an

Understanding of Stress in Job Stress and the Police Officer: Identifying Stress

Reduction Techniques (1975); Hageman, Occupational Stress of Law

Enforcement Officers and Marital and Familial Relationships, 6 Journal of

Police Science and Administration, 402 (1978); Hageman, Responses of

Police Rookie Officers to Stress, 10 Journal of Police Science and

Administration, 235 (1982); Johnson, A Comparative Study of Stress Between

Police Officers and Correctional Officers, Master of Criminal Justice Thesis

(1987); Kroes, Psychological Stress and Police Work, Paper presented at the

Third Annual Symposium of the American Academy of Stress (1974); Kroes,

Society's Victim: The Policeman: An Analysis of Job Stress in Policing (1975),

Kroes, Society's Victim: The Policeman (1976); Kroes, Job Stress and the

Police Officer (1975); Langone, When Cops Crack Up, Discover, 84 (1981);

Lewis, Toward an Understanding of Police Anomie, | Journal of Police

Science and Administration, 484 (1973); Maslach, Burned-Out Cops and

Their Families, Psychology Today, 59 (1979); Niederhoffer, The Police

Family: From Station House to Ranch House (1971); Selye, Police Stress, |

Police Stress Magazine, | (1981); Skolneck, A Sketch of the Policeman's

Working Personality, Criminal Justice-Law and Politics (1972); Sparrow,

Coronary Heart Disease in Police Officers Participating in the Normative

Aging Study, 118 American Journal of Epidemiology, 508 (1983); Speilberger,

The Police Stress Survey: Sources of Stress in Law Enforcment, Human

Resources Institute, (1980); Stratton, Post-Traumatic Stress: Study of Police

Officers Involved in Shootings, Psychological Reports, 127 (1984); Tang, The

Effects of Hardiness, Police Stress, and Life Stress on Police Officers ‘Illness

and Absenteeism, 21 Public Personnel Management, 493 (1992); Violanti,

The Police Stress Process, 11 Journal of Police Science and Administration,

112 (1984); Violanti, The Police Stress Process, 11 Journal of Police Science

and Administration, 389 (1983); Wallace, Stress and its Impact on the Law

Enforcement Officer, 4Campus Law Enforcement Journal, 36(1978). See also

Standfast, “Focus on Stress: The Police Supervisor and Stress.” Prodigy Web

Browser (May 1996).

fatigue, even after rest, trouble falling asleep, multiple

awakenings when trying tosleep, stiff painful feeling in muscles

without injury, heart burn, being easily irritated or annoyed,

feelings of nausea or sour stomach and backache or muscle

spasm without injury. Dr. Blum found that these symptoms are

caused by police officers’ bodies excessive prolonged

maintenance in a “fight or flight” condition in which the

body secretes excessive adrenaline, noradrenaline,

adrenocorticotropic hormone and cortisol.

In a follow up 1996 study, “The Impact of Hours of Work On

Police Officers,” Dr. Blum documents that these stress

conditions are greatly aggravated by long and unpredictable

hours.'* Acritical element of a program to remedy and control

law enforcement stress is regular work hours and a standardized

limited hours of work regime.'®

15. Report Available from Dr. Blum, see n. 13 supra; see also, Martin

Moore-Ede, M.D., Ph.D., The Twenty Four Hour Society: Understanding

Human Limits In A World that Never Sleeps (1992). Dr. Moore-Ede explains

that using overtime to perform additional work instead of bringing on new

employees results in severe costs to the employer in terms of “increased

fatigue and risk of human errors of inattention.” /d. at 114. He explains that

human fatigue as aresult of working extended hours or shift work accounts for

many serious accidents including Three Mile Island, Chernobyl, Exxon

Valdez, numerous airline crashes and dozens of trucking accidents. /d. at 66-

71. Finally, such hours result in increased societal health costs in increased

gastrointestinal problems, chronic sleep disorder, cardiovascular disorder and

other chronic iliness. /d. at 70-75; see also Fairfax Coalition of Police study

of The Negative Effects of Rotating Shifts on Police Officers (1991)

(documenting more than 50 scholarly works addressing the physical and

societal harms to working police officers from long, irregular, and

unpredictable hours of work, including Colligan, “Extended Work Hours and

the Compressed Work Week,” National Institute for Occupational Safety &

Health (1984); National Institute of Justice, Police Work Schedules (1990)).

