About Donovan Livaccari

Louisiana FOP Lawyer

New Orleans Emergency Rate of Pay

On March 11, 2020, Governor John Bel Edwards declared and a Public Health Emergency for the State of Louisiana as it relates to COVID-19. Also, on March 11, 2020, pursuant to a filing in Civil District Court for the Parish of Orleans, State of Louisiana, Mayor LaToya Cantrell declared a State of Emergency for the City of New Orleans. See Mayoral Proclamation of a State of Emergency due to COVID-19.

Mayor Cantrell’s State of Emergency proclamation directs the Superintendent of Police to take command and control over all police officers in the City of New Orleans pursuant to La. R.S. 40:1387 along with all authority typically given by such a proclamation. As a result of the State of Emergency, some city employees were placed on civil leave and told to go home. Another group of city employees was told to go home and perform their regular job duties from home. Finally, a third group of employees was told they had to report to work at their regular place of work.

New Orleans Civil Service Rule IV, Sec. 11.1 states as follows:

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 weekly salary.
(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 work day 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)

(Section 11.1 adopted March 28, 1996, ratified by the Council April 18, 1996, amended May 15, 2006, adopted by the Council May 25, 2006, effective June 1, 2006, amended April 28, 2014, adopted by the Council June 2014, effective April 28, 2014)

Since there is a declared State of Emergency and some employees have been required to report to work and some employees were instructed not to report for work and were placed on civil leave, New Orleans Civil Service Commission Rule IV, Sec. 11.1 comes becomes effective as it relates to the pay for those employees required to report for work at their regular duty station.

There is no definition of “essential employees” or “non-essential employees.” However, based on Civil Service Rule IV, Sec. 11.1, we can determine who certainly constitutes an “essential employee” and who certainly constitutes a “non-essential employee.”

Reporting to work implies both the performance of job duties and the location those job duties are performed. Essential employees are those employees who were instructed to report to work at the employee’s regular place of work or another location as designated by the employee’s appointing authority as required to accomplish the employee’s job. Non-essential employees are those employees who are not required to report to any particular location or perform any job duties. Non-essential employees are those employees being carried under civil leave, of who were initially carried under civil leave at the beginning of the state of emergency. There is a third group of employees in the state of emergency related to COVID-19 — those who are working from home.

The emergency rate of pay was introduced to encourage employees to report to work as needed under emergency conditions. In other words, some employees have to come to work in spite of conditions which make reporting to work more dangerous than normal. In addition to merely encouraging employees to report to work as needed, the emergency rate of pay works to fairly compensate those employees who, because their jobs do not allow them to work from home, must expose themselves to the dangerous circumstances forming the basis of the state of emergency.

There is no question that the employees of the NOPD, NOFD, and NOEMS are essential employees. These employees are required to expose themselves to a potentially deadly virus by the very nature of their job. No matter what precautions are taken, our police officers, firefighters, and EMS personnel are required to be exposed to the threat imposed by SARS-CoV-2. In addition to our first responders, any other employee who is required to report to work at their normal place of assignment is an essential employee for the purposes of this declared State of Emergency.

I have heard several reasons why police officers should not get an emergency rate of pay:

Excuse #1: The City has not told essential employees to report to work while telling non-essential employees to stay home. This is not true for the reasons discussed above. There are employees who have been required by the city to physically report to the employee’s regular place of work to perform the employee’s job. There is also a group of employees who were either not required to physically report to the employee’s regular place to work or the employee was not required to perform any work at all while still being paid.

Excuse #2: This is a state of emergency that exists throughout the United States. Police officers around the country are required to work under similar circumstances. FEMA won’t be able to reimburse everyone. Article X, Sec. 10 of the Louisiana Constitution states that civil service rules have the force and effect of law. Therefore, New Orleans Civil Service Rule IV, Sec. 11.1 has the force and effect of law. Civil Service Rule IV, Sec. 11.1 does not state that essential employees are to be paid an emergency rate of pay only if the city is going to be reimbursed for the expenditure.

Excuse #3: Police officers already get extra pay from the State every month. State Supplemental Pay is not emergency or hazard pay. State Supplemental Pay is intended to supplement inadequate salaries offered to law enforcement officers by municipalities or parishes.

First responders exist in the same world as the rest of us. They have to worry about getting sick and bringing the virus into their homes with their families. However, they don’t have the option of working from home like I do, or not having to work at all and relying on civil leave. Finally, they still have to worry about things like getting shot while trying to protect people like me and you — which has happened twice in the last week to three officers.

Civil Service Rule IV, Sec. 11.1, which has the force and effect of law, states that during a declared state of emergency where some city employees are required to report to work in the field at a place determined by the city which is not home while other employees are told to stay home and are not expected to perform any work while being carried civil leave or are allowed to work at home requires that exempt and non-exempt employees who are required to report to work in the field at a place determined by the city must be paid time and one-half (1.5x).

I understand that the COVID-19 emergency has created a great deal of pressure on the city. However, that is no reason not to give city employees what is owed to them by state law. The color of the trip sheet doesn’t matter. Whether or not it is reimbursed doesn’t matter. Some employees are entitled to be paid 1.5x. If the city does not pay its employees what they are owed in this emergency, who is to say they will report to work as expected in the next emergency.

UPDATE: I have already written a letter to the Director of Personnel, Lisa Hudson, at Civil Service. I have asked that the matter be brought before the Civil Service Commission when they conduct a regular meeting. There have been a number of comments referencing a possible lawsuit. However, the Civil Service Commission has sole jurisdiction. So, it will be necessary to bring this issue before the Civil Service Commission before it can go to any court.

 

NOPD Update on the use of Civil Leave and COVID-19 11-Apr-2020

On April 1, 2020, I posted here on Signal108 about the use of Civil Leave as it relates to NOPD Special Order 6-2020. The point was to give a little clarity after speaking to Chiefs Goodly and Noel. However, it was with other items. So, I thought it would be useful to clarify again.

If any NOPD employee is ordered to go home and/or stay home because of COVID-19, then that employee should be eligible to use Civil Leave during the period he/she was ordered to be away from work.

If an employee is carried sick or annual for time that employee was ordered to be away from work, then that employee should send a 105 through the chain of command to Superintendent Ferguson requesting the use of Civil Leave for that time.

For example:

Example 1

Officer John Doe, assigned to the First District, is ordered to go home and undergo COVID-19 testing by Sgt. Platoon Supervisor on April 3, 2020 for some reason related to COVID-19 concerns. On April 8, 2020, Officer Doe is notified that his test results are negative for COVID-19. Officer Doe notifies Sgt. Supervisor of the negative test results. Sgt. Supervisor tells Officer Doe to return to work on April 9, 2020.

In the above example, Officer Doe should be eligible to use Civil Leave for the time starting April 3, 2020 through April 8, 2020. If Officer Doe is carried sick or annual for April 3-8, then he should send a 105, through the chain of command, to Superintendent Ferguson requesting the use of Civil Leave. The 105 would read something like this:

Civil Leave 105 Example

TO: Superintendent Shaun Ferguson
FROM: SPO John Doe, 1st District
SUBJECT: Request for Civil Leave

Dear Supt. Ferguson:

On April 3, 2020, I was sent home to undergo COVID-19 testing by Sgt. Platoon Supervisor because <insert COVID-19 reason – i.e. I was experiencing symptoms; I had a temperature; or supervisor believed I was exhibiting symptoms>. Sgt. Supervisor ordered me to stay home pending receipt of those test results. On April 8, 2020, I received the COVID-19 test results which were negative. I immediately notified Sgt. Supervisor of the negative test results and he instructed me to return to work on April 9, 2020.

In light of the foregoing, I am requesting that I be carried Civil Leave in ADP for the time beginning on April 3, 2020 and ending in April 8, 2020.

Sincerely,
SPO John Doe

APPROVED/DISAPPROVED
Sgt. Platoon Supervisor
APPROVED/DISAPPROVED
Lt. Platoon Commander
APPROVED/DISAPPROVED
Capt. Lejon Roberts, 1st District Commander
APPROVED/DISAPPROVED
Chief Deputy Superintendent Paul Noel, Operations Bureau
APPROVED/DISAPPROVED
Superintendent Shaun Ferguson

Example 2

Officer John Doe, assigned to the 1st District, is ordered to go home and to undergo COVID-19 testing because he is not feeling well on April 3. On April 8, Officer Doe is informed that his COVID-19 test was negative. However, Officer Doe is still feeling poorly. Officer Doe consults with his primary physician on April 8 and is diagnosed with something other than COVID-19. Officer Doe notifies his supervisor of the negative test results, Officer Doe also notifies his supervisor that while he was negative to COVID-19, his primary care physician has told him to stay home while he did not feel well.

