Moonlighting Cop Case May Offer Clues on Gig Worker Rights

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By Chris Opfer

A debate over whether police officers who pick up extra cash as security guards can have two employers for federal wage-and-hour purposes may shed light on how the Trump administration eventually tries to tackle one of the biggest issues in the gig economy.

The Labor Department Nov. 21 asked a federal appeals court to find that a group of off-duty Kentucky cops doing security and traffic control work on the side are employees, not independent contractors, of Off Duty Police Services Inc., the staffing company that hired them. The DOL argues the officers can have two separate employers under the law even if they make the bulk of their income from their day jobs ( U.S. Dep’t of Labor v. Off Duty Police Servs., Inc. , 6th Cir. App., 11/21/17 No. 17-06071, appellate brief filed 11/21/17 ).

The department is working to protect “people who are sworn police officers who were denied overtime simply because they have more than one job,” a DOL official speaking on condition of anonymity told Bloomberg Law. The official didn’t say whether the multiple-employer approach may also apply to the growing number of gig workers who use online platforms to connect with customers.

The litigation comes as Congress and federal regulators are taking a closer look at labor issues in the gig economy, where workers including Uber and Lyft drivers, Handy home cleaners, and Instacart grocery shoppers are largely considered independent contractors. That means those workers aren’t entitled to minimum wage and overtime protections, aren’t covered by unemployment and workers’ compensation insurance, and usually don’t get health insurance and other benefits.

Some data suggest that many of the gig workers are using the jobs to supplement pay from more traditional employment or cobbling together income from various contractor positions. The DOL in the coming months will roll out a revised contingent worker survey aimed at better tracking workers in gig and other nontraditional jobs.

“It’s interesting because obviously a lot of gig workers do have more than one job,” Catherine Ruckelshaus, general counsel for the National Employment Law Project, told Bloomberg Law. “I think the fact that this argument is coming up and the Labor Department is pursuing it is important.”

Off Duty Police Services referred Bloomberg Law to attorney Raymond Haley, who declined to comment.

Workplace Reality

The Labor Department wants the U.S. Court of Appeals for the Sixth Circuit to reverse a federal judge’s decision ruling that the officers are not employees of the security staffing company who are entitled to time-and-a-half pay for all hours worked for the firm beyond 40 a week.

The department said the judge wrongly focused on the officers’ primary employment with their police departments to find that they could not also be employees of the staffing company. The judge ruled in the same case that a separate group of security workers who were not also police officers should have been classified as employees.

A worker is an independent contractor “if the economic realities show that he is in business for himself,” the DOL told the Sixth Circuit. The security officers were employees because they were paid on a fixed hourly rate set by Off Duty Police Services, made little investment in their own equipment, and performed jobs that didn’t require much skill, the department said.

The idea that a worker can have separate, multiple employers is fairly well settled “but hasn’t been explicitly tested in a while,” NELP’s Ruckelshaus said. “It’s good that DOL briefed it so strongly.”

Gigs Gain Attention

Labor Secretary Alexander Acosta recently told a group of lawyers its Congress’ job to decide whether decades-old labor and employment laws should be updated to reflect changes in the way people work. A third classification for gig workers and a portable benefits system are among some of the options that have been floated.

The Labor Department official told Bloomberg Law Nov. 21 that some existing laws “don’t necessarily reflect what’s going on in the real world” because they are “fundamentally geared” toward workers who have one job for most of their careers.

The police officers’ case illustrates the wide range of work arrangements that raise classification issues, including many that don’t involve online platforms.

The DOL earlier this year scrapped an Obama-era guidance document in which the department had said the vast majority of workers should be classified as employees. Acosta in public comments has quibbled with the form of the guidance, saying that it should have been subject to the notice-and-comment requirements of formal rulemaking. The labor secretary has not said whether he agrees with the analysis of the issues in the rescinded guidance.

The department official said the moonlighting cops case—which was originally filed during the Obama administration—is a signal that the department will continue to enforce the law on the books.

“This is an example of the department’s commitment to fair and firm enforcement,” the official said.

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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