Underpaid police recruit now unemployed
A former Ashland police recruit claims he was dismissed after notifying state authorities about a routine failure to pay trainees for all hours worked while training at the Oregon Public Safety Academy in Salem. Ashland Police Department Chief Tighe O’Meara denied the claims, saying his department did not know the identity of the complainant when he was dismissed for other reasons.
The trainee, Daniel Ensley, was dismissed soon after filing the complaint with the Bureau of Labor and Industries (BOLI). He claims he was fired in retaliation. A BOLI investigation concluded trainees oftern work more than 40 hours per week and are often only paid for 40 hours. In a letter sent to all agencies in the state that have recently sent trainees to the academy, BOLI said it “strongly recommends” all agencies pay traineees for all hours worked. “Failure to do so could expose these agencies to liability fo unpaid wages and civil penalties,” the letter, dated Nov. 28, says.
O’Meara said Ensley was dismissed for other reasons but he could not disclose the information as it is a personnel matter.
Ensley said in an interview he was fired because he was “a risk to the department.” He also said O’Meara and Deputy Chief Warren Hensman referred to a “firearm incident” during a discussion about his dismissal.
Ensley, a military veteran, said around Sept. 9 he returned to the police academy after a weekend away with both his duty pistol and his personal pistol. He said he took the bullets out of both and stored them in the arms room locker as he had been instructed to do in the military.
He said a complaint was filed against him by another student and this was the reason given for his termination.
He said he was certified in the military on how to discharge and properly stow away firearms, and that he was doing exactly what he was trained to do. He said the police academy policy doesn’t address his specific situation. It only states that trainees may not take firearms into their rooms.
“Nothing in the policy addresses it, nothing I did was unsafe, it just offended a student and that’s the reason Ashland gave for firing me,” Ensley said.
He also said that he called and spoke to Hensman, who, according to Ensley, told him that it was “nothing to worry about.” Ensley’s employment was terminated Oct. 12.
Ensley said he spent two years in the Oregon National Guard and six years active duty in the U.S. Army, specifically dealing with firearms.
“I was infantry, so my job was weapons,” Ensley said.
He said before the firearm incident happened at the academy, he spoke with his Ashland police sergeant about pay discrimination in the beginning of August. Ensley claimed the sergeant said that there is no expectation that trainees will be paid overtime for classes that exceed an eight-hour day and that he saw nothing ethically wrong about it. Ensley said he was told classes could also run shorter also run shorter than an eight-hour day, and homework in addition to the classes is expected.
“They’re teaching us to make ethical decisions, but then telling us to lie on our timesheets and only put 40 hours,” Ensley said. “It was talked about quite a bit around the academy by the other trainees, and essentially what it was, was nobody was going to be the person to stand up and say ‘hey, this is wrong’ because when you first join law enforcement you are on probation for about a year/year and a half and they can fire you for pretty much any reason.”
Ensley stressed that his speaking out wasn’t about the money, but instead the principle. He said he worked 50-60 hour workweeks with no overtime pay in the Army.
A notice of tort claim addressed to APD is dated Aug. 28 and the complainant was not identified in the notice. O’Meara said at the time there were three recruits at the police academy and he had no way of knowing who filed the complaint when Ensley was fired.
“It became clear to me that this was a state-wide issue, not an Ashland specific issue, so I didn’t really ponder that much on how the BOLI complaint got initiated,” O’Meara said.
O’Meara said that around mid-October “some issues started coming into focus to allow me to make the decision to release Daniel Ensley from employment.”
O’Meara said he did not know that Ensley was the officer who filed the complaint when he released him, but he did hear unconfirmed reports just a few days later that Ensley was the complainant.
“I am very comfortable to defend my decision to release Daniel Ensley from employment if I have to at some point,” O’Meara said. “The BOLI matter is a completely different matter. The investigation found that all the agencies that feed into the academy have all been in violation of record-keeping rules, overtime payment rules I’m acknowledging that I was doing it wrong, just like everyone else in the state was doing it wrong, and we will do it better.”
O’Meara said he’s at a disadvantage because he’s not allowed to disclose why Ensley was fired.
“Ensley has made it seem that he was fired because he made the BOLI complaint, but that’s not remotely true. He was let go for other reasons,” O’Meara said. “Daniel can say whatever he wants to say, but I’m constrained by the fact that personnel matters are generally confidential and unless I’m compelled to do it in a lawsuit or something, I can’t say why I let him go.”
