In the current economic climate, moonlighting among governmental employees has grown significantly, particularly because of the demand for off-duty police officers. Private employers prefer hiring off-duty police officers over private security officers because of the law enforcement officers' police powers, training and presence.

However, moonlighting by police officers can be problematic because of the number of potential legal issues for the secondary employer, as well as for the municipality, if police action must be taken. If secondary employment is permitted but not controlled, the potential for liability increases significantly, especially if the municipality allows the officer to use department uniforms, weapons and equipment. 

Secondary employment also carries concerns involving the Fair Labor Standards Act, workers' compensation and liability insurance. To properly manage these risks, the department should have procedures in place to govern both off-duty employment that does not require actual or potential use of law enforcement powers, and extra-duty employment that is conditioned on the actual or potential use of law enforcement powers.

Off-duty employment does not create significant issues because there is no potential for conflict of interest or threat to the status of the department and municipality. Extra-duty employment, however, has those risks. Individuals, businesses or organizations should request officers for extra-duty assignments through the municipality, similar to contracting with a third party for security services. The municipality assumes responsibility for liability, workers' compensation and officer payment.

Benefits of municipal/police department control of extra-duty employment include:

    • Centralized control and administration; 
          –  Type of assignments permitted;
          –  Staffing, scheduling and supervision;
          –  Use of equipment;
          –  Clearly delineated officer duties and responsibilities;
  • Departmental policies and procedures in place to minimize risk;
  • Compensation policy that compensates officers on a standardized basis, complies with the Fair Labor Standards Act, deducts proper taxes and state retirement, and covers department-related costs;
  • Workers' compensation and liability covered by the municipal entity; and
  • Written agreement between the department/entity and the contracting party for the services to be performed.

Municipalities that have no direct control over secondary employment may run the risk of running up against the Fair Labor Standards Act governing payment of overtime. If the officer has to use his law enforcement powers, the time involved is considered "on the clock."

A number of police departments operate on 12-hour shifts and maximize the amount of time permitted before overtime pay begins. The Fair Labor Standards Act requires all covered nonexempt employees receive overtime pay at no less than time and a half their regular rates of pay, except for police and fire protection employees of a public agency which employs less than five employees in law enforcement or fire protection activities.

If the city does not take firm control of an employee's conduct while moonlighting, the employee may think he has a wider range of action he can take, which can increase liability for all parties. Having the city take full accountability for off-duty employment may appear to be a downside since the city essentially buys the liability, but it helps the city avoid the pitfalls that can occur if the employee is working independently and unsupervised.

This article was adapted from "Moonlighting: benefit or liability?" written by Chuck Thompson of Malone, Thompson, Summers, & Ott LLC of Columbia, SC.