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Police Can 'Double Dip' By Receiving Pensions and Salary

By Brett Snider, Esq. on June 07, 2013 | Last updated on March 21, 2019

Across the nation, from California to Texas to D.C., voters had complained that it was unfair to watch public employees "double dip" by collecting their pension in addition to a salary.

But a change came, with many states and the District of Columbia passing laws to prevent "second career" retirees like former police officers from being rehired while still collecting pension money, reports Washington City Paper.

The D.C. Circuit is now saying that these laws, which may reduce a rehired cop's salary to zero to offset his pension payments, must allow public employees to receive a salary.

Cops Sue For No Salary

In 2012, D.C. began enforcing D.C. Code Section 5-723(e) which entitles the District to cut salaries based on pension compensation, in an attempt to reduce the dreaded “double dip.”

For three officers who had retired and then come back to work for the D.C. police force, this meant that their current salaries were reduced to zero based on their pension annuity payments.

The D.C. Circuit took up their appeal after being denied at the appellate level, opining that the cops could collect at least a minimum wage under the Fair Labor Standards Act.

Does the FLSA Apply?

The D.C. Circuit found in Cannon et al. v. D.C. that by paying officers nothing for their work, D.C. had run afoul of the Fair Labor Standards Act (FLSA). The FLSA requires, among other things, that employees be minimally compensated for their work, which by slashing their paychecks to zero to balance out the pension annuities, D.C. wasn’t compensating their employees.

The District argued unsuccessfully that the employees were covered under the bona fide executive exemption from minimum pay under 29 USC 213(a)(1), but the Court reminded them that Department of Labor regulations require even these exempt employees to be compensated by a minimum of $455 dollars per week.

Salary Cut Allowed in Sister Circuits

While D.C.’s Circuit Court believes that officers must be paid at least $455 per week (about $11.38/hour) after the dust clears from deducting pension income, other U.S. Circuit Courts have upheld laws aimed at preventing a “double dip.”

In Connolly v. McCall, The Second Circuit upheld a New York law which prevented police officers from collecting their pension from a prior service while also accruing salary and benefits from a current public position. Connolly may be distinguished from Cannon in that NY’s policy allowed officers to collect prior pension and current salary, but not also accrue pension funds from the current position.

Bottom Line

Regardless of the jurisdiction, the Cannon Court’s position on FLSA is solid, any double dip law must allow officers and other public employees to receive a minimum salary.

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