Recently, Mayor Cantrell declared a state of emergency due to Hurricane Barry in the Gulf of Mexico. The Fraternal Order of Police (We) received numerous phone calls from officers concerned that the city would pay them correctly. I spoke with the police administration several times and Asst. Superintendent Noel assured me that Superintendent Ferguson was committed to making sure NOPD paid everyone correctly. An email to NOPDAll indicating that there could be a delay in when NOPD would be making payments for the declared state of emergency got officers worried again.
FOP representatives immediately checked with a random sample of officers to see if they had been paid correctly. The officers we spoke with consistently indicated they had been paid for the proper number of hours. Anyone who has ever tried to interpret a post event pay stub knows that making sure the number of hours is correct is the easiest part. We made a trip to the Payroll Section the same day as the email about delays. Payroll advised that they were processing all FLSA overtime as per usual and that no FLSA overtime would go unpaid or would be delayed. I spoke with Chief Noel who confirmed that was the plan.
New Orleans Civil Service Rule IV Sec. 11.1 states that if the Mayor declares a state of emergency and requests only essential employees come to work, then those essential employees are paid 1.5x the employee’s regular hourly rate for all hours worked.
Fortunately, the FOP has a good friend named Will Aitchison who is an expert in the Fair Labor Standards Act (FLSA) as it relates to public safety labor issues. Will wrote a book on the topic which you can review by clicking here. It is good to be familiar with, but for the purposes of this article, I am going to try to focus on the issue at hand. I exchanged emails with Will, and while I didn’t learn anything new, it was somewhat reassuring that I didn’t learn anything new.
An employee gets paid for compensable time. There are three aspects to being paid correctly in these circumstances: 1) Is the time compensable?, 2) If it is compensable time, is it overtime?, and 3) in New Orleans, is it subject to Civil Service Rule IV Sec. 11.1?.
IS IT COMPENSABLE TIME (Time you get paid for)?
As you might imagine, some people believe that time spent merely thinking about work is compensable time,
“I sat in my recliner and thought about how these armed robberies we’re connected for hours. I should get paid for that.”
Whether time is compensable or not depends on how restrictive your employer’s requirements are regarding your free time. For example, no drinking allowed, in and of itself, is not a sufficient intrusion to make that time compensable. However, if you’re not allowed to drink, or sleep, or leave your residence, and you have to answer a work phone while wearing your uniform, that could be compensable time.
Issues we saw during Hurricane Barry revolved mainly around whether or not officers were allowed to go home. One problem we faced during Hurricane Katrina was when an officer was sent home at the end of a shift but unable to return the next day because of road conditions or other impediments. I was assigned to Traffic when Katrina hit. The Traffic Division spent the night of August 28-29, 2005 downtown at 650 Poydras St. That was the start of a long period of work for me. But, not everyone made out as well. The night after Katrina blew through New Orleans, there were flooded streets, but downtown was still largely passable. I parked my car on Poydras St. near Lasalle St. that night and the next day water was halfway up the wheels of my car. The next night, I found myself in the 100 block of St. Charles Ave. 8th District officers would just stroll over because they had been released from work, but there was nowhere to go.
Lesson learned: you might not be able to send everyone home when their shift was over.
For Hurricane Barry, some officers were told they had to sleep at the Convention Center. It was suggested to some officers that they should stay at the station (not required). As a result of different officers receiving different instructions and different types of instructions, the amount of compensable time could be different for two officers whose time and instructions appeared to be very similar
What it comes down to is that whether time is compensable is something that has to be determined on a case-by-case basis.
IS IT OVERTIME?
Once it is determined that time is compensable time, the question then turns to whether or not the time is straight time or overtime. The FLSA has different rules for different jobs. The rules for Firefighters or different than for police. In New Orleans, overtime is calculated using a 2-week pay period. So, any time exceeding 85.5 hours in a 2-week cycle is overtime. For non-exempt employees, overtime is calculated at 1.5x the hourly rate. For exempt employees, the overtime rate is calculated using the employee’s weekly rate of pay.
WHAT ABOUT CIVIL SERVICE RULE 4 SECTION 11.1?
The New Orleans Civil Service Commission has unique and exclusive jurisdiction over pay issues for employees of the City. This is only balanced by the power of the purse maintained by the legislature, or in this case, the City Council. Article X, Section 10 of the Louisiana Constitution states that any rules passed and implemented by the City Civil Service Commission have the force and effect of law.
New Orleans Civil Service Commission Rule IV Section 11.1 states:
Section 11. EMERGENCY RATE OF PAY
11.1 – If it becomes necessary for an employee (exempt and non-exempt) to work on any day when the Mayor of New Orleans has declared an official emergency and has requested that only essential employees report to work, the appointing authority should adjust the employee’s work schedule to allow another day(s) off during that work period as a substitution. If such a substitution is not possible, then, for working at such time, the employees shall be paid the following:
(a) All non-exempt employees shall be paid at a rate of one and one-half (1½) times
their normal rate for all hours worked.
(b) All exempt employees shall be paid at a rate of one and one-half (1½) times their
normal rate of pay. Normal rate of pay for exempt employees is defined as the
(c) In situations where the emergency lasts for less than a normal seven-day work
week, then exempt employees shall be paid at a rate of one and one-half (1½) times
their normal hourly rate for all hours worked subject to the maximum allowed for a
regular scheduled workday in keeping with Rule I, Number 40. Under no
circumstances shall an exempt employee receive pay from this section that exceeds
more than one and one-half times his normal weekly salary for an emergency event.
In all cases, this pay is to remain in effect until the Mayor announces the state of
emergency has ended or an announcement is made that City offices are open for business and employees are to report to work, whichever comes first.
(d) When the Mayor of New Orleans has declared an official emergency on a day in
which city offices remain open for business, exempt and non-exempt essential
employees (except for highly compensated employees as defined by the FLSA)
who are assigned to perform emergency/disaster field operations duties may receive
five (5) percent over their normal rate of pay while engaged in such duties during a
declared state of emergency. In cases where the emergency declaration extends
beyond four (4) weeks, a request for extension and reasons therefore must be
submitted by the Chief Administrative Office or other executive authority to the
Civil Service Commission for approval along with an anticipated end date and a list
of the essential employees who will remain in the emergency assignment. (amended
September 25, 2017, adopted by the Council October 26, 2017)
Almost all employees accrued overtime during the response to Hurricane Barry. In addition, because Mayor Cantrell declared a state of emergency, all regular rates of pay are increased by 1.5x. The increase continued until the Mayor rescinded the emergency declaration or non-essential offices were reopened. Since regular rates of pay were increased by 1.5x as a result of the emergency declaration, once an officer exceeds 85.5 hours in a 2-week pay period, then the FLSA requires payment of overtime in a timely fashion. There are no provisions for delays for any reason.