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.”