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Circuit Court Holds Off-Duty Police Also Employees of Security Company

The U.S. Department of Labor brought suit against a company called Off Duty Police Services, Inc. (ODPS), arguing that the company improperly classified its workers as independent contractors. ODPS provides private security and traffic control services; many of its workers are off-duty sworn police officers. These police officers also have full-time positions working for a local law enforcement entity. All of ODPS workers were classified as independent contractors.
The DOL sued under the Fair Labor and Standards Act, arguing that all of ODPS workers were entitled to overtime wages. A federal district court reviewing the case found that ODPS workers who were not sworn officers should be considered employees. However, the court found the sworn officers to be independent contractors because they “simply were not economically dependent on ODPS and instead used ODPS to supplement their incomes.”
In reviewing the appeal, the Sixth Circuit noted the changing culture of work, “The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship.” Applying the “economic realities” test that utilizes six possible factors to determine whether a worker is an employee or independent contractor, the court found the police officers were employees of ODPS. The factors considered are: (1) the permanency of the relationship between the parties, (2) the degree of skill required for the rendering of the services, (3) the worker’s investment in equipment or materials for the task, (4) the worker’s opportunity for profit or loss, depending upon his or her skill, (5) the degree of the alleged employer’s right to control the manner in which the work is performed, and (6) whether the service rendered is an integral part of the alleged employer’s business. The circuit court concluded all but number five balanced in favor of finding that the police officers were employees.