Diana Moffat

From our Winter 2020 e-newsletter

In January of the new year, the Oregon Department of Public Safety Standards and Training’s (DPSST) will once again be opening its training grounds to newly hired police officers, among others, from departments around the State, who seek to obtain their Basic Police Certification through attendance at what is known as the Training Academy.

As you may recall, however, there was some legal wrangling around this time last year regarding officer paid overtime, or lack thereof, while attending the Academy. In the 2018 case, a new Officer from the Ashland Police Department made a complaint regarding the failure of his department to pay him for, what he claimed were, 60 or more hours of unpaid overtime. Following the complaint, the Bureau of Labor and Industries (BOLI) conducted an investigation.

In November of last year, BOLI provided a state-wide “to whom it may concern” letter to Oregon law enforcement agencies regarding the tracking of hours while an agency’s employee is in attendance at the training academy and any resulting overtime hours.

Now is a good time to review the guidance from BOLI and to explore some options for your agency

The Academy training course lasts for 16 weeks. The normal class schedule runs Monday through Friday from 8AM to 5PM with an hour for lunch, and various breaks throughout the day. There are some exceptions to this schedule. When trainees attend the Academy, they are paid by their hiring agency, not by DPSST. In addition, and to further complicate things, DPSST does not track trainees’ hours while they are at the Academy. It had been a fairly standard practice for an agency to pay its Officers, while attending the Academy, at a straight 40-hours per week, despite frequent occasions when a trainee is required to put in additional hours.

As part of BOLI’s investigation, it made the following findings, in part:

1)    “Title 29 of the Code of Federal Regulations, §785.11, states that “work not requested but suffered or permitted is work time” and must be paid. In addition, Oregon Revised Statute (ORS) 653.010(11) defines “work time” to be “both time worked and time of authorized attendance.” This is further clarified by Oregon Administrative Rule (OAR) 839-020-0004(19), which defines “hours worked” to be “all time the employee is suffered or permitted to work.” Finally, OAR 839-020-0040 expands on this to add that “if the employer knows or has reason to believe that work is being performed, the time spent must be counted as hours worked.” Training time must be paid as hours worked if the training is during the employee’s regular working hours, attendance is mandatory, the training is directly related to the employee’s job and the employee performs productive work during their attendance. OAR 839-020-0044.

Trainees at the Academy often work more than 40 hours per week. Such trainees are often only getting paid by their agencies for 40 hours per week. The Bureau strongly recommends that agencies sending trainees to the Academy pay the trainees for all hours worked, including time spent at Colors and completing assignments at the Academy. Failure to do so could expose these agencies to liability for unpaid wages and civil penalties.

The above is fairly straight forward. A law enforcement agency should not ignore actual hours a trainee is required to put in to complete his or her training at the Academy.

2)    “Generally speaking, hours worked in excess of 40 hours per week would be considered overtime and be required to be paid at one-and-one-half the employee’s regular rate of pay. However, ORS 653.269(3) carves out an exception to this general rule for public employers whose employees are engaged in “law enforcement activities” as defined. Oregon Administrative Rule 839-020-0250 states that attending basic training at the police academy is considered a “law enforcement activity.”

While trainees at the DPSST must be paid for all hours worked, the Bureau does not believe that said trainees must be paid overtime unless there is a collective bargaining agreement in place that states otherwise.”

This is better known as the FLSA 7(k) exemption. Your agency can negotiate with your police union, assuming that they are unionized, for an extended work cycle for their Officers who are attending the Academy, before overtime hours would have to be paid. (*Note you would still have to pay straight time for all hours actually in attendance at the Academy.)

Here is some sample language from a recent Memorandum of Understanding (MOU):

The parties acknowledge and agree that for the purposes of Academy training, officers will be placed on an FLSA 7(k) exemption using a 14-day work period, with the statutory maximum hours of straight time set at 86 hours in the work period. Employees will only earn overtime for hours worked over 86 hours in the 2-week work period. Overtime hours beyond the 86-hours must be pre-approved by a supervisor or the Chief of Police. This will include any non-mandatory, or optional, classes.” (emphasis added)

If you don’t have something like the above in place, you will pay overtime just as you would pay to any of your Officers.

