# Amicus Curiae Brief — Auer v. Robbins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 452

## 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

i

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

16

18

23

23

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

iv
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

17

13

17

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

Vv

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

16

22

19

21

vi

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

15

15

14

13,14

12

12

12

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

14

14

14

14

13

14

23

12

22

ix

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

14

14

14

14

11

14

14

14

x

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

15

12

14

12

11

14

13

14

xi

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

14

14

14

21

14

14

14

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

14

12

23

13

22

10

10

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

l

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

2

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).

3

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)

4

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)

5

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.

6
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).

7

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.

8
ARGUMENT
I.

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

9

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

10

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).

1]

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)

12

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).

13

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)

14

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).

15

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)

16

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)

17

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.

19

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.

20

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

21

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

22

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).

23
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

24

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)

25

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).

26

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.

27

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0676%3A14. Public record. Not legal advice.