When Crime Spoils Lunch, Someone Pays

Like most of the 32 patrol officers on the Madera police force, Sgt. John Kunkel said, he had left too many cheeseburgers half-eaten.

At any time, Kunkel said, lunch could be interrupted by a call on the radio, a nearby emergency or even a citizen’s complaint about an undeserved traffic ticket in the Central California city.

Simply being in uniform, he said, made it almost impossible to enjoy a peaceful meal.

“We weren’t able to relax like a normal person,� said Kunkel, president of the Madera Police Officers Assn.

When the officers asked to be paid for their half-hour meal period, however, the city refused.

The officers sued Madera. After they lost the first two legal rounds, the California Supreme Court ruled in July, 1984, that with no set, uninterrupted meal period, the officers were sufficiently restricted to merit being paid.

The Madera officers were awarded nearly $425,000 in back wages for a four-year period, the statute of limitations on breach of contract.

Since then, the small San Joaquin Valley police force has become the unlikely leader in a statewide movement to compensate officers for meal breaks.

Although the majority of officers in California are paid for their meal periods, attorneys say, the Madera case has caused as many as a third of the state’s police departments to confront the issue.

In the Southland alone, at least eight police officer associations--including those from the Los Angeles Unified School District, Pasadena, San Diego and the California Highway Patrol--have filed grievances or lawsuits within the last year.

The Madera ruling also has established a national precedent, prompting many police officers’ groups throughout the country to file similar suits, said Ira Lechner, legal counsel for 125-member National Assn. of Police Organizations in Washington.

“You have to give credit to California for being a leader,� Lechner said. “I’m confident that within the next three or four years the issue will be resolved because of Madera and other cases like it.�

Following the Madera precedent, CHP officers filed suit in Sacramento Superior Court this summer seeking four years’ back wages, an amount officers estimate could total $40 million.

Although they lost in Superior Court, the CHP officers have appealed the case to the state Court of Appeal.

“Madera lost their first round too,� said Jon Hamm, executive assistant of the California Assn. of Highway Patrolmen. “We’ll keep appealing until we win.�

Police officers in San Diego filed a grievance with the city in August, asking for nearly $9 million in back wages.

“We can eat, but with that crazy (police) radio on, we can’t relax,� said Ron Newman, treasurer of the San Diego Police Officers Assn.

Pasadena police officers filed a $500,000 lawsuit this month in Los Angeles Superior Court to pay for the lost hours.

“We’re not free like other employees to take off the shirt and enjoy an undisturbed meal,� said Dennis Diaz, president of the Pasadena Police Officers Assn.

Police officers with the Los Angeles Unified School District have sued for $2 million in back pay.

“I don’t even bother to eat,� said Bob Horvatich, a police officer at San Fernando High School. “It’s not worth it. Every time you hear the crackle of the radio, there goes your stomach.�

Other associations that have filed either grievances or lawsuits include the police in Newport Beach and Vernon, sheriff’s deputies in San Francisco County and police officers for the Southern California Rapid Transit District.

“Either you’re looking at the smaller, more rural cities that are prone to ignore reality anyway,� said Christopher Burdick, the San Francisco attorney who won the Madera case, “or it’s some of the larger, more conservative cities where employees tend to be treated like public serfs instead of public servants.�

“If you know what you’re doing,� he added, “(litigation is) a regular little cottage industry.�

Although some officer associations have sought extra pay since the Madera ruling, most departments in major cities say they resolved the problem years ago through negotiations.

For example, officers on the Los Angeles, San Francisco, Fresno, Bakersfield, Santa Barbara and Long Beach police departments say they either have “duty free� mealtimes, shortened work hours or a policy of four 10-hour shifts a week, which has the practical effect of compensating them for their breaks.

In fact, even though it has precipitated a rash of litigation, many attorneys think that the Madera case represents the last word on the issue. Although some cities had already begun to compensate officers for their meal periods, they say, Madera has awakened the remaining officers not already paid for that time.

“All the people who never got their problems resolved before are using Madera as a renewed impetus,� said Stephen Silver, an attorney representing more than 100 public safety organizations in the state. “Any city that hasn’t changed its practices by now is asking for trouble.�

Some cities and agencies faced with such suits have argued, however, that the Madera case should not apply to their unique circumstances or that their officers have a better opportunity for uninterrupted meals.

The Los Angeles Unified School District, for example, has some of its officers take their 30-minute lunch break during the time that students and teachers eat lunch, said Martin Tucker, assistant chief of the district’s police department.

Officers are paid for interrupted meals, Tucker said, but “to have them eat whenever they want doesn’t really serve the district’s need at a given site.�

Similarly, the San Diego Police Department pays its officers overtime on what Jack McGrory, assistant to the city manager, called the rare occasions that official business interrupts their 30-minute meal period.

“As long as the interruptions are not so frequent that (police officers) continually spend their lunch break doing city business, we’re not required as an employer to pay for it,� McGrory said.

Police officers and city officials agree that the effect of the Madera case is complicated by a recent U.S. Supreme Court ruling that makes minimum wage and overtime regulations in the U.S. Fair Labor Standards Act applicable to state and municipal employees.

Although the February court ruling was unrelated to the Madera case and did not address mealtime pay directly, the U.S. Department of Labor declared recently that it could have the practical effect of compensating local police officers for the interrupted time.

As a result, many attorneys are looking to the Supreme Court ruling in situations in which the Madera case may not be applicable.

“What makes the (labor standards act) crucial is that you can give away your ‘Madera rights’ through a labor contract,� said Michael Hannon, an attorney representing the California Organization of Police and Sheriffs Assns. “But you can’t give away your ‘FLSA rights’ through a contract. Those federal standards serve as a floor that protects everybody.�

Although federal labor standards may act as a safety net, a national organization of city attorneys has argued that it is unconstitutional to apply those standards to local governments. In a suit filed against the U.S. Department of Labor last month, more than 112 cities nationwide charged that the federal government does not have the authority to regulate state and local labor activities.

The City of Los Angeles, in a suit against the U.S. Department of Labor, is seeking an injunction against the immediate enforcement of the act. The city claims that it is entitled to a gradual phase-in of the federal regulations.

More than 15 years ago, Los Angeles was responsible for initiating the mealtime debate. In the first case of its kind, the Los Angeles Fire and Police Protective League charged that its members should be paid about $3 million in back pay.

The officers won the first round of the fight. In 1972, however, the state Court of Appeal ruled that the uniformed officers could not be paid for interrupted meals.

Several years later, the city agreed to provide uniformed officers with a “duty free� meal period, to be compensated for only if it is interrupted by an emergency call.