16. The FLSA strict hours of work standard was Congress’ chosen

(Cont'd)

Individual police officers’ health and the community’s

safety are inextricably tied to the hours of work of police officers.

Just as the unhealthy and unsafe work hours of children and

women fueled legislation, litigation, and Supreme Court

precedent at the turn of the century; and, just as major issues in

railway and mine safety brought hours of work issues before the

court early in this century; the health and safety concerns

surrounding modern day law enforcement issues bring the need

for strict application of an hours of work standard in policing,

with narrowly construed exemptions, to the Court now.

B. The Congressional Design of the FLSA Hours of Work

Standard for Law Enforcement.

In 1974, recognizing the special needs of law enforcement

and desiring to create a strong national hours of work standard

for law enforcement, Congress ordered the Secretary of Labor to

develop a special hours of work standard for law enforcement. 29

U.S.C. § 207(k). Accordingly, in place of the general national

standard of a 40 hour work week, the Secretary developed a 171

hour in a 28 day cycle standard on the basis of an empirical study

of the actual hours worked by American law enforcement in

1975."

(Cont'd)

method to “eliminate low wages and long hours . . . that were detrimental to

the health and well being of workers.” Rutherford Food Corp. v. McComb, 331

U.S. 722, 727 (1947) (emphasis added); see also Barrentine v. Arkansas-Best

Freight System, 450 U.S. 728, 734 (1981); see alson. 15, supra.

17. In 1974, Congress amended the FLSA to apply in the public sector.

P.L. 93-269 (1974). As part of those amendments, Congress ordered the

Secretary to conduct a study within federal, state and local law enforcement to

determine the appropriate national hours of work standard for law

enforcement officers to be effective January 1, 1978. In 1976, however, the

Supreme Court decided National League of Cities v. Usery, 426 U.S. 833

(Cont'd)

After this Court's decision in Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528 (1985), Congress

tailored the FLSA coverage of public safety employees to the

particular concerns raised by public employers and employees in

extensive hearings and congressionally sponsored negotiations

between representatives of public employers and employees. '*

See P.L. 99-150, 99 Stat. 790 (1985). The Secretary of Labor

played an active and significant role in that legislative process

including agreeing to delay enforcing the Garcia decision until

Congress formulated and passed the 1985 Amendments.

The carefully tailored amendments applied the longer more

flexible 171 hour, 28 day law enforcement standard to state and

local governments. Additionally, Congress allowed

(Cont'd)

(1976) in which it struck down the 1974 amendments. Therefore, the Secretary

conducted the study based upon federal law enforcement information only.

The Court of Appeals for the D.C. Circuit found that the Secretary failed to

abide by Congress’ direction and ordered the Secretary to recalculate the hours

of work standard using the information from state and local governments as

well. Jones v. Donovan, slip. op. 79-2973, 25 W&H Cases 380(D.D.C. 1981),

aff'd mem., 675 F.2d 1340 (D.C. Cir. 1982). DOL then conducted a study in

which it obtained both the scheduled hours and the overtime hours worked and

combined this data with the federal data it had obtained to determine that

police officers, on average, were working 171 hours per 28 day cycle.

Significantly, in reaching this calculation, DOL considered the number of

straight time and overtime hours worked for line officers, as well as for

Sergeants and Lieutenants, in instances like St. Louis where Sergeants and

Lieutenants spend at least 20% of their time in street level law enforcement

work. See U.S. DOL, Nonsupervisory Fire Protection and Law Enforcement

Employees in State and Local Government, Employment Standards

Administration (Dec. 1979).

18. See H.R. Rep. 331, 99th Cong., Ist Sess. (1985); S. Rep. 159, 99th

Cong., Ist Sess. (1985); Hearings Before the Subcommittee on Labor of the

Senate Committee on Labor and Human Resources, Fair Labor Standards

Amendments of 1985, 99th Cong., 1 st Sess. (1985).

compensatory time under § 7(0), and incorporated a series of

other special provisions for the public sector, including atwelve

month compliance period during which public employers were

relieved from liability. /d.