3)    Finally, BOLI noted that: “Oregon Revised Statute 653.045 requires employers to maintain records showing ‘actual hours worked’ by each employee on a weekly and per-pay-period basis.”

Employers need to have trainees keep track of their hours while in attendance at the Academy.

In response to the BOLI investigation, DPSST updated their “Student Rules and Regulations” handbook, available on DPSST’s website, to state, in part that:

“While DPSST makes a good faith effort to ensure a 40-hour training week, there are circumstances that may occasionally require student time beyond 40 hours. Any overtime compensation for an Academy activity or training function is the responsibility of the student’s agency subject to that agency’s policy or collective bargaining agreement. Students should immediately report any overtime to their employer. Students must receive agency authorization prior to participating in optional evening or weekend training offered by DPSST by completing and submitting the Optional Training Release Form to the Class Coordinator.”

COVID-19 Guidance for Implementation of Your Leave Policy

The Local Government Law Group

From our 2020 Special Edition e-newsletter

Below we provide you some general guidance regarding leave issues and COVID-19.   Since many leave issues are dependent on the facts of your individual situation, we cannot provide legal advice on these issues through this article.  Please do call us if you have questions about your individual leave policies and practices.

  • Know your policies.  Review your leave policies.  You’d be surprised how much guidance and information is already in your policies.  Don’t forget to review and reconcile your collective bargaining agreements or police and fire SOPs, which can sometimes provide different standards than your personnel policies.  After your review, if you believe that some of your policies or practices may conflict with each other or if they don’t provide clear guidance, call us and we can work through the ambiguities with you.
  • Know which leave laws your government must follow.  Call us if you would like more information regarding this matter.  Generally speaking, here is a simple breakdown:
  1. FMLA provides up to 12 weeks of unpaid, protected leave and only applies if your government has 50 or more employees within 75 miles of your worksite.
  2. OFLA provides up to 12 weeks of unpaid, protected leave and applies to employers with 25 or more employees in Oregon.
  3. Oregon Sick Leave Law provides 40 hours of unpaid, protected leave and applies to all employers who do not already have a comparable or better sick leave program.
  4. Oregon Sick Leave Law provides 40 hours of paid, protected leave and applies to employers who do not already have a comparable or better sick leave program who employ at least 10 employees (6 in Portland).

Once you have determined which laws apply to your government, then you must apply them.  Applying the above laws can be tricky.  Please call us or an HR professional for assistance if you need help.  All employees must meet the individual laws’ eligibility requirements to qualify for the leave benefits, which generally include working for a defined period of time and certifying that the employee or a qualifying family member has a serious health condition.  Generally speaking, OFLA and FMLA offer 12 weeks of unpaid protected leave for qualified employees, but under certain conditions the protected leave can be extended for up to 36 weeks.  Remember also that Oregon’s Sick Leave Law allows a qualified employee to take sick leave to care for well children whose schools have been closed by this emergency.

  • Consider the Details in Advance. After reviewing your policies and determining which laws apply to you, discuss the following questions with your leadership team, which should include an employment lawyer or HR professional to help guide you:o  Who are your critical employees and how will they continue to provide critical services?

    o  If an employee needs time off because they are sick/exposed or need to care for sick children or a spouse and they have no accumulated paid sick leave, can they use vacation or other leave?  In what order?  Do they need special permission to proceed out of order?

    o  Do you have any employees who have banked excessive sick or vacation leave?  Is now a good time to require them to burn it?

    o Will you allow some or all employees to go “in the hole” regarding their leave accounts?  If so, how much and under what conditions?  If you make a distinction between employees, what are the criteria you are using?

