Moonlighting Police Officers Are Not Independent Contractors

By James Korte

Even the courts have noticed that U.S. workers often hold more than one job. Yesterday the Sixth Circuit Court of Appeals held that police officers who worked second jobs as security guards or directing traffic were not independent contractors, but actual employees of the security company.  The police officers typically worked full-time for local police departments and, when off-duty, worked for the private security company to supplement their income. The company argued the officers were independent contractors because they could decline assignments, were required to use personal “police-style” vehicles, had no direct supervision, and did not depend on the company for their income. They had a primary income from the police department.

US Department of Labor argued that the company (and the District Court) over-emphasized the fact that the officers’ second job was not their primary source of income. The Sixth Circuit agreed. In rejecting the lower court’s “income-based rule,” the Court highlighted that whether a worker has multiple sources of income says little about the worker’s employment status.

Lesson learned? Regardless of whether a worker works for one, two, or more companies at the same time, employers have to look realistically at the factors that determine employee status. One key fact is whether the worker’s tasks are integral to the company’s business.  Here a security company had the police officers acting a security guards.  That work was integral to the company’s business.

Acosta v. Off Duty Police Services Inc., Nos. 17-5995 and 17-6071 (6th Cir. Feb. 12, 2019).