Most officers are aware of the protections afforded under the Fair Labor Standards Act (FLSA). Generally speaking, the FLSA governs the payment of overtime, and how that overtime is calculated. The most prevalent litigation today involves donning and doffing claims, as well as claims that the employer has failed to provide on-call or canine pay. However, many officers are unaware that the FLSA also contains a strict anti-retaliation provision.
The anti-retaliation provision protects officers from retaliation for enforcing their rights under the FLSA or for making a wage and hour complaint. Thus, any officer who has asserted his or her rights, for example by participating in a donning and doffing lawsuit, would be protected under the FLSA from retaliation. Employers who willfully violate the FLSA can be fined up to $10,000, or imprisoned for up to six months. Officers may also bring a civil action to recover any damages, including punitive damages and emotional-distress damages. With the influx of FLSA lawsuits, subsequent retaliation lawsuits are certainly on the rise.
One such case involves Officer Dean Oshiro, of the Santa Monica Police Department. Up until 2007, Oshiro was an experienced and well-regarded member of the Santa Monica Police Department. He had been an active volunteer at numerous department functions. One such function was an annual golf tournament, put on by the City aimed at raising money for various charities. As was the department's practice, Oshiro was paid occasionally for some of the time he spent volunteering. Some things were done on duty, others were not.
In December 2007, Oshiro informed Chief of Police Tim Jackman that he would no longer be volunteering his time for the upcoming golf tournament and that he could no longer afford to work for free. Chief Jackman went ballistic, verbally attacked Oshiro and immediately booted him off the SWAT team in a room full of witnesses. Later, he threatened Oshiro to volunteer, alluding to the fact that if he did not volunteer, Oshiro would not be promoted to sergeant. Oshiro had earlier tested for sergeant and was next on the list to be promoted.
After these threats did not work, Jackman then suspended Oshiro for 200 hours based upon clearly bogus allegations of misconduct. Oshiro then received a poor evaluation, all because Jackman was upset that Oshiro refused to work on the golf committee.
After being bombarded with these numerous acts of retaliation, Oshiro contacted Lackie, Dammeier, McGill & Ethir to determine his rights. After consultation, it was agreed that the most appropriate recourse was under the FLSA. Accordingly, Lackie, Dammeier, McGill & Ethir filed a FLSA retaliation lawsuit, alleging that Oshiro's refusal to volunteer his time was essentially a wage and hour complaint. The theory was that the FLSA does not allow officers to volunteer for virtually the same work that they are paid to perform. By paying Oshiro for volunteering on some occasions, the City could not legally allow him to volunteer on others. The argument then became that Oshiro's refusal to work for free was a protected activity under the FLSA. Jackman's actions against Oshiro could then properly be characterized as retaliation in violation of the FLSA.
A federal lawsuit was filed on Oshiro's behalf, alleging retaliation by the City and Chief Jackman. To the City's credit, the appropriate City personnel intervened and quickly worked to resolve the matter, saving the City embarrassment and money. Oshiro was returned to SWAT and had his 200 hour suspension dramatically reduced to 20 hours. More importantly, Oshiro was allowed to remain on the active promotional list. He was later promoted to sergeant.
Sergeant Oshiro credits his counsel for their "outside the box" thinking and the aggressiveness they exerted in working to protect his rights.
ABOUT THE AUTHOR: Michael A. McGill is an LDF panel attorney and partner with the law firm of Lackie, Dammeier, McGill & Ethir, representing police officers and their associations in all labor and employment related litigation.