The Missouri Supreme Court heard remote oral arguments on Wednesday in a high-profile case involving the Cole County circuit court’s 2018 decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to remote oral arguments involving the corrections officer overtime pay case on April 22, 2020 in Jefferson City (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

It’s a case that’s been working its way through the court system for eight years, and it’s a case that could have major implications across the street from the Supreme Court in Jefferson City, at the Legislature. That’s because of difficult budget times.

The key argument both sides emphasized on Wednesday is whether pre- and post-shift activities for corrections officers is compensable. The state attorney general’s office, which represents the Missouri Department of Corrections, says no. St. Louis attorney Gary Burger, who represents the corrections officers, says it is.

Wednesday was only the second time in history that the Missouri Supreme Court has held remote oral arguments. Due to COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper and a few staffers were in the Jefferson City courtroom. Chief Justice Draper faced a screen where attorneys participated by videoconference. The other six judges participated remotely via teleconference.

There were a few minor glitches, when Supreme Court Judge Laura Denvir Stith’s microphone cut in-and-out a few times. That was quickly fixed. State Solicitor General D. John Sauer had some audio issues early, and Counselor Burger briefly had difficulty finding his timer. Attorneys are allowed set times, for arguments.

Corrections officer Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities.

While labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities, Cole County Circuit Judge Pat Joyce ruled in 2018 that pre- and post-shift activities are compensable.

State Solicitor General D. John Sauer argues that the circuit court erred and that the case “involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification.”

Mr. Sauer cites a 1951 decision by the U.S. Supreme Court, about pre- and post-shift activities. He is asking the high court to reverse the Cole County Circuit Court’s decision.

“Because they’re quintessential preliminary and postliminary activities, not the work of consequence that these employees (corrections officers) are employed to perform,” Sauer tells the Supreme Court.

Solicitor General Sauer also says the trial court excluded testimony from the DOC’s damages experts.

Mr. Hootselle and the corrections officers are represented by Mr. Burger. During his oral arguments, Counselor Burger emphasized the main points in his 135-page brief to the high court. He says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.”

Burger says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for those activities. He also says the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

“You can’t escort offenders within a prison without getting the equipment first,” Burger tells the Missouri Supreme Court. “Without getting the handcuffs, without getting the radios or the keys or the appropriate equipment.”

Chief Justice Draper requested additional memos from Solicitor General Sauer and Counselor Burger, as arguments concluded. There is no timetable on when the Missouri Supreme Court will issue its decision.

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