In Example 2, Officer Doe will likely be carried sick leave for the whole time. Officer Doe should make sure to submit form 50’s as need be. If Officer Doe feels like there is a reason he should be carried Civil Leave, then he can submit the 105 requesting Civil Leave.

Example 3

Officer John Doe, assigned to the First District, is ordered to go home and undergo COVID-19 testing by Sgt. Platoon Supervisor on April 3, 2020. On April 8, 2020, Officer Doe is notified that his test results are positive for COVID-19. Officer Doe notifies Sgt. Supervisor of the positive test results. Sgt. Supervisor tells Officer Doe to remain out of work until he is cleared to return.

In the above example, Officer Doe should be eligible to use Civil Leave for the time starting April 3, 2020 through the time he is cleared to return. If Officer Doe is carried sick or annual for this timeframe, then he should send a 105, through the chain of command, to Superintendent Ferguson requesting the use of Civil Leave.

NFOP President Makes Big Announcement About Federal PSOB

On April 9, National Fraternal Order of Police (“NFOP”) President Pat Yoes, former Louisiana FOP (“LAFOP”) President, announced changes to the federal Public Safety Officers’ Benefit (“PSOB”) program as it relates to COVID-19 deaths.

If you are not familiar with the federal PSOB program, it is administered by the Department of Justice’s Bureau of Justice Assistance. Click here for more information on PSOB. The PSOB program pays a benefit of $365,670 to the family of a law enforcement officer killed in the line of duty. PSOB also pays up to $1,248/month for education expenses for the children of an officer killed in the line of duty. Click here for more information on the PSOB benefit, which changes every year. Click here for the PSOB Fact Sheet.

The PSOB includes deaths caused by “infections diseases” already, but establishing that an officer died from an infectious disease contracted in the line of duty can be difficult. In light of the current circumstances as it relates to the SARS-CoV-2 virus and COVID-19, the resulting illness, the Department of Justice published new guidance regarding PSOB benefits.

In general, BJA will find that the evidence shows a public safety officer with COVID-19 contracted it in the line of duty, when (1) the officer had engaged in line of duty action or activity under circumstances that indicate that it was medically possible that the officer was exposed to the virus, SARS-CoV-2, while so engaged; and (2) the officer did contract the disease, COVID-19, within a time-frame where it was medically possible to contract the disease from that exposure. In addition, in the absence of evidence showing a different cause of death, BJA generally will find that the evidence shows a public safety officer who died while suffering from COVID-19 died as a direct and proximate result of COVID-19.

Of course, we would prefer that everyone is able to make it home from work at the end of every shift safely. Unfortunately, with deaths piling up across the United States, we know that is not reasonable. Some law enforcement officers have already been killed by COVID-19.

The guidance from the Department of Justice as it relates to PSOB benefits essentially makes the families of law enforcement officers who die from COVID-19 presumptively eligible for PSOB benefits as long as it is not medically impossible that the officer contracted COVID-19 in the line of duty.

Merely coming into contact with members of the public or co-workers makes it medically possible an officer is exposed to the SARS-CoV-2 virus. Hopefully, at some point soon, we will have a vaccine for this virus. Until then, every additional close interaction with another human being carries with it an increased risk of being exposed to the virus. The DOJ recognizes this in the 1st part of its guidance.

Additionally, it looks like symptoms of COVID-19 can begin as far out as 14-21 days from exposure to the SARS-CoV-2 virus. Furthermore, once someone develops symptoms, those symptoms could last for 14-21 days (or longer). The DOJ recognizes this in the 2nd part of its guidance.

Finally, the DOJ recognizes that if an officer was suffering from COVID-19 at the time of the officer’s death, it is most likely the death was caused by COVID-19 unless there is evidence of a different cause of death.

In short, the DOJ’s guidance to BJA is that as long as it is not medically impossible for an officer to have been infected by the SARS-CoV-2 virus and to have contracted COVID-19 as a result of “line of duty action or activity,” then BJA is going to assume that officer’s death to be eligible for PSOB benefits.

While this does not make reporting to work any safer, maybe it can provide law enforcement officers will a little sense of security that their families will receive the PSOB should they make the greatest sacrifice while protecting the public during this coronavirus pandemic. Many thanks to our hometown President, Pat Yoes. Furthermore, thanks to Attorney General Barr and President Trump for their support of law enforcement during this unique time in our history.

The Fraternal Order of Police is the world’s largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges. We are the voice of those who dedicate their lives to protecting and serving our communities. We are committed to improving the working conditions of law enforcement officers and the safety of those we serve through education, legislation, information, community involvement, and employee representation. No one knows the dangers and the difficulties faced by today’s police officers better than another officer, and no one knows police officers better than the FOP.

NFOP President Pat Yoes is a Captain for the St. Charles Parish Sheriff’s Office.

The Louisiana Fraternal Order of Police, led by President Darrell Basco, has over 6,000 members statewide. The Crescent City Lodge, with President Walter Powers, Jr., has about 2,000 of those members in Louisiana. About 1,100 of those 2,000 members are active members of the New Orleans Police Department. The remainder of Crescent City Lodge members is mostly retired members of the New Orleans Police Department. The Crescent City Lodge represents about 90% of active NOPD officers from Recruits to the Superintendent of Police.

Note: While it is ultimately up to the deceased officer’s agency to submit the PSOB application, the Fraternal Order of Police has assisted agencies with applications for PSOB benefits on numerous occasions.

Donovan Livaccari,
General Counsel
Louisiana FOP

Safer at Home Video from LSU NCBRT

Below is a new video from the National Center for Biomedical Research and Training at L.S.U. The video provides some tips for people who work on the frontlines of the pandemic on how to make home a little safer for their families.

A Good Time to Prepare

www.nola.com/entertainment_life/home_garden/article_a3a19316-77c1-11ea-920c-7f8ea57235d3.html

I was reading the above article and thought this could be a good opportunity to remind members of the FOP Crescent City Lodge that the Crescent City Lodge provides its members with 4 hours of legal services for any family law needs and 2 hours of legal services for anything else. I can usually get a Last Will and Testament and/or a Living Will done for Crescent City Lodge members with no out of pocket expense.

Also, the NOPD continues to conduct internal investigations. I have been working with officers throughout this current situation. The FOP’s Legal Plan will continue to provide legal services as usual. Feel free to call about statements, whether you are the accused officer or not, extension hearings, or any other questions you may have about disciplinary investigations.

Donovan

NOPD Only – Supplies Poll

In an effort to gauge the supplies needed by members of FOP Crescent City Lodge #2, I would appreciate it if NOPD personnel could answer the following non-scientific poll questions. Please share with NOPD personnel and encourage NOPD personnel to answer the 3 poll questions.

NOPD Update 4-5-2020

I have been working with Porchjam Distillation on behalf of the Crescent City Lodge of the Fraternal Order of Police. Porchjam was very excited about helping NOPD officers on the front line during the COVID-19 pandemic. I really appreciate their help.

Picking up hand sanitizer for the FOP Crescent City Lodge

On Monday, April 6, I will he distributing 20 1-gallon bottles of hand sanitizer to each of the 8 District stations, SOD, and Headquarters.

Pochjam Distilleries personnel load up hand sanitizer

Officers are welcome to use these 1-gallon bottles to refill the bottles they are currently using. If you do not have a bottle, I would recommend looking around for a spray bottle you can repurpose for hand sanitizer. The hand sanitizer is watery and more suitable for a spray bottle than a squeeze bottle.

Hand sanitizer

The hand sanitizer is 80% alcohol and will do the job of sanitizing well. Hand hygiene is one of the most important aspects of staying well.

So, again, the FOP will be delivering 20 1-gallon bottles of hand sanitizer to each of the 8 District stations, SOD, and HQ on Monday, April 6. We will deliver more 1-gallon bottles later in the week.

Thanks, again, to Porchjam Distillation and Gordon Stewart, the founder of Porchjam Distillation.

Note: In case you did not see it, I was advised at the end of last week that the hand sanitizer in the floor of the Smoothie King Center was NOT available for individual officers use.

Update 4-6-2020: Jim Gallagher, Walter Powers, and I made deliveries of hand sanitizer today. Once we are able to get a feel for how we can best serve our members, and we will be in a better position to evaluate what we can do moving forward. Once again, thanks to Porchjam Distillation for their help with the hand sanitizer.

COVID-19 Roll Call Training from LSU NCBRT Academy of Counter-Terrorist Education

The below video was received from the LSU NCBRT Academy of Counter-Terrorist

Education. It is intended for use as roll call training for law enforcement relative to COVID-19.