    o  If you are making any changes to your policies or practices, do you need to bargain them with your union?

    o  If our office closes, will employee time away from work be paid or unpaid?

    o  If I come in to work and am told to leave, will my time away from work be paid or unpaid?

    o  If I’m not sick and my family is not sick, but I need time off because my kids’ school is closed, can I take it?  Will it be paid or unpaid?

    o  How will you apply your leave donation policies during this time?

    o  What are our telecommuting policies?  Do they apply to all employees?  Do I need to call in or track my time while telecommuting? What are the job expectations for telecommuting?  What technology assistance do I need to telecommute?  What confidentiality concerns may arise with some telecommuting employees.

Again, when in doubt, call your HR professional or employment attorney.  These issues can be complex, but once you know your policies and laws, you can craft a reasonable, helpful leave program that supports your organization and employees during this temporary crisis. 

Public Meetings Update in the Face of COVID-19

The Local Government Law Group

From our 2020 Special Edition e-newsletter

During the COVID-19 emergency and social distancing, we’ve received questions on how Oregon governments can continue to comply with the public meetings laws over the next several weeks.  This article provides some generic advice and does not take into account particular council or board rules or charter provisions.  Please contact us to work together on your specific issues.

Public Meetings:  Public Access vs. Participation.  We have now seen emergency declarations take shape at all levels of government.  These declarations sometimes suspend certain regulations and help speed governmental responses.  However, remember that even in these unusual times, local governments must still operate within the confines of Oregon’s public meeting laws.  The general rule is that the public meetings law requires “open” meetings.  This “open meeting” requirement pertains to the public’s right to attend and observe your meetings.  Generally speaking, there is no general public right to participate in a meeting–or to provide comments or speak directly to the Council.

This is true for most public meetings, but it is not true for a specific subset of public meetings where the Council is dealing with “quasi-judicial” matters (such as an employment action appeal or a land use hearing), budgetary matters, or has otherwise promised the public a right to participate.  If you have one of these types of meetings and you are trying to promote social distancing, you should contact your legal counsel to discuss the best way to proceed during the COVID-19 emergency.

Virtual Meetings:  Some Considerations Remote, virtual, or phone-in meetings remain a good option for your governing body, so long as you take into account these types of meetings where the public is entitled to participate and address how the public will provide comments and participate.  Remember also that if anyone requests any ADA accommodations (such as a request to have a sign language interpreter be on screen during a video meeting or a request for closed captioning), you must be prepared to provide a reasonable accommodation.

Here are some options your Council or Board should consider:

  1. Determine whether you need to have the meeting at all.  You can always cancel or reschedule a meeting.
  2. If you have business that is required, you can trim down the agenda to just the essential business.
  3. If you must have a meeting, consider social distancing requirements for everyone (including the governing body).  Some or all policy-makers can call-in to the meeting and participate via phone so that the dais is not full.
  4. If a meeting needs to take place, institute social distancing measures for the audience as well – essentially capping the number of attendees.  You can also direct others to the live stream, or to another area within City hall where you can set up a phone or video link.
  5. Institute a written public comment procedure for your public comment agenda item.
  6. If you do have a public hearing agenda item, you can institute a procedure where folks are required to give notice of their intent to participate and the meeting location is adjusted to allow those folks access to the live meeting.  In other words, you might shuffle folks between the remote location that is using the conference line and the meeting room (to maintain social distancing).  Or you could set up a public computer that allows participation with the governing body via skype or Zoom.
  7. Provide adequate notice to the public regarding any of the above meeting mechanisms you decide to use.  The agenda can be amended and annotated to note the special procedures being used.  Posting a sign at the meeting room with these mechanisms is also a good idea.
  8. Any agenda and meeting notice should contain a provision that requests anyone with cold or COVID-19 symptoms to please stay out of the meeting.
  9. Providing/distributing agendas and meeting packets with greater lead-time will be more important under these meeting mechanisms.