Does LDF Cover Secondary Employment? It Depends on Who Is Paying Your Wages

DAVID E. MASTAGNI
Partner Attorney
Mastagni Holstedt, APC

This article is intended to address an important question about PORAC Legal Defense Fund (LDF) coverage that many officers who perform off-duty law enforcement services ask. Before you accept off-duty employment performing law enforcement services for a secondary employer, you need to know if you will be covered in the event you are involved in a critical incident, become the subject of a citizen complaint of misconduct or are sued. If you are enrolled in PORAC LDF, coverage depends on whether the off-duty work is through a secondary employer or contracted through your primary agency.

The PORAC LDF legal services plan benefits are outlined in the plan document on the PORAC LDF website. While the plan covers many issues that may arise for participants during their law enforcement career, there are exclusions when it comes to secondary employment. Thus, it is important for participants to understand when the plan does and does not cover issues arising from that secondary employment.

The plan covers issues that arise only within a participant’s scope of employment. The plan defines the scope of employment as “actions or omissions by a [participant] which are typical of or associated with the duties which a [participant] is hired, trained, and paid to perform.” The scope of a participant’s employment is determined by the duties for which their respective law enforcement department pays them.

The plan does not cover issues that arise outside of a participant’s scope of employment. An issue is considered to be outside of the scope of employment if it arises while working at any secondary employment for which they are paid by anyone other than their primary employer/department. This is true even if their second job involves duties similar to their duties at their primary employment.

For example, a participant employed as a peace officer for a law enforcement department may moonlight part time for the Cal Expo and State Fair Police Department, a department composed, in significant part, of officers who work full time as peace officers at surrounding agencies. While at that job, they exercise their peace officer powers and may be required to use force and/or be subject to a citizen’s complaint. Because they are being employed and compensated by a different agency than their primary employment, through which their association has secured PORAC LDF membership, any issue arising from their actions as a Cal Expo and State Fair police officer would not be covered under the plan. Similarly, the plan does not cover matters arising from non-law-enforcement off-duty employment.

The participant must separately obtain coverage through their secondary employer if they want coverage for any law enforcement actions taken during work contracted with that secondary employer. If the employment includes law enforcement duties that the participant wishes to be covered by LDF, the participant must join LDF through that secondary employment. This would be separate from the coverage for their primary employment under the plan.

However, there are also times when the plan will cover issues arising under secondary employment without having to obtain separate coverage. Often, agencies and the law enforcement associations will negotiate off-duty overtime opportunities through a contract with the primary law enforcement agency to provide security and law enforcement services at sporting events, concerts and night clubs. Typically, under these agreements, the participant works the off-duty assignment in their agency uniform, utilizing agency equipment, with agency oversight. PORAC LDF treats these off-duty work assignments as within the scope of employment if the primary department is the one paying the participant for the shifts worked at the contract or secondary jobs.

For example, if a participant was contracted to work at a county fair through their employing agency and paid by their employing agency, the participant would be fully covered by PORAC LDF regarding any issues arising from law enforcement actions taken during the event, even though the employing agency was charging the county fair for the officer’s service.

Similarly, an off-duty job or activity for which the participant is not paid, such as working security at their local church’s events, or helping to provide security at a family member’s wedding, is still considered under the plan to be “secondary employment,” which is non-scope as not arising within the duties for which they are hired, trained and paid to perform at their primary employment. Thus, if the participant needs to use force, or is subject to a citizen’s complaint for that secondary position, regardless of whether they are paid for that work by the secondary entity, LDF will not be able to provide coverage through their LDF membership with the primary employer.

In a nutshell, when determining whether LDF will cover an issue arising under law enforcement duties taken at any secondary employment, the most important question is whether it was within or outside of the scope of employment for their primary job. A second job is within the scope of employment if the participant is still being paid by their respective department. If they are being paid by anyone else, or not paid at all, it is outside of the scope of employment and will not be covered unless the participant separately joins LDF through that secondary employment. Usually, establishing secondary employment opportunities through a contract between the vendor and your employing agency is the safest course of action.

If you have questions regarding whether your PORAC LDF coverage extends to a secondary work assignment, you should contact your LDF panel attorney or the Legal Defense Fund directly.

About the Author
David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC. His labor and employment law practice includes administrative hearings, trial court and class actions, and appellate litigation in California and the federal courts of the Ninth Circuit. David is an experienced panel attorney for the Peace Officers Research Association of California (PORAC) Legal Defense Fund and frequently lectures on police reforms, constitutional rights, collective bargaining and police discipline. He provided legal analysis and advice on behalf of law enforcement stakeholders during legislative negotiations and hearings over AB 392, SB 230 and SB 1421.