United States: Moonlighting Police Officers Are Employees, Not Independent Contractors, Says Sixth Circuit

In yet another legal development calling into question a traditional independent contractor relationship in the U.S., the Court of Appeals for the Sixth Circuit determined that off-duty police officers were employees of a private security company for purposes of the Fair Labor Standards Act. In Acosta v. Off Duty Police Services, Inc. (6th Cir. Feb. 12, 2019), the circuit court found that the officers satisfied five of the six factors in the "economic reality" test used to determine employee status.

The defendant, Off Duty Police Services (ODPS), contracts with businesses in and around Louisville, Kentucky, to offer private security and traffic control services. ODPS provides some of these services by engaging sworn, off-duty police officers who—when they're not working for ODPS—are employed full time or otherwise by a law enforcement agency.  ODPS classified the workers as independent contractors, and did not pay them overtime wages or keep the pay and hours records required by FLSA regulations.  The U.S. Department of Labor sued ODPS.

Following a bench trial, the district court concluded that the off-duty officers were independent contractors vis-a-vis ODPS because they "simply were not economically dependent on ODPS and instead used ODPS to supplement their incomes."  The district court also held that other of ODPS's security workers—those who were not off-duty police officers—were employees of ODPS.  Both parties appealed.

The Sixth Circuit applied a six-factor "economic reality" test to determine whether ODPS's workers qualified as employees under the FLSA, noting that the ultimate question is whether a worker is economically dependent on an alleged employer.  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.

Integral Nature of Work

At the outset, the Court of Appeals noted that ODPS "built its business around the security and traffic control services provided by its workers," and therefore "[t]here is no doubt that the services offered by ODPS's workers are integral to the company."  The court rejected ODPS's argument that it is merely "an agent between its customers and independent ... officers."

Degree of Skill

On the degree of skill required, the court credited the officers' trial testimony that the tasks they performed required little skill, initiative, or training.  The court was less persuaded by ODPS's argument regarding the high degree of skill and training required to become a licensed police officer, noting that this factor does not concern the skills possessed by the workers, but rather the degree of skill required for the rendering of the services.  That ODPS engaged non-sworn officers further supported the conclusion that the work did not require the high degree of skill that sworn police work can require.  The court determined that the facts favor employee status.

Workers' Investment

The court discussed the limited investment by the workers, noting that ODPS periodically supplied them with basic equipment necessary for the job, including signage, reflective jackets, and badge-shaped patches with the ODPS logo.  While the workers had to purchase or lease a police uniform and supply their own vehicle, the cost of those items "pale[d] in comparison to the amount ODPS spent running its business per year."  The court determined that the facts supported employee status.

Permanency of Relationship

To assess the permanency of the relationship, the court examined both its length and its regularity, noting that independent contractors "often have fixed employment periods and transfer from place to place as particular work is offered to them, whereas employees usually work for only one employer and such relationship is continuous and indefinite in duration."  By contrast, the court observed, that a party works for more than one company is only "one factor of many to consider in determining whether a worker is economically dependent" upon one of those companies:

[W]hether a worker has more than one source of income says little about that worker's employment status.  Many workers in the modern economy, including employees and independent contractors alike, must routinely seek out more than one source of income to make ends meet.  An income-based rule would deny that economic reality.

The court noted that while ODPS's workers accepted jobs intermittently, they often worked for ODPS for years—or, in some cases, decades—at a time, a fact supporting employee status.

Opportunity for Profit or Loss

The court rejected ODPS's argument that because workers could accept or reject work, they effectively controlled their opportunities for profit or loss by maintaining ultimate control over their workload.  The more relevant inquiry, in the court's view, is whether workers can increase profits through "managerial skill" (e.g., by improving efficiency to complete more jobs per day):

It requires little skill to determine whether one is available at a certain day and time or whether inclement weather or some other factor might make a job less desirable.  And while the ability to control one's schedule may, in some circumstances, allow more efficient workers to maximize profits, ODPS's workers had no such opportunity.  ODPS's assignments required workers to be present for set periods of time, regardless  of  what  skills  they  exercised,  so  workers  could  not  complete  jobs  more  or less efficiently than their counterparts.

The court also noted that the workers received an hourly wage from set unilaterally by ODPS, regardless of the skill they exercised, and determined that the facts supported employee status.

Degree of Control

As to the degree of control exercised by ODPS, the court was less concerned with the control the company exercised than the control it retained the right to exercise.  The court noted that the workers were subject to ODPS policies and procedures, non-compliance with which could result in discipline (a "time out," or period of no work) or complete termination of the relationship.  The court also noted that ODPS set the rate at which the workers were paid; told the workers where to go for the job, when to arrive, and whom they should contact when they got there; periodically checked in on the workers at the work site; and imposed dress and grooming standards.  ODPS argued that it did not supervise the day-to-day performance of the workers, but the court countered that "such close supervision is not necessary to establish control." The court found the facts not to break cleanly in favor of employee or independent contractor status.

Balancing the Factors

Because five of the six economic reality factors supported finding an employment relationship between ODPS and the workers, the Court of Appeals concluded that the workers were employees entitled to overtime wages, especially when viewing the factors in light of the FLSA's "strikingly broad" definition of "employee" and the statute's "remedial and humanitarian purpose."

Final Thoughts

The legal justifications for independent contractor relationships are being scrutinized in courts and governmental agencies throughout the U.S.  As a result, businesses that have relied historically on services provided by independent professionals, contractors, and consultants are increasingly under attack.  The Sixth Circuit put it bluntly:  "The way we work in America is changing.  The relationships between companies and their workers are more fluid and varied than in decades past."

Businesses that are not engaging in rigorous self-examination of their relationships with independent contractors are missing a potential opportunity to reduce their legal—and therefore financial—risk.

Follow Proskauer's wage and hour blog to stay current on the latest developments.

Moonlighting Police Officers Are Employees, Not Independent Contractors, Says Sixth Circuit

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions