From our Winter 2019 e-newsletter
Late last year the Bureau of Labor and Industries (BOLI) issued a report detailing violations of wage and hour laws by the Ashland Police Department regarding trainees at the DPSST Academy. In November of last year, BOLI sent a letter to all law enforcement agencies alerting them of these violations as BOLI’s findings were likely to affect all police agencies in the state that send trainees to DPSST.
This article outlines BOLI’s findings and what they mean to your Police (and Fire) Departments. BOLI focused solely on law enforcement agencies, but its order also affects Fire Departments or Districts that send trainees to DPSST.
The DPSST police academy is a 16-week course. Generally, trainees are in classes from 8:00 am to 5:00 p.m. with an hour lunch and ten-minute breaks. In addition to the class time, trainees are typically required to (1) attend the Colors ceremony; (2) complete writing assignments; and (3) complete a community policing project. Often these extra assignments take place outside of the normal 8:00 a.m. to 5:00 p.m. class time. Traditionally, trainees only reported 40 hours per week on their timecards.
Based on this information BOLI concluded the following:
- Time spent on projects and activities outside of the normal 8:00 a.m. to 5:00 p.m. class time is “time worked” and should be paid.BOLI based this finding on various federal and state laws. 29 CFR Section 785.11 states that “work not requested by suffered or permitted is work time” and must be paid. ORS 653.010(11) defines “work time” to be “both time worked and time of authorized attendance.” Finally, OAR 839-020-0004(19) defines “hour worked” to be “all time the employee is suffered or permitted to work.” Trainees typically work more than 40 hours in a work week and BOLI “strongly recommends” that trainees be paid for all time worked while at the academy. Although BOLI only specifically analyzed law enforcement agencies, these rules apply equally to police and fire agencies.
- Overtime pay may not be required unless your CBA mandates it.Generally, employees are entitled to the overtime rate of time-and-one-half for hours worked in excess of 40 hours per week. However, ORS 653.269(3) creates an exception for employees engaged in “law enforcement activities,” which includes time spent attending basic training. OAR 839-020-0250. However, as BOLI correctly pointed out, you must review your Collective Bargaining Agreement, as that agreement may require overtime be paid at lower thresholds than required by state law. Again, this statute and administrative rule also apply to those employed in “fire protection activities.”
- Employers should require all trainees to maintain accurate records of actual hours worked.ORS 653.045 requires employers to maintain records showing “actual hours worked” each week or pay period and OAR 839-020-0080(1) requires employers to maintain records showing the “hours worked each workday and total hours worked each workweek.” Thus, it is important for all trainees, whether police or fire, to accurately record all time worked while at the academy.
What this means to your Police and Fire Departments:
- Require that employees accurately record their time. To help facilitate this, employers should review the academy daily schedules (see link below) and have a policy, rule, or practice which outlines what hours are “work time” and what hours are not.
- Pay your trainees for all time worked.
- Check your CBA and personnel policies. BOLI did not order that overtime must be paid for all hours over 40 in a workweek, but your CBA or personnel policies might have different overtime requirements or obligations.
- If you rely on the FLSA 7(k) exemption to avoid paying overtime after 40 hours, call us to discuss if this exemption should be used while at DPSST.
- If you offer conditional offers of employment rather than hiring trainees, call us so we can discuss the pros and cons of this approach.
DPSST Class Schedules: https://www.oregon.gov/dpsst/Pages/default.aspx