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Law Enforcement, Corrections,
Private Security, and Civilian
Risk Management

Law Enforcement Off-Duty Employment Considerations

(© Copyright 2001 by LAAW International, Inc.  All rights reserved.)

Off-Duty Employment - often referred to as Secondary Employment, Extra-Duty Employment, or Off-Regular-Duty Employment

Initial Questions:
1.   Does the department view its officers as responsible for enforcing the law when
     off duty?

2.   Has the department taken any action(s) to limit an officer’s off-duty authority?

3.   Basic Types of Off-Duty Employment:

  1. Employment wholly unrelated to law enforcement
     
  2. Utilization of Authority:
    1. Pseudo law enforcement employment - e.g. security guard
    2. Employment where utilization of sworn authority is foreseeable
       
  3. Duration of Employment:
    1. Single event
    2. Recurring - randomly scheduled detail
    3. Recurring set schedule

4.   Establish Foundational Philosophy:

  1. No off-duty employment
     
  2. No off-duty employment utilizing sworn authority
     
  3. Off-duty employment utilizing sworn authority allowed:
    1. Officer has burden to persuade department to allow off-duty employment
    2. Presumption is that officer may engage in off-duty employment unless department has a valid reasonable justification for denial

5.   Will the officer's secondary employment:

  1. require the exercise of the officer's sworn authority?
     
  2. create a conflict of interest between the department and the secondary employer?
     
  3. create (uncompensated) liability for the department - including workers' compensation, supervisory/training liability, additional over-time, etc.?
     
  4. cause a deterioration or interruption in the officer's performance?
     
  5. cause the department to be tarnished because of the secondary employment?

6.   Questions to be Answered:

  1. What are the risk exposures associated with the law enforcement off-duty employment?
     
  2. Will off-duty employment be allowed?
     
  3. What types of off-duty employment will be permitted?
     
  4. What controls are placed on off-duty employment by the law?
     
  5. What other sources (e.g. collective bargaining agreement) control off-duty employment?
     
  6. What controls will be placed on off-duty employment by the department/employer?
     
  7. What policies, procedures, training, and supervision will be used for off-duty employment?

Main Types of Law Enforcement Loss Exposures:
7.   Third Party Liability

8.   Employment (Employer v. Employee) Liability

9.   Workers’ Compensation Liability

10. Indirect Costs:

  1. Diminished job performance
  2. Decrease in manpower availability
  3. Additional overtime costs
  4. Equipment repair/replacement costs
  5. Costs to medical care
  6. Costs to retirement system

Sample Cases - Off-Duty Employment:
11. Theater security case
12. Angelo Robinson - worst case for Pepper Spray
13. Minneapolis - Lt. Mike Sauro - $1,000,000 for minor injuries to a hockey player
14. Louisiana - civil disagreement over ownership of business
15. White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2000).

Agency's Arguments for Allowing Secondary Employment:
16. The presumption that there is a genuine public benefit when the department's
     officers work for other employers, and

17. Since the number of law enforcement personnel is often insufficient to meet the
     demands for service, the officers engaged in secondary employment are viewed
     as a readily available resource.

Secondary Employment Details that may Warrant Demand for Uniformed Officers:
18. Traffic control and pedestrian safety

19. Crowd control

20. Private security and protection of life and property

21. Routine law enforcement for public authorities - beware "similar work" for the
     "same employer" ﷓ Fair Labor Standards Act (FLSA) complications – See 29
     C.F.R. § 553.27 which deals with outside employment of law enforcement officers
     and the applicability of these hours as regular-duty hours. The FLSA specifies
     that the hours worked in an off-duty capacity may, under certain circumstances,
     be considered as having been worked for the law enforcement agency, and thus
     will be counted towards accumulation of FLSA overtime.

22. Plainclothes assignment

Barriers to Liability Exposures:
23. Seek risk exposure limiters:

  1. Consider alternatives to sworn authority - to enable action
  2. Utilization of other sources of authority to act - e.g. private security license

24. If utilizing sworn authority - then for all practical purposes officer is “on duty”

25. Supervisory and training type claims:

  1. Policy and custom (must be consistent)
  2. Training
  3. Supervision
  4. Other

26. Acceptable controls:

  1. Policy and procedure
  2. Training
  3. Approval mechanism
  4. Incident reporting and investigation

27. Insurance

28. Contractual risk transfer

29. Off-duty employer’s coverage:

  1. Third party liability
  2. Workers’ compensation
  3. Health care

Authority/Jurisdiction Analysis:
30. When does the off-duty officer have any authority above that of a citizen/person?

  1. Types of (other than citizen) authority available (and source of the authority):
    1. Full law enforcement authority
    2. Limited law enforcement authority
    3. Private security guard authority
    4. Retail security authority
    5. Other special types of authority
       
  2. Real authority - based on the law:
    1. Statutorily derived authority
    2. Authority created or extended by inter-department policy or custom
    3. Authority created or extended by officer’s statements or actions
       
  3. Perceived authority - that results in damages or loss:
    1. Perceived authority - created by the officer’s employer
    2. Perceived authority - created by the officer
    3. Perceived authority - created by the media

Limits on Secondary Employment:
31. Kinds of employment that may be performed ﷓ officers may be prohibited from
     holding jobs where there is:

  1. A potential conflict of interest between the officer's duties as a law enforcement officer and the duties to the officer's secondary employer:
    1. Fear that the officer's symbolic authority may be used improperly to serve the private employer
       
    2. Inherent problems of officers working in areas that are closely regulated (licensed), e.g.:
         (1) Businesses that sell and/or dispense liquor
         (2) Businesses that sell guns, lottery tickets, etc.
       
