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Cypen & Cypen
NEWSLETTER
for
JULY 28, 2005

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. FLORIDA LAW ENFORCEMENT OFFICERS GET NEW DEATH BENEFITS, RIGHTS:

Chapter 2005-100, applicable to actions arising on or after July 1, 2005, is dubbed the “Deputy James M. Weaver Act.” The new law provides some important new benefits and rights:

Chapter 112.19(2)(b), the so-called “second” $50,000 payment in connection with death of a law enforcement officer, is amended to include accidental death occurring at the scene of a traffic accident to which the officer has responded or while the officer is enforcing what is reasonably believed to be a traffic law or ordinance.

Chapter 112.532(6), part of the law enforcement officers’ bill of rights, is amended to add a limitations period for disciplinary actions. Subject to certain specified exceptions, no disciplinary action, demotion or dismissal shall be taken by an agency against a law enforcement officer for any act, omission or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of misconduct. In the event that the agency determines that disciplinary action is appropriate, it shall complete its investigation and give notice in writing to the law enforcement officer of its intent to proceed with disciplinary action (within the 180 day period), along with a proposal of the action sought.

Chapter 943.22, the salary incentive program for full-time law enforcement officers, is amended to expand the definition of “accredited college, university or community college.” In addition to schools accredited by the Southern Association of Colleges and Schools, another regional accrediting agency or the Accrediting Council for Independent Colleges and Schools, a school may now be accredited by an agency or association that is recognized by the data base created and maintained by the United States Department of Education.

Chapter 2005-100 was approved by the Governor on June 1, 2005.

2. WAGE REIMBURSEMENT BY EMPLOYEE COULD VIOLATE FLSA:

Oklahoma law provides that if an employing law enforcement agency has paid the salary of a person while attending a basic police course, and if that person within one year after certification resigns and is hired by another Oklahoma law enforcement agency, the second employing agency or the person who received the training must reimburse the original employment agency for the salary paid to the person who completed the basic police course. The U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, was asked whether the second employing agency or the officer is required to reimburse the city the full amount of the salary he received while in training as required by state statute or only the amount of salary in excess of applicable minimum wage. Under FLSA, wages cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally, or “free and clear.” The wage requirements will not be met where the employee “kicks-back” directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee, if such payments bring the employee’s pay below the required minimum wage or overtime levels. Thus, in a letter dated May 31, 2005, DoL’s deputy administrator stated that any reimbursement paid by the officer that would result in payment of less than the amount required by applicable minimum wage or overtime requirements will violate the “free and clear” provisions of FLSA. However, while FLSA regulates employee wages, it does not control an arrangement under state law between two cities, meaning that FLSA does not affect any state law remedy the city may have against the second agency. (We’re kind of wondering why there is an issue when the statute specifically calls for reimbursement from the employee or the second agency, which receives the benefit of an already-trained law enforcement officer.) FLSA 2005-18 (May 31, 2005).


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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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