CANINE LEGAL UPDATE AND OPINIONS
FOR SUPERVISORS AND ADMINISTRATORS

HANDLER COMPENSATION SUMMARY

There are two issues regarding canine handler compensation. Both are addressed under the Fair Labor Standards Act (FLSA) established in the case: Garcia v San Antonio Metropolitan Transit Authority.

1. At-home Care:

This issue arises if the agency does not kennel the dog at the police station or some other fixed work place site. The norm is for the handler to kennel and care for the dog at the handler’s home. The Department of Labor (DOL) has consistently held that time spent in the at-home care of police dogs is compensable time and that, to the extent that these hours exceed 40 in one week, time and one-half compensation must be paid.

The listed cases usually show summary judgement on compensability for specific activities. Please note that these activities are very inclusive. After the judgement, the agency either settles or there is an un-reported verdict.

Only one case, Levering v District of Columbia, specifically states the “appropriate time” for such activity compensation. This case states “30 minutes per day”, seven days per week = a minimum of 3.5 hours per week.

Another case, Reich v New York City Transit Authority, mentions an out-of-court settlement of one hour per day of workday home care and one and one-half hours per day of non-workday home care.

Another case, Rudolph v Metropolitan Airports Commission, upheld an agreement between the handler(s) and the agency of 30 minutes of dog care on their on-duty days and 30 minutes on their off-duty days.

Another case, Jerzak v City of South Bend, upheld an agreement between the handler(s) and the agency. The officer worked seven hours per day, five days per week, and he was provided an additional (one) paid hour per day, five days per week, to care for the police dog.

Another case, Baker v Stone County, Missouri, ruled that 5-1/2 hours each week was appropriate compensable time spent for caring for and training a drug dog. (This time is approximately 45 minutes per day, seven days per week.)

Even though the court accepted that one hour a day as overtime on work days and one-and-a-half hour per day on non-work days, was appropriate compensable time for at-home canine care, another case, Brock v City of Cincinnati, upheld an agreement between the handlers and the agency of 17 minutes per day, seven days a week for at-home canine care. The court concluded that this agreement was reasonable coupled with other non-monetary support from the agency.

Another case, Howard v City of Springfield, Illinois, ruled that one hour off per work day and compensation for one hour at time and one-half on non-work days, was appropriate compensable time for at-home care.

Another case, Mayhew v Wells, ruled that canine training time was compensable. The handler was a salaried employee and thus his overtime was to be compensated at one-half of his regular pay rate.This case also stated that “at-home care” is compensable, even though the handler owned the dog, the agency used it for law enforcement purposes.

Another case, White v San Mateo County ruled that a salaried employee is not entitled to overtime pay under FLSA.

The Department of Labor (DOL) issued a “Letter Ruling” dated August 11, 1993. This ruling stated:

1) Bathing, brushing, exercising, feeding, grooming, cleaning of the dog’s kennel or transport vehicle, administering drugs or medicine for illness and/or transporting the dog to and from an animal hospital or veterinarian and training the dog at home are all compensable activities.
2) All these activities apply to workdays as well as days off duty or during vacation periods.
3) Dog care activities do not have to be compensated at the same rate of pay as paid for law enforcement activities. If a different pay rate is used, the pay for overtime hours engaged in such work is at time and one-half the special rate.
4) “At-home care” is compensable, even though the handler owned the dog, the agency used it for law enforcement purposes.

The following cases all uphold at-home care compensation:

• Truslow v Spotsylvania County Sheriff
• Nichols v City of Chicago
• Levering v District of Columbia
• Reich v New York City Transit Authority
• Andrews v Dubois
• Treece v City of Little Rock, Arkansas
• Rudolph v Metropolitan Airports Commission
• Mayhew v Wells
• Albanese v Bergen County, New Jersey
• Karr v City of Beaumont, Texas
• Holzapfel v Town of Newburgh, New York
• Hellmers v Town of Vestal, New York
• Baker v Stone County, Missouri
• Brock v City of Cincinnati
• Howard v City of Springfield, Illinois
• Leever v Carson City, Nevada

There are no cases that deny at-home care compensation.

2) Travel time:

This issue arises if the handler transports the dog to and from his home to work. Travel time is generally not compensable under FLSA.

Two cases uphold travel time in an assigned police car as compensable:
• Graham v City of Chicago
• Karr v City of Beaumont, Texas

Eight cases deny travel time in an assigned police car:
• Truslow v Spotslyvania County Sheriff
• Levering v District of Columbia
• Bolick v Brevard County Sheriff’s Department
• Bobo v United States
• Imada v City of Hercules
• Jerzak v City of South Bend
• Aiken v City of Memphis, Tennessee
• Hellmers v Town of Vestal, New York

One case denies travel time in a private vehicle of a transit authority dog:
• Reich v New York City Transit Authority

One case denies travel time of a correctional officer dog, either in an agency vehicle or private vehicle:
• Andrews v Dubois

Since the Second, Fourth, Sixth, Ninth, and Federal Court of Appeals, along with five (5) U.S. District Courts, all state that travel time is not compensable, travel time is generally not compensable.

It should be noted that in both issues, at-home care and travel time, the courts have repeatedly stated that any time that is “de minimis” is not compensable. “De minimis” is the tiny amount of aggregate time so expended and/or the irregularity of the occurrence of such time. Such time would be administratively difficult in establishing a reliable system for recording such time. Recurring activities may not be “de minimis.”

Solutions for canine handler compensation:

1) At-home care:

Since all Federal Courts and the Department of Labor agree that at-home care is compensable, either pay it or work it into the handlers’ hours. The only “appropriate time” stated in a case is 30 minutes per day, seven days per week. Other cases range from 30 minutes to one hour per day of workday home care and up to one and one-half hours per day on non-workday home care.

2) Travel time:

The Federal Courts vary on their opinion. The vast majority of them deny travel time (ten courts say no to travel time, two endorse travel time). Since ten Federal Courts deny travel time, including five U.S. Court of Appeals, travel time is generally not compensable.

3) Methods of compensation:

A) Factor all compensable time into the handler’s normal workday. The handler’s normal workday would consist of “__” hours of normal duties and “__” hours of FLSA compensable time = total workday hours.

B) Pay the handler all FLSA compensable time. The rate would be at one and one-half hourly rate for any hours, which exceed forty per week.

C) Do a combination of both methods of compensation as listed above. Factor the compensable time into the workday, but if call load prohibits letting the handler leave early, pay the handler for that day only, usually at one hour overtime.

D) Central Kenneling:
This eliminates both issues of at-home care and travel time. A few agencies have tried it. Most of them have abandoned it. Reasons stated were either too costly, or control of the dog suffered, probably due to the “bond” between the handler and the dog.

E) Compromise and negotiation:
This issue must be negotiated with compromise on both the agency and handler’s position/view point. Agencies and handlers should meet and confer on this issue. To prevent the demise of canine as we know it, both parties should arrive at a decision that both can live with.

Negotiate a lower rate to pay some dog care activities. This can apply to work, which is different from police work, such as feeding, etc. This would not apply to training.

Officers cannot legally waive FLSA provisions. This would include waiving the FLSA two year statue of limitations. See Adams v United States.

F) See Bolick v Brevard County Sheriff’s Department for section 7(K) exemption.

G) See Theisen v City of Maple Grove for application of “monthly rates” as applied to calculation of overtime.

H) In order for a labor agreement between the handler and agency to be reasonable, the agreement has to take into account some approximation of hours actually worked, or reasonably required to be worked, by the employee.

I) Damages: Any employer who violates the provisions of FLSA, shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. (See Adams v United States.)

J) Exceptions to FLSA Requirements for executives, administrative or professional employees: See White v San Mateo County and Adams v United States.

K) Department of Labor Assistance:
Technical assistance for FLSA questions: (202) 693-0067.

L) The Reality of Police K-9:
A handler’s 40 hour work week:
< 4> hours of K-9 maintenance training (per dog);
< 4> hours of K-9 “at home care” (per dog) =
A 32 hour ACTUAL work week.

CASES

CASE:

GARCIA v SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY
105 S. Ct. 1005 (1985)

(U.S. Supreme Court decision affecting all fifty states)

INITIAL CLAIM:

This claim made the Fair Labor Standards Act (FLSA) applicable to the pubic sector government.

COURT’S RULINGS, FINDINGS AND COMMENTS:

The following cases address specific canine handler compensation issues under this decision.

CASE: NICHOLS v CITY OF CHICAGO
789 F. Supp. 1438 (1992)

(U.S. District Court, N.D. Illinois, E.D.)

INITIAL CLAIM:

Time spent for off-duty care of police dog and related activities was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Police officer/handler was entitled to compensation for his home dog care activities during his off-duty hours.

2) These activities include: feeding, exercising and grooming the dog.

3) The Department of Labor (DOL) has addressed the compensability of home dog care by canine patrol officers in three separate opinion letters (see Fair Labor Standards Handbook 265, 267-68 and 241-42. Reprinting opinion letters of Sept. 21, 1985; Dec. 30, 1985 and June 13, 1989).

These letters address home dog care by an officer dog handler who was required to be responsible for the care, control, grooming and exercise of the dog for 24 hours per day, including the officers regular days off and vacation periods. The DOL found such home care as compensable.

