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.