After its careful consideration of the special needs in the

public sector, Congress did not create additional exemptions

from the overtime provisions in § 13(a) of the Act. Congress,

having been aware of the FLSA provisions and judicial

enforcement thereof over the past 45 years, left the exemptions

in place, including the Secretary's 1954 salary basis test and its

disciplinary docking rule, as fully applicable toemployees in the

public sector.

C. FLSA Dual Goals of Expanded Work Force and

Improved Working Conditions.

This case, by definition, only deals with the situation in

which police officers must work in excess of the FLSA law

enforcement hours of work standard of up to 171 hours over 28

days. 29 U.S.C. § 207(k). Unless an employee works in excess of

that standard, it makes no difference whether he or she is exempt

or non-exempt. To the degree employers claim that narrow

application of the exemptions would be too costly, they are

claiming that those sergeants and lieutenants will be working in

excess of the hours of work standard, more than 11 hours per 28

days (or 4 weeks) beyond the 40 hour work week standard

generally applicable in this country, more hours than the average

police officer worked in 1975 (including overtime hours), more

hours than the special upward adjusted standard mandated by

Congress. If employers claim significant costs for work beyond

the standard, it simply reflects work periods which are too long,

added stress, less safety, less sound judgment by those sergeants

and lieutenants who are closest to the firing line, and a removal

of the intended incentive to hire more street level law

enforcement officers.

The Supreme Court “consistently construe[s] the Act

‘liberally to apply to the furthest reaches consistent with

congressional direction’ . . . recognizing that broad coverage is

essential to accomplish the goal[s]. . . .” Tony and Susan Alamo

Foundation v. Secretary of Labor, 471 U.S. 290, 296 (1985).

Exemptions are intended to be rare with ihe presumption that

workers are exempt. Powell v. United States Cartridge Co. , 399

U.S. 497, 516 (1950). Perhaps the mos? serious difficulty with

developing a broader exemption rule than has been historically

applied, is that the benefit of the hours of work standard to the

non-exempt, both in terms of individual officers’ safety and

employer encouragement to hire more employees, is diminished

in proportion to the breadth of the group which is exempt. See

Tony and Susan Alamo Foundation v. Secretary of Labor, 471

U.S. 290, 302 (1985) (noting that liberalizing exemptions affect

many more people than the workers directly at issue and

circumvents the purposes of the Act). The importance of this

principle can be best understood by a simple example.

Suppose a 100 officer law enforcement agency has a single

chief and twocaptains who are exempted from the hours of work

standard since they are charged with the executive and top

internal managerial administrative work, as was intended under

the Act. The remaining ninety-seven officers are covered by the

hours of work standard. If the department finds that it has

insufficient police coverage, the additional work must be

performed by those 97% non-exempt employees. Those officers

will be paid overtime at time and one-half which generates an

economic motive to control overtime, to achieve superior

management, to use the special 7(k) and comp time rules

developed for law enforcement, (29 U.S.C. § 207(k) and (0))

and, failing all of that, tocause more officers to be hired to insure

that sufficient officers are employed to safely do the work that

must be done.

Now, suppose the same department, but a more liberal, less

narrowly construed set of exemptions applies, all of the six

working level lieutenants and the 24 working supervisor

sergeants join the chief and twocaptains in the exempt category.

Now, rather than 3% of the department being exempt, over 30%

are exempt. When extra work needs to be done, none of the

pressures intended under the Act’s hours of work scheme come

into play. The extra work can be, and will be, assigned to the mid-

level lieutenants and sergeants without any additional overt:me

costs. The department will have no incentive to control the

number of hours worked by the sergeants and lieutenants. The

sergeants and lieutenants will bear the brunt of the increased

stress without compensation for such burdens. The department

will have no incentive to hire additional employees if significant

additional work is needed. The hours of work standard and the

purpose of the FLSA will be successfully avoided in that

department.

Protecting Citizen Safety. The 171 hours over 28 day

standard further protects the health and safety of Americans —

not only the direct health and safety of the law enforcement

officers covered by it, but also the safety of the broader society.

As explained above, an hours of work standard in law

enforcement is important to reducing the stress and pressure

placed on working law enforcement officers. Society puts them

in the line of fire. They are the nation’s centurions. Not only are

they entitled to the workplace health and safety protection of

limited hours of work, it is also important that law enforcement

officers are so protected because society arms them and grants

them the power to use force to enforce its laws. The armed

centurion on the streets of American cities must be as well rested

and protected from stress as the engineers who drive our trains.

Expanding Workforce. The time and one half overtime

provisions of the Act, the Congressionally selected method of

insuring an hours of work standard, generates a market incentive

for hiring additional employees. This Court has recognized that

a main purpose of the overtime provision is to “induc[e] the

employer to reduce the hours of work and toemploy more men.”

Walling v. Youngerman-Reynolds Hardwood Co. ,325 U.S. 422,

423-24 (1945) (citations omitted). Again, in policing, enforcing

the hours of work standard strictly, not only creates jobs for the

departments of the amici organizations, it also aids in the general

goal of increasing the numbers of trained, experienced,

unstressed officers combating crime on the streets of our nation.

Compensating For Work Conditions. Overtime pay for

excess hours increases the pay of those officers who are required

to work long hours under increasing stress — a market society's

method of repaying them for the sacrifice to their health and

personal life. Congress and the Department of Labor has

painstakingly determined the reasonable hours of work standard

for law enforcement officers. As demonstrated by the studies

cited above, work in excess of that standard places a severe

physical and emotional toll on those employees. Congress

appropriately has determined that they deserve additional

compensation for that toll. See Walling v. Youngerman-Reynolds

Hardwood Co., 325 U.S. 422, 424 (1945) (overtime pay serves

Congress’ purpose of “compensating the employees for the

burden of along workweek.”) (citations omitted).

Fostering Cohesive Departments. Uniformity of a

standard hours of work rule throughout the work force has a

separate virtue of diminishing conflict and strife among

employees and avoiding the perception of unfair treatment

among workers. See The Stein Report, n.25 (1940), J.A. at 31.

This goal is particularly important within law enforcement as

agencies now move toward team policing. The transition to

community or team policing has been inhibited when working

supervisors and middle management do not support it. See

George L. Kelling and William J. Bratton, /mplementing

Community Policing: The Administrative Problem, U.S. Justice

Dept. Perspectives on Policing (July 1993); “Community

Policing and the Police Officer,” 15 Perspectives in Policing 3

(Jan 1993). It will come to fruition only with the cooperation of

working supervisors. Such cooperation should not be inhibited

by disparate salary treatment. See Wiechmann, “Community

Policing Exchange,” Art. 9, Officers Select Ideal Supervisors,

(March/April 1996).

Naturally, interdepartmental problems may arise between

street officers and their Police Sergeants and Lieutenants as

more hours of work are extended beyond the FLSA 171 hour

standard. Police sergeants and lieutenants are subject to the same

pressures, discipline and control by managementas line officers;

however, under the Eighth Circuit’s rule, they must work beyond

the established hours of work standard without the premium pay

compensation which their subordinates have. This leads to the

subordinate receiving more pay than the supervisor. See Trial

Transcript, Vol. III (Sgt. Frederick testified subordinates make

more than him), see also, Vol. IV pp. 25-26, 39, 54, 93. and J.A.

at 59 (Chief Sheetz testifying that patrol officers with overtime

can make more than their supervising sergeants). Contrary to the

Act’s intent, the premium pay entitlement of lower ranking

officers creates pressure on management to assign all extra work

to sergeants and lieutenants who are not entitled to any pay at all

for overtime work.

This Court has long recognized that long hours contributes

to workplace strife. One solution, according to the Court, is that

“Congress may properly use [overtime pay] to lessen the

irritations.” Overnight Motor Transportation Company, Inc. v.

Missel, 316 U.S. 572, 576 (1942).

Il.

THE SALARY BASIS TEST IS A CRUCIAL

COMPONENT TO PRESERVING THE NATIONAL

HOURS OF WORK STANDARD FOR LAW

ENFORCEMENT OFFICERS.

A. The Salary Basis Test and Its Disciplinary Docking

Rules: Reasonable Standards and a Necessary, Objective

Test of Exempt Status.

The salary basis test in29C.F.R. §541.118(a) and the public

sector salary basis test of 29 C.F.R. § 541.5d are reasonable.

