By Chuck Thompson of Malone, Thompson, Summers & Ott LLC, Columbia, SC
In these economic times, employees are increasingly supplementing their income by seeking additional work by moonlighting. This area has pitfalls no matter what employers do. It is particularly a problem for governmental employers. Moonlighting by police officers is particularly problematic although the points apply to all governmental employees to a lesser extent.
There are a number of potential legal issues that can arise from police officers performing outside work. It is not unusual for them to do so because private enterprises frequently need temporary trained security personnel. The particular concern that arises from police officers’ moonlighting comes mainly when they have to take action against a person. By ordering someone to do something, such as to leave the premises, or when threatening arrest or other force, officers are invoking their legal authority. They possess such legal authority because of their position with the government as a law enforcement officer. Therefore, when they act, they are potentially embroiling their governmental employer in potential liability.
For example, a police officer is providing security for a fast food restaurant and some teenagers start getting rowdy. He first tells them to leave. When they refuse, he threatens them with arrest, grabs one of them and shoves him out the door. That officer has invoked his law enforcement authority, and the teenager might justifiably conclude he is acting in a law enforcement capacity. If the officer used excessive force or made an improper arrest, a court might rule the city has liability for his actions under federal law.
What if the employee is injured while moonlighting? What if the police officer witnesses a crime while on his security duty? What if he attempts an arrest and receives an injury while chasing the suspect? The South Carolina Workers Compensation System might possibly view this as a compensable injury. Although not directly addressing the point, the commission has signaled it would view such an injury as the city’s responsibility.
Another area of concern is wage laws. Would an officer be entitled to overtime if his hours, including moonlighting hours, exceed 40 hours a week (or whatever overtime trigger the city properly uses)? If an officer is performing duties for a private employer that an on-duty officer might normally perform, the answer might be yes.
One approach that is increasingly used by employers is embracing and controlling the practices. Unfortunately, without the city taking firm control of an employee’s conduct while moonlighting, the employee may think he has a wider range of action he can take. Free from the controls, supervision and policies the city may have in place for regular on-duty conduct, the employee might mistakenly think he can take action that normally he could not. For example, he might feel he can use physical force in situations where the city would not allow it. He might feel he can perform a search or arrest using rules of his own creation.
- Legal authority
- Worker’s compensation
- Wage laws
- Employee conduct – lack of supervision, policy adherence
Whether wage or tortious liability exist depends on a number of factors and is a fact-intensive inquiry. Courts and commissions consider such things as whether the officer is carrying his service revolver, using his patrol car, displaying his badge, invoking his statutory authority to take action, and other factors almost innumerable. In short, it is an area ripe for litigation.
It certainly is possible for governmental employers to avoid liability by taking firm and effective action to separate on-duty authority from conduct while moonlighting. Such a policy might, for example, prohibit the use of city equipment, prohibit the wearing of city uniforms, and prohibit an officer from using his law enforcement authority.
Another strategy governments have used to control this potential liability is to take firm control of it by subjecting moonlighting activity, particularly in the case of police officers, to city authority. Effectively, the city “employs” the officer for moonlighting activity and contracts with the other employer to provide security services. The downside of this policy is that the city clearly has “bought” liability for an officer’s conduct while moonlighting. However, this way the city can impose the safeguards it already has in place through supervision and policies to control this liability.
The information in this article should not be construed as legal advice. It does not advocate a specific approach to handling moonlighting but merely points out the potential liability in broad terms and suggests approaches on how to deal with it. Local government officials should develop a specific approach and all of its ramifications, and consult with legal and other professionals with expertise in the area. Please consult your attorney. South Carolina Municipal Insurance Trust and South Carolina Municipal Insurance and Risk Financing Fund members may contact the Municipal Association’s Risk and Safety Services for help in determining the most appropriate way of dealing with their moonlighting issues.