Kentucky Employment Law Blog

Sixth Circuit insulates law enforcement agencies from public scrutiny

The Sixth Circuit's ruling recently in Kirkland v. City of Maryville, where it affirmed a summary judgment granted the city, will serve powerfully to insulate law enforcement agencies from public scrutiny. This undermines the long-established notion that speech leading to scrutiny of public agencies and those running them is of the highest public concern and, therefore, of compelling First Amendment protection. See Solomon v. Royal Oak Twp., 842 F.2d 862, 865 (6th Cir. 1988). 

The plaintiff in Kirkland was employed as a patrol officer by the city police department. She posted on her personal Facebook page criticisms of the county sheriff and his department, where she'd been employed previously. Her supervisors at the city asked her to stop the posts, because they "became concerned that her posts would undermine" the city's relationship with the sheriff's office. Later, Kirkland made two more posts on Facebook critical of the sheriff who was running for re-election. A "concerned citizen" complained to the city about Kirkland's posts critical of the incumbent sheriff. Kirkland was reprimanded for the critical Facebook posts; she was later suspended for three days. Six months later, Kirkland shared on Facebook "an unflattering article" about the sheriff and possible corruption in his department: "Sheriff's connections to private contractor are cozy, but lawyer says not illegal." Kirkland added the comment: "Just like I'm sure it's not illegal to ban a female officer from training for not voting for you either." Kirkland was terminated "because her post violated Department orders requiring officers to maintain good relations with the public and other law enforcement agencies." 

Kirkland claimed that her firing violated her First Amendment free speech rights to comment on the sheriff's abilities, the operations of his office and its possible corruption. The district court granted summary judgment to the city, which the Sixth Circuit affirmed in an opinion written by Judge Chad Readler and joined by Judges Amul Thapar and Ralph Guy. 

The Sixth Circuit agreed that Kirkland's speech, "which suggested sex discrimination and political retribution by an elected official," was protected by the First Amendment. The court did not acknowledge that Kirkland's speech also raised the issue of the sheriff's integrity. In any event, the summary judgment was affirmed because the court ruled that the city's interests in maintaining a good working relationship with the sheriff's department outweighed Kirkland's First Amendment rights.

The court also added that Kirkland's "history" with the sheriff's department, a fact that would seem to make her exceptionally well-situated to assess the sheriff and the operation of his department, weakened her First Amendment rights. Part of the plaintiff's "history" with the sheriff's department was being fired by the sheriff, something the Sixth Circuit accepts as deserved, the point for the court being that Kirkland was a trouble-maker of long-standing. But this is contradicted and powerfully by the fact that the city police department hired Kirkland after she was fired by the sheriff, a fact that would indicate that little regard was given the sheriff's firing of Kirkland. 

The Sixth Circuit's decision will serve to insulate law enforcement agencies from public criticism and scrutiny. First, law enforcement officers are best situated to become knowledgeable regarding the deficiencies in the personnel, leadership and/or operations of other law enforcement agencies that they cross paths with. The Sixth Circuit's ruling will deter the exposure of corruption and other malfeasance in a law enforcement agency by those most qualified and able to assess it. Second, every public agency everywhere can make the assertion that maintaining good relationships with law enforcement agencies overrides the First Amendment rights of its employees, no matter if they work in parks and recreation, sanitation or whatever. The Sixth Circuit has alerted public employers of a fail-safe defense that will quash the First Amendment rights of public employees and insulate law enforcement agencies from public scrutiny. 

And federal courts are where plaintiffs go to die: Stunning drop in federal plaintiffs’ win rate is complete mystery – new study.

Robert L. Abell
www.RobertAbellLaw.com 

 

Grooms and Hotwalkers Win Overtime Case

Grooms and hotwalkers employed by thoroughbred horse trainer Steve Asmussen were awarded $200,000 plus in overtime pay in a trial court judgment affirmed by the Sixth Circuit in Walsh v. KDE Equine. The appeals court sent the case back for consideration of liquidated damages that would double the amount.

The court described the hours worked each week by these employees as follows:

• hotwalkers work 7 days a week from 5 a.m. to 10:30 a.m.
• some hotwalkers work some in the afternoon, usually 3:00 pm to 4:30 pm, every other day
• hotwalkers typically worked "approximately 44.25 hours per week"
• grooms work 7 days a week usually from 5:00 a.m. to 11:00 a.m. and then from "approximately" 3:00 p.m. to 4:30 p.m.
• grooms work and can earn extra pay one days when one of the horses they see to is racing
• grooms typically work 48.5 to 52.5 hours per week

Both the hotwalkers and the grooms were paid a salary and received "extra compensation for additional tasks outside of their normal duties." But most of the hotwalkers and grooms did "not submit timesheets for the additional hours worked, while others submitted inaccurate time sheets." These additional duties included such things as $25 for unloading hay, $25 for transporting horses to the racetrack and $100 for doing laundry. 

The Sixth Circuit rejected three arguments from trainer Asmussen that overtime pay requirements had been complied with. First was the claim that the "payment scheme provided a premium for a fixed number of overtime hours[.]" This can comply but only when "an employee works a fixed number of overtime and non-overtime hours." Since the weekly workhours of the grooms and hotwalkers varied, this payment scheme did not comply. Second, the employer argued that its scheme met the "fluctuating work weeks" method which can apply "when employees work varying hours from week to week but are paid fixed base salaries." But this method requires accurate records regarding the hours worked by the employees, and trainer Asmussen's outfit did not do this. Trainer Asmussen last contended that overtime requirements were met because hotwalkers and grooms were paid "lump-sums for additional tasks outside of their normal duties." This didn't apply because the lump-sum payments were too regular. 

The overtime owed totaled $211,541.76. The Sixth Circuit sent the case back to the trial court to determine if that amount should be double for trainer Asmussen's willful violation of the overtime law, the Fair Labor Standards Act (FLSA). According to Equibase, horses trained by Steve Asmussen have won 379 races and purse money exceeding $28 million in 2022. 

Robert L. Abell
www.RobertAbellLaw.com