The state attorney general’s office urged the Missouri Supreme Court on Wednesday to overturn a $113 million award to corrections officers who claim they are due pay for the time it takes to begin and end each shift.
Chief Justice George Draper alone was present in the Jefferson City courtroom. With others participating via teleconference due to COVID-19 concerns, the judges heard Assistant Attorney General John Sauer argue that the time spent on pre- and post-shift activities is minimal.
It is only the second time arguments have been conducted by video conference. The first time was last week.
The tasks are not part of the workday, Sauer said, and similar claims have been rejected by the federal courts.
"The mere fact alone that you’ve got to keep your radio with you, be vigilant, and be prepared to respond to an emergency does not transform that no-compensable time into compensable time," Sauer told the court. "We think that is fairly consistent with the language of the federal statute at issue. You are not really engaging in your principle activity at that time."
Corrections officers’ attorney, Gary Burger, countered the appellate court already ruled the state has to "pay guards for guarding" and Sauer in his arguments affirmed that was the case.
"Mr. Sauer notes if there is an emergency they pay them to respond, well, that proves our case," Burger said.
The state is appealing an August 2018 Cole County jury award directing the state to pay corrections officers employed after 2007 the multi-million dollar compensation for time spent on required duties before and after they clocked in and out from their posts.
Officers argued that because they were required to respond if needed anytime after a prison, they should be paid as they completed tasks such as information briefings, security screenings, picking up or turning in radios and travel to assigned posts.
The state opposed the claims on the grounds the tasks were minimal. On appeal, the judgment was upheld in October by the Western District Court of Appeals. The high court on Wednesday heard an appeal of that decision.
Sauer argued the activities were not consequential under the federal Portal to Portal Act. Sauer also argued security screenings were a matter of course for anyone entering state correctional facilities and designed for the safety of offenders as well as staff.
"The DOC employs its corrections officers to employ security against inmates," Sauer said. "It doesn't employ them to employee security against themselves, which is essentially what is happening in the screening. They are making sure no officer is inadvertently introducing weapons, contraband, anything like that into the facility."
In response, Burger pointed out that while officers were going through pre- and post-shift activities they were not free to engage in personal activities.
"The officers are not on their phones or relaxing while they are engaged or actually going through the pre- and post-shift activities required by (MoDOC)," Burger said. "The (MoDOC) requires this activity, requires them to be on duty, requires them to be vigilant during these activities. While they are in there they are expected as guards.
Burger continued on those lines, telling the court if an officer was engaged in any of the duties in question and still supervising inmates they would need to be compensated as a matter of law. His argument prompted a question by Judge Laura Stith, who asked how the duties would be different from a police officer, or other professionals who were often on-call to respond, but not compensated for those hours.
"In many other professions when you are on call it's considered not compensable, unless you are actually called on," Stith said. "That’s not held to the fact you may have to respond and if you do you are payable. It’s not held to take it out of the compensable category. So why are prison guards different from police officers and others in the cases cited?"
Burger responded that in the case of the corrections officers, they are not able to use their time freely for their own purposes as those on call would be. He said to the contrary, they are actually going through activities related to their duties and had to remain vigilant at all times when inside the prisons.
He continued his arguments, challenging the state’s claim the tasks in question were minimal. Burger said security screenings and other activities were essential to the safety of correctional facilities and they should be compensated as part of the continuous work day.
"They are keeping criminals inside this prison and to assert otherwise by trying to minimize the security risks is not supported by the record," Burger said.
It was unclear when the court would rule in the case.