Several retired police officers filed a state court action against the city they worked for, alleging that, while working as police officers they also worked as security officers at two facilities owned by the city, but that the city failed to pay them overtime compensation when their combined off-duty and regular-duty hours exceeded 40 per week, in violation of Fair Labor Standards Act (FLSA). After removing the action to federal court, the city moved for summary judgment. The city gave its police officers the opportunity to earn extra income by performing assignments during their off-duty hours. Section 407.00 of the police department’s General Orders, titled “Off–Duty Police Employment,” explains the city’s general policy regarding off-duty assignments and established the procedures officers must follow to participate in such assignments. Clark v. City of Ft. Worth, 4:10-CV-519-A, 2011 WL 3268110 (N.D. Tex. July 29, 2011). Any officer who wished to perform off-duty work must follow the established procedures whether the anticipated off-duty employment is on public or private property.
Each of the plaintiffs worked off-duty assignments while employed by the city as police officers. Although the city approved the applications of officers who wished to be included on the off-duty assignment list, once an officer’s name is on the list, he or she decided whether to accept or reject a particular off-duty assignment. The city leased or rented the facilities to public and private third parties (“Licensees”) for use in a variety of events, such as charity balls, bridal shows, dog shows, concerts, corporate gatherings, etc. The Licensees at issue in this case are entities and individuals who are legally separate from, and in no way affiliated with the city. Id.
Prior to renting or leasing the Facilities, a Licensee entered into a written contract with the city. The contract required the Licensee to comply with all “federal, state, and local laws, statutes including all ordinances, charter provisions, rules and regulations of the City of Fort Worth; including all rules, regulations and/or requirements of the City of Fort Worth Public Events, Police and Fire Departments.” Of particular importance in this case is that the contracts and Guidelines and Regulations for the Facilities require the Licensee, at its “sole cost and expense,” to provide security personnel comprised of “off-duty Fort Worth Police Officers.” Id. A Licensee is additionally required to provide security in the form of off-duty police officers for the Licensee’s move-in/move-out of the Facilities, or any time alcohol is served.
When contracting for use of the Facilities, Licensees generally work directly with event coordinators employed by the city, and do not contract directly with the police officers. The city determines the minimum number of off-duty officers required for an event; however, the Licensee is then afforded an opportunity to provide input as to its specific requirements, such as any additional officers needed above the minimum, specific locations at the event where the officers are to be stationed, and the officers’ start and end times. A form summarizing the Licensee’s requirements is prepared and submitted to the Licensee to approve or make such changes as the Licensee desires. When all requested changes are made, or if no changes are made, the Licensee is required to sign a form indicating its final approval of the number of officers to be used for the event, the officers’ work schedule, the amount of the officers’ pay, and the time frame within which payment is to be made.
Licensees are responsible for paying the off-duty officers directly. On the majority of occasions the Licensees issue checks, drawn on the Licensees’ bank accounts, directly to the police officers who performed the off-duty assignment. Licensees require the off-duty officers to provide their tax identification numbers and execute an IRS Form W–9 prior to issuing payment. The city does not maintain a record of the hours officers work in off-duty assignments, nor does it report those wages to any taxing authority such as the Internal Revenue Service.
The district court stated that it appeared that the plaintiffs were “cherry-picking select lines and phrases from the General Orders and the Licensees’ contracts to bolster their argument that defendant controls the off-duty officers’ employment.” Id. Thus, when considered in light of all the evidence, there simply was no question that the Licensees control the off-duty officers’ employment, and that the Licensees, rather than defendant, are the “separate and independent” off-duty employers. Consequently, the court granted the city’s motion for summary judgment.