The issue of Law Enforcement Officer (LEO) Retirement is on the minds of many federal employees as they make decisions regarding the planning and timing of their retirement. Federal employees pay into their retirement through deductions from their paychecks. LEOs are entitled to a greater amount of money in their pensions and pay additional paycheck deductions to earn that right.
A most disturbing and not so uncommon event occurs when the federal employee nearing retirement learns for the first time that although he or she has paid the additional premium to earn the LEO status, the government now challenges the employee’s LEO retirement status, claiming that the employee should never have been classified as LEO. The government then contends that it made an error in accepting the higher paycheck deductions and is prepared to return the increase in premiums back to the employee with interest; however, the employee loses his LEO pension.
To be eligible for LEO retirement, Federal law requires that the employees duties primarily involve the investigation, apprehension, or detention of individuals suspected of offenses against criminal laws of US. This is distinguishable from positions involving maintaining law and order, protecting life and property and guarding against or inspecting for violations of law do not qualify as LEO retirement credit.
The Federal Circuit in a 2001 case, Watson v. Department of the Navy, set out various parameters to determine whether an employee is considered LEO. It looked to the very purpose for the creation of the subject position. The court also looked to whether the criminal investigation, apprehension and detention duties occupy a substantial portion of the individual’s working time over a typical work cycle and whether such duties are assigned on a regular and recurring basis.
The Watson Court then created a five-part test to determine LEO status based upon whether the position involved: (1) guarding property or pursuing detained criminals; (2)a youthful entry age; (3) a mandatory retirement age; (4) physically demanding work; and (5) the employee being exposed to hazard or danger. The intent of the Watson decision was clearly to more narrowly define the requirements for LEO consideration. The court ruled that the Appellant, James A. Watson, had duties that involved investigation, apprehension or detention of criminals or suspected criminals, but that they were not his primary duties. As such, he did not prevail.
Federal employees who are planning retirement or who simply need to verify whether they are LEO eligible or not, should gather their position descriptions and have them reviewed by an attorney practicing in this area. The employee should also be able to write a summary for his or her lawyer indicating his or her daily duties and a list of witnesses who can attest to the employee’s primary and secondary duties. There is nothing worse than preparing for retirement, only to later to discover that your pension is considerably smaller than planned.