They provide a necessary and effective enforcement tool and an

objective test of exempt status. See Kantor Report (1958), J.A.

at 42 (salary test “simplif[ies] enforcement by providing aready

method of screening out the obviously nonexempt employees.”);

Balgowan v. New Jersey Department of Transportation, slip. op.

95-5276, 1996 App. LEXIS 11353 (3d Cir. 1996), vacated for

reh’g pending; Carpenter v. Denver, 82 F.3d 353 (10th Cir.

1996), cert. pending; Wisconsin v. Mueller, 54 F.3d 438 (7th Cir.

1995), cert. pending (Case No. 95-586).

Further, the disciplinary docking rule is a tried and true

indicator of non-exempt status. Since the 1940's, the

Department of Labor has consistently concluded that truly

exempt individuals, as they were intended by Congress, are not

subject to disciplinary suspensions in pay of less than a pay

period. Compare, Weiss Report (1949) J.A. at 39 (noting

disciplinary deductions of executive, administrative and

professional employees were a war time phenomenon and that

“[s]uch deductions are rarely made today. The disciplining of

such employees in the rare instances where it is needed is usually

accomplished in other ways than by deductions from salary.”)

with 57 Fed. Reg. 37666 (1992) (noting public employers can

discipline executive, administrative and professional employees

in ways other than through short disciplinary deductions.). See

also, Petitioners’ Brief on the merits for full discussion of salary

basis test’s history, reasonableness and effectiveness.

B. The “Subject to” Docking Rule in 29 C.F.R. § 541.118(a)

AsA Practical Matter.

An employee is not salaried if he or she is subject to

impermissible disciplinary deductions as a practical matter. The

real test is not a choice between an unrealistic “merely

hypothetical rule” (which the Eighth Circuit rejects) and an

extreme “actual deduction rule” (which even the Eighth Circuit

does not expressly accept).'®

19. See Petition for Certiorari, Table A. Since the petition for certiorari

in this case was filed, the majority of the circuits rejecting the extreme

“actual deduction” rule has grown. See Yourman vy. Dinkins, slip. op. 95-7561,

1996 U.S.App. LEXIS 12544 (2d Cir. 1996), cert. pending; Balgowan v. New

Jersey Dept. of Transportation, slip. op. 95-5276, 1996 U.S. App. LEXIS

11353 (3d Cir. 1996), vacated pending reh'g.; Carpenter v. Denver, 82 F.3d

353 (10th Cir. 1996), cert. pending.

The weight of circuit court decisional law has swung sharply in favor of

the stricter rule led by the Ninth Circuit in Abshire v. County of Kern, 908 F.24

483 (9th Cir. 1990), cert. denied, 498 U.S. 1068 (1991) and the Third Circuit's

Balgowan v. New Jersey Dept. of Transportation, slip. op. 95-5276, 1996 U.S.

App. LEXIS 11353 (3d Cir. 1996), vacated pending reh'g. The Sixth Circuit

also favors the majority holding explaining that when it is ambiguous whether

an employee is “subject to” deductions, an actual deduction resolves the

ambiguity. Michigan Ass'n of Government Employees v. Dept. of Corrections,

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

The extreme “actual deduction” rule is now supported by a shrinking

minority comprised of only the Eighth Circuit in this case and the Fifth Circuit

in York v. Wichita Falls, 994 F.2d 236 (Sth Cir. 1991). The Eleventh Circuit,

which had been viewed as supporting the minority role, see Atlanta

(Cont'd)

This Court should endorse a practical test of whether the

employees over whom exemption is claimed are, in the day-to-

day workplace, in a practical way subject to disciplinary

suspensions of less than a pay period. In this case, everyone —

the Chief of Police (J.A. at 60, 62), the Internal Affairs

Investigator (J.A. at 85), the employer's 30(b)(6) designees (J.A

at 63-64), those directly commanding the petitioners (J.A. at 76),

and the petitioners themselves (J.A. at 86) — knew that a real

rule, actually enforceable against Sergeants and Lieutenants

made petitioners subject to disciplinary deductions for part of a

pay period.