    3. The preclusion of work where the officer's authority would confer a special advantage to a private interest at the expense of the public interest
       
    4. Officer owned enterprises with inherent conflicts ﷓ e.g. security and private investigative services
       
  2. An unacceptable risk of temporary or disabling injury that could limit the officer's return to regular duty, e.g. boxing and wrestling
     
  3. A threat to the status or dignity of law enforcement as a professional occupation

32. Jurisdictional limitations on secondary employment?

33. Limits on compensation?

34. Limits on amount of extra-duty time allowed?

35. Limits on certain employers?

Major Management Models for Secondary Employment:
36. "Officer Contract Model":

  1. Main features:
    1. Each officer searches for his or her own secondary employment
       
    2. The officer independently contracts with the employer regarding conditions of work, hours of employment, and rate of pay
       
    3. The officer applies for permission to work the particular off﷓duty job that has been negotiated with the prospective employer
       
    4. The department grants permission to work that job
       
  2. Problems:
    1. The employer may pay the officer in cash for his/her work ("cash detail")
       
    2. Violation of Internal Revenue Code and state revenue codes

37. "Union Brokerage Model":

  1. Main features:
    1. The union becomes a third-party broker arranging the independent contracts between officers and private employers
       
    2. The union may search for paid details and set conditions for paid details, including rates of pay
       
    3. The union assigns the officers
       
    4. The union may bargain with the primary employer for secondary employment rights

38. "Department Contract Model":

  1. Main features:
    1. The department contracts with the employers for details
       
    2. The department assigns officers to the details
       
    3. The department pays the officers from (at least partial) reimbursements by the secondary employers

Additional References:

39. Legal Aspects of Off-Duty Incidents, Americans for Effective Law Enforcement,
     Legal Defense Manual, 79-6.

40. Private Employment of Public Police, National Institute of Justice Issues and
     Practices, by Albert J. Reiss, Jr., February 1988.

41. Outside Employment, Americans for Effective Law Enforcement, Legal Defense
     Manual, Brief No. 75-6, Section H, pages 12-15.

42. Peace Officers Acting As Private Citizens, Americans for Effective Law
     Enforcement, Legal Defense Manual, Brief No. 81-3, Section E, pages 19-43.

43. Off-Duty Conduct: Powers of Arrest, Model Policy, International Association of
     Chiefs of Police, publication of IACP/BJA National Law Enforcement Policy
     Center.

44. Off Duty or Secondary Employment, Model Policy, International Association of
     Chiefs of Police, publication of IACP/BJA National Law Enforcement Policy
     Center.

45. Actions of Off-Duty Policeman Acting as Private Security Guard as Actions
     "Under Color of State Law" Actionable under Civil Rights Act of 1871 (42 U.S.C.A.
     § 1983), 56 A.L.R. Fed. 895 (1982).

46. Liability of Municipal Corporation or Other Governmental Entity for Injury or Death
     Caused by Action or Inaction of Off-duty Police Officer, 36 A.L.R.5th 1 (1996).

47. Conduct or Activities of Employees During Off-Duty Hours as Misconduct Barring
     Unemployment Compensation Benefits, 35 A.L.R.4th 691 (1985).

48. Comment Note.–Private Person's Duty and Liability for Failure to Protect Another
     Against Criminal Attack by Third Person, 10 A.L.R.3d 619 (1966).

49. Acts of Off-Duty or Suspended Officer, 57 Am. Jur. 2d Municipal, County,
     School, and State Tort Liability § 436 (1988).

50. Performance of Public Duty by Off-Duty Police Officer Acting as Private Security
     Guard, 65 A.L.R.5th 623 (1999).

51. In Course of Employment: Off Duty Police Officer, 18 No. 10, Workers'
     Compensation Monthly, 8, October 1998.

52. Validity, Construction, and Application of Regulations Regarding Outside
     Employment of Governmental Employees or Officers, 62 A.L.R.5th 671 (1998).

53. The Long Arm of the Boss: Employee Off-Duty Conduct and the Reputation of the
     Employer, 15 LERC Monograph Ser. 9, 1998.

54. *7 in Course of Employment: Off-Duty Police Officer in Vehicle, Montgomery
     County v. Wade, 690 A.2d 990 (Md. 1997), 17 No. 8, Workers' Compensation
     Monthly 7, August 1997.

55. *9 in Course of Employment: Off-Duty Deputy, Blackwell v. Harris County, 909
     S.W.2d 135 (Tex.App.-Houston (14th Dist.) 1995), 16 No. 3, Workers'
     Compensation Monthly 9, March 1996.

56. [Internal Revenue] Service Rules Off-Duty Police Officers Were Employees of
     Gas Company, 9-15-95 West's Legal News 1990, 1995 WL 909566.

57. *725 When Off-Duty State Officials Act Under Color of State Law for the
     Purposes of Section 1983, 22 Mem. St. U. L. Rev. 725, Summer 1992.

58. *92 Private Employers of Off-Duty Police May Be Liable in Tennessee, 37-APR
     Trial 92, April 2001.

59. Private Employer Liability for Off-Duty Police Officer, 16 No. 3 Tenn. Employment L. Update 5, March 2001.