Settlement reached in City lawsuit

By Nick Gosnell
March 31, 2014

The McPherson City Commission approved a settlement agreement on Monday with three former McPherson Police officers over violations of the Fair Labor Standards Act. City Attorney Jeff Houston read the following statement at the meeting Monday morning to the City Commission.

Houston read, "As you are aware, the City is a defendant in a collective action brought by two former police officers. The allegations underlying the lawsuit allege the City violated the Fair Labor Standards Act by not appropriately compensating patrol officers in two situations. First, some patrol officers were picked up and dropped off at their house prior to shift. It was called the Hot Seat program. While the program was very popular among the officers as a way of operating as one car families, the officers were technically subject to being dispatched on a call if one arose while en route. In addition, all patrol officers had a briefing ten minutes prior to their shift time starting.

When the program was initiated sometime prior to 1972, they were lawful. However, in the mid 1980's the Fair Labor Standards Act became applicable to cities. But, it does not appear that the programs were ever reviewed or changed. The first question raised about the program occurred when the City was handed a complaint filed in Federal court asking for certification of a collective action, this is much like a class action, and for damages and attorney's fees. After investigating the complaint, the City immediately ended the Hot Seat program and all officers are now required to report to the Law Enforcement Center at the beginning of their shift. Second, shift briefings were restructured to make sure all time in a briefing is compensated time. Third, the City made a payment for back pay to all officers calculated for two years, which is the applicable statute of limitations, and for ten minutes, which was the standard report time for old pre-shift briefings.

The plaintiffs continued with their case in an attempt to gather a class. Once the time line ended for joining the suit, the class consisted of only three former officers. No current officers in the department were willing to join in the lawsuit. The suit then proceeded with only those three potential plaintiffs.

Thereafter, the city entered into settlement negotiations and have reached a tentative settlement with these three officers, subject to both your approval and, ultimately, court approval. In the settlement, the City is agreeing to pay an additional five minutes of compensation for the two year period.

1. There was sufficient evidence that, while the pre-shift briefing was ten minutes, those getting picked up in the Hot Seat program were getting picked up five minutes early.

2. The City is agreeing to pay liquidated damages equal to the amount of back pay. Under the Fair Labor Standards Act, the lost wage is essentially doubled by the required liquidated damages. If back pay is appropriate, liquidated damages are awarded.

3. The City has not agreed to pay damages for a willful violation. As I have discussed, the City was operating on tradition, but there is no evidence that the city knew that there was an issue and ignored it before the suit was filed.

The City has agreed to pay a nominal 25% of the willful damages as a nuisance settlement, which is significantly below the cost of defense for this portion of the claim.

Finally, under the FSLA, attorney's fees are awarded. We have reached an agreement on the attorney's fees. In total, the amount of two years back pay for the extra five minutes, liquidated damages and nuisance damages on the willful claim and attorney's fees total $38,019.61. Of that, plaintiff's attorney's fees are $28,336.48.

Based upon all the relevant facts, not the least of which is the high cost of litigation, where the City must not only pay for its defense, but also must pay for the plaintiffs' counsel, it is the City's trial counsel's recommendation, and the recommendation of which I concur, that the City accept this settlement agreement."

Following the City's acceptance of the settlement agreement, McPherson Police Chief Robert McClarty had a recommendation to the City Commission with regard to current officers that were not part of the lawsuit, but who could have been.

McClarty said, "Gentlemen, as you know, no current patrol officers of the City joined this lawsuit. They were completely free to do so, but evidently believed that it was not the route they wanted to be associated with. However, they also worked the same shifts in question as the former officers who decided to sue first. If it was proper to pay the plaintiffs for that time, I think it is right to give our current patrol officers the same treatment, even though they did not join the lawsuit. Last fall, the city made such a payment to the current officers equal to the ten minutes, but the additional five minutes and the liquidated damages have not been paid. I am requesting that the City make a supplemental payment to any current patrol officers who have qualified for the lawsuit, who received the prior payment. And, if the officer fits into that category, would receive payment to equal back pay for the five minutes for the relevant two year period. In addition, each current patrol officer who received the checks for ten to fifteen minutes will also receive payment equal to the previous checks. In other words, whatever an officer received would be doubled, and if the officers had participated in the lawsuit, they would have received the same doubled amount as liquidated damages under the law. So, I am requesting that they receive that amount, anyway." That amount was set not to exceed $65,000. Both motions were passed unanimously by the McPherson City Commission.