The specific language of § 541.118(a) states that an

employee is not salaried if he or she works under rules which

“subject” the employee’s compensation to a suspension without

pay for less than a full pay period. The “subject to” test was not

intended to cover “merely hypothetical” rules stored on dusty

shelves which have no practical impact on the employee, but

actual rules which are soundly in place and which everyone

covered by the rule knows and complies with lest they be

disciplined.

The Sixth Circuit has outlined the practical reasons for the

rule —

We choose to focus on the actual policy,

rather than whether the policy has ever been

administered for two reasons. First, this

approach is more consistent with the

regulatory language defining a salaried

employee as one who is paid “a

(Cont'd)

Professional Firefighters v. Atlanta, 920 F.2d 800 (11th Cir. 1991), now

actually holds that even one impermissible deduction demonstrates that all

similarly situated employees are “subject to” deductions. Avery v. Talladego,

24 F.3d 1337 (11th Cir. 1994).

predetermined amount which is not subjectto

reduction because of variations in the quality

or quantity of his work.” Also, this approach

is more consistent with the general notion of

a salaried employee; as the Abshire court

stated “either pay is fixed and immutable, and

not subject to deductions, or itis contingent.”

Second, focusing on the actual policy is more

practical and realistic. Employees subject to

reduction in pay will, of course, attempt to

avoid these deductions by juggling schedules

and sacrificing non-work opportunities.

Simply because a reduction in pay has never

been applied does not mean that the

employee has not been affected by the policy

subjecting the employee to pay reduction.

Michigan Ass'n of Government Employees v. Michigan Dep't of

Corrections, 992 F.2d 82, 86 (6th Cir. 1993).

The Sixth Circuit’s logic is particularly appropriate to a

police department where a disciplinary code is an important part

of the para-military structure.

Entitling only those employees who actually suffer

disciplinary deductions to overtime pay, while keeping it from

those “subject to” an employer's intentional, well known,

unrepudiated discipline code, but not deserving of discipline,

would have the odd consequence of granting overtime pay

protection only to those who engage in conduct for which they

may be disciplined while keeping overtime pay protection from

those who comply with the employer’s rules and regulations.

C. The “Window of Correction” and Voluntary Employer

Compliance.

True national implementation of the FLSA hours of work

standard depends on broad voluntary employer compliance. The

FLSA “window of correction” under 29 C.F.R. § 541.118(a)(6)

should be open only when the employer has proven that any

violations of the salary basis test were mistakes, that all

deductions were reimbursed as soon as the employer discovered

the mistakes, and that all of the rules, policies and practices

pertaining to impermissible deductions have been changed.

If the “window of correction” opened more widely, as the

Eighth Circuit below would open it, an incongruous situation

would result. Employers could impose impermissible

disciplinary deductions knowing hat if challenged, they would

avoid liability both retroactively and prospectively by simply

promising toreimburse the employee, once finally ordered to do

so by the courts, and promising tochange the limited rules under

which that employee was disciplined. Under the Eighth Circuit’s

rule, there would be no incentive for employers to abide by the

rule and the FLSA’s hours of work standard would be effectively

and universally defeated.

28 29

1840 North Farwell Ave. #403

Milwaukee, Wisconsin 53202

Attorneys for Amici International

Union of Police Associations,

AFL-CIO and Their Affiliates

CONCLUSION THOMAS T. RUTHERFORD

ji ltoth

For the foregoing reasons, the amici, the Grand Lodge of the seathtdene “ss Pah ' well al

Fraternal Order of Police, the International Union of Police Order of Police

Associations, AFL-CIO and their affiliates respectfully request 320 Gold Street S.W

that this Court reverse the decision of the Eighth Circuit. Suite 1000 eer

Albuquerque, New Mexico 87103

Respectfully submitted, (505) 842-6700

RICHARD COBB

Counsel of Record NIKI wig C }

Office of General Counsel, IUPA Associate . neg

and Houston Police Patrol 15 0 Juniper

Union, IUPA, AFL-CIO Placitas, NM $7043

811 North Loop West

Houston. Tex anon Attorneys for Amici Grand Lodge

(713) 864-2925 Fraternal Order of Police and

Their Affiliates

LAURIE EGGERT

Office of General Counsel, 1UPA

and Milwaukee Police

Association, IUPA, AFL-CIO

ADELMAN, ADELMAN

& MURRAY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.