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Salem Police wages subject of Federal lawsuit

Friday, July 27, 2012

It appears a lawsuit challenging the way Salem Police officers are paid will go to trial in December, in Federal Court in Little Rock. Former patrolman Doug Niendick claims he was fired in 2011 after he filed a complaint about the city's refusal to pay overtime. The lawsuit seeks back pay and damages from the City of Salem, and a court order forcing the city to pay patrol officers overtime, when they work more than 40 hours per week. Photo by Richard Irby [Order this photo]
A December trial date has been set in Federal Court to decide the complaint of a former Salem Police officer, who alleges that the department has violated federal wage and hour laws for years.

Doug Niendick, who is a Fulton County resident, was fired by Salem Police Chief Al Roork in April of 2011.

In May of 2011, Little Rock Attorney John Holleman filed a lawsuit in the Eastern District of U.S. District Court on Niendick's behalf.

The lawsuit claims that, as a patrolman, Niendick was required to work overtime hours and be on call, but was not paid for those hours because he was paid a "salary" for a 40 hour week.

According to the lawsuit, Niendick and other Salem police officers should have been compensated for all hours they worked because, under the Federal Fair Labor Standards Act (FLSA), only employees who have management duties or regularly supervise employees can be paid a salary, and work overtime without compensation.

The lawsuit states, "Defendant (City of Salem) placed Plaintiff (Niendick) and those similarly situated on-call for extended periods of time. During his on-call time, Plaintiff's actions were severly restricted and he was expected to respond immediately to any request of the Defendant. When called back to duty, Plaintiff was required to arrive on the scene within 10 minutes dressed in uniform. These back to duty calls were normally done all hours of the day and night and were all for the benefit of the City of Salem."

Niendick was fired in April of 2011, after the complaint was filed.

According to the lawsuit, Niendick is entitled to recover unpaid wages and overtime from the City of Salem, plus damages.

A "Second Claim for Relief" accuses the City of Salem of violating an "anti-retaliation" provision of the law, which makes it illegal to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint..." related to the FLSA.

According to the lawsuit, after Niendick filed a complaint with the U.S. Department of Labor, his schedule was changed, placing him on three overnight shifts per week, and he "was no longer allowed to go home during dinner time, and must stay within the City limits. No similar changes occurred with respect to other employees of the City of Salem's Police Department."

The lawsuit asks for judgements that the City of Salem violated federal law in regards to paying Niendick, and engaged in retaliation against him. It seeks monetary damages in the form of back-pay compensation, liquidated damages with interest, and fines to insure wage and hour violations are corrected.

"What the lawsuit says is, law enforcement officers have hard jobs, and are called out at all hours and are often on-call. That is understood, but they are entitled to be fairly paid and there is law to protect them," Attorney John Holleman told The News.

Holleman, who specializes in wage and hour cases, said Niendick's allegations are "very accurate," and are typical of what law enforcement officers in many departments go through.

July 13 was the date that both sides in the case were to file their discovery -- the evidence they intend to present at trial. A pre-trial hearing is scheduled for Nov. 12, in anticipation of the Dec. 11 trial in federal court in Little Rock.

According to Salem Mayor Gary Clayton, attorneys for the Arkansas Municipal League are representing the city in the lawsuit.

Clayton said the police department has followed the same wage policies for years without question.

"The federal wage and hour laws are so complicated, there is a chance of violating the law without knowing it, but we have not intentionally done anything wrong," Clayton said.

Clayton added, law enforcement requires officers to work long hours and be on-call, and "He (Niendick) knew that when he came on (the force)."

The lawsuit filed 14 months ago said, "He (Niendick) is filing this complaint on behalf of himself and all other City of Salem employees, whether past, present or future, who are classified as salaried employees...Other individuals will sign consent forms and join as plaintiffs on this claim in the future."

Holleman said, however, Niendick will be the only plaintiff at trial. While other officers were initially interested in joining the lawsuit, "this (Salem) is a small town, and they decided not to get involved."

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