Oregon Department of Public Safety Standards and Training Director Eriks Gabliks said nothing happened at the academy to call for Ensley’s termination of employment, as far as he’s aware.
O’Meara said although the recruits are under DPSST management during their training there, it is the home agency that pays them. It is also between the home agency and employee to track hours.
O’Meara said there’s not been a structured way of tracking recruits’ hours in the past and that it’s never been an issue before.
He also said there’s an assumption that the recruit works 40 hours a week with some overtime that can be expected, in the case of extra approved classes, as well as the occasional unanticipated overtime.
This was one of the issues raised by Ensley. In his complaint he said there are extra activities required of the recruits such as daily flag raising and homework assignments that aren’t compensated.
“Let’s say you and I are in the same class in the same agency,” Gabliks said. “We’re given an assignment to write a report on a DUI incident and we’re given two hours to do it. Well it only takes you one hour to do it, but it takes me four. So, the discussion is that I’m entitled to two hours of overtime because it took me two more hours to write the report.”
He asked, “Does the student who took an hour less not get paid for that hour?”
He said DPSST is creating a new policy that will require recruits to discuss these situations with their employers.
That way the employer is aware of the hours and the extra time spent on assignments, but also aware that the recruit can’t complete their work in a timely manner.
BOLI proceeded with an investigation and audit of DPSST, according to BOLI spokesperson, Christine Lewis.
The investigation found that recruits often had to work through lunch, their two 10-minute breaks a day, and outside of class time to complete their work.
Gabliks said DPSST has not received a report from BOLI yet but will fully comply once they do. Gabliks said in his 28 years of working with the agency there’s never been any complaint like this. So, it came as a surprise to the agency.
“We set the training schedule and we try to set it at a 40-hour week,” Gabliks said. “We try to factor into that schedule time for report writing and time for projects that they work on.”
“My investigation found violations of wage and hour laws that are likely to effect all police agencies in the state that send trainees to the DPSST,” according to the compliance letter written by compliance specialist Rachel Diamond-Cuneo.
The letter states that DPSST provides training to 208 agencies in the state. BOLI sent an advisory letter to 185 agencies found to have recently sent recruits.
Lewis, the BOLI spokesperson, said in a statement that “activities mandated by DPSST do tend to exceed 40 hours per week; 2) overwhelmingly, trainees are only paid for 40 hours per week. Therefore, we are advising 185 of the effected home agencies that trainees very likely are not being paid for all hours worked while at DPSST in violation of state and federal law.
“The compliance letter concludes that this time must be compensated according to Oregon Law. However, there is an exception for ‘employees engaged in law enforcement activities’ which includes training at the police academy. These employees must be paid all hours worked, but not overtime unless there is an agreement otherwise.”
The letter also stated agencies could face charges up to $1,000 if they don’t properly track employee hours.
Ensley said his father, grandfather and great-grandfather were all police officers and he knew that he wanted to be one from a young age.
“Growing up, my dad worked a lot, and there’s a lot of time that didn’t get logged onto his time sheet, even now. So, what started for him at the police academy 28 years ago as ‘just put 40 hours down,’ it turned into a career of working 10 plus extra hours a week and not being compensated for it,” Ensley said. “Police officers get taken advantage of. The academy sets that precedent — ‘for the good of the agency lie on your timecard,’ and people do it.”
Ensley said he’s applied to nine other agencies in the state and been denied by all since APD fired him. He said he’s holding out to hear back from one more agency before he takes a job overseas.
“I’ve pretty much accepted the fact that I won’t go into law enforcement,” Ensley said.
O’Meara said he had every right to terminate employment.
“Because he was a probationary employee, I was well within my rights as the manager of the police department to release him from employment,” O’Meara said.
O’Meara said APD will comply with whatever is necessary.
Currently, there are 29 APD officers on staff, with an authorization to have 32 (although one position is on hold).
He said APD maintains an eligibility list and there are other qualified candidates to replace Ensley.
O’Meara said he’s hoping to fulfill the additional staffing as authorized by the Ashalnd City Council last spring by mid-2019. O’Meara said the delay in increasing staffing is due to unrelated staffing changes and retirements.
He also said he thinks the additional overtime pay for trainees would have a minimal impact on the department’s budget.