CASE: TRUSLOW v SPOTSYLVANIA COUNTY SHERIFF
993 F. 2d 1539 (1993)

(U.S. Court of Appeals, Fourth Circuit: Maryland, North Carolina,
South Carolina, Virginia and West Virginia)

The Fourth Circuit affirmed this case. The court’s decision was without a published opinion. Technically, this means the court’s rulings, findings and comments cannot be used or referred to in other cases.

Even with this decision without published opinion, the case may be referred to when certain matters of law are pointed out by the Fourth Circuit.

INITIAL CLAIM:

Time spent for off-duty care of police dog and related activities was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Deputy Sheriff/handler was entitled to compensation for his home dog care activities.

2) Handler was entitled to compensation for off-duty care of police dog and related activities, with exception of time Sheriff and dog spent commuting to or from work, training sessions or canine demonstrations.

3) Off-duty time expended in the care, training and required demonstration of a canine unit dog are compensable.

4) Unscheduled emergency calls are compensable.

CASE: GRAHAM v CITY OF CHICAGO
828 F. Supp. 576 (1993)

(U.S. District Court, N.D. Illinois, E.D.)

INITIAL CLAIM:

Time spent transporting police canines to and from work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court ruled that time spent transporting police canines was compensable as integral and indispensable part of officer’s duties.

2) Time spent transporting police canines to and from work in unmarked police cars was compensable under F.L.S.A.

CASE: LEVERING v DISTRICT OF COLUMBIA
869 F. Supp. 24 (1994)

(U.S. District Court, District of Columbia)

INITIAL CLAIM:

Time spent caring for and transporting canines to and from work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Officers were entitled to compensation for time spent exercising, feeding and otherwise caring for the dogs.

2) “Appropriate time” for such compensation was 30 minutes per day, seven days per week.

3) Officers were not entitled to compensation for time spent transporting dogs to and from work.

CASE: REICH v NEW YORK CITY TRANSIT AUTHORITY
45 F. 3d 646 (1995)

(U.S. Court of Appeals, Second Circuit: Connecticut, New York and Vermont)

INITIAL CLAIM:

Time spent transporting police canines to and from work was compensable. (Out-of-court settlement for at-home care.)

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court ruled that handlers’ transporting of dogs to and from work in handlers’ private vehicles, was not compensable within meaning of F.L.S.A.

2) Out-of-court settlement mentioned in this case provides that the handlers will be compensated for a maximum of one hour per day of workday home care and one and one-half hours per day of non-workday home care. This covers time spent feeding, training, exercising and grooming the dogs, as well as cleaning the home and kennel.

(Please note that this case originally went in favor of travel time at the Federal District Court level.)

CASE: ANDREWS v DUBOIS
888 F. Supp. 213 (1995)

(U.S. District Court, D. Massachusetts)

INITIAL CLAIM:

Correctional Officers claimed time spent for off-duty care and transportation to and from work for their police dogs was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Time spent by Correctional Officers feeding, grooming and walking police dogs at home was compensable under FLSA.

2) Time spent by canine officers of the correctional facility commuting to and from work with dogs was not compensable under FLSA. (Some of the officers were given department vehicles for the purpose of transporting the dogs. Others used their own vehicles to transport the dogs.)

CASE: TREECE v CITY OF LITTLE ROCK, ARK.
923 F. Supp. 1122 (1996)

(U.S. District Court, E.D. Arkansas, W.D.)

INITIAL CLAIM:

Time spent for various off-the-clock activities for care of police dogs was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Canine police officers performed activities that were compensable under FLSA when they fed, watered, exercised, groomed, cleaned, cleaned living areas of, trained, arranged veterinary care for and provided home medical care for assigned police dogs during off-the-clock time.

2) Off-the-clock time spent by canine police officers in cleaning, fueling and maintaining police vehicles was compensable.

3) Off-the-clock time spent by police officers cleaning and caring for police equipment such as uniforms and weapons was compensable.

4) This list of compensable activities is very inclusive.

CASE: BOLICK v BREVARD COUNTY SHERIFF’S DEPARTMENT
937 F. Supp. 1560 (1996)

(U.S. District Court, M.D. Florida)

INITIAL CLAIM:

Time spent transporting police dogs between home and work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Time which officers spent in transporting dogs, that they owned and leased to county Sheriff Department, to and from home was not compensable under FLSA; dogs were merely four-legged passengers in officer’s marked patrol cars each day.

2) No significant time or effort was expended in caring for dogs on the ride to and from work.

3) Officers were under no restrictions or limitations with respect to their ability to conduct personal activities with the dogs in their cars during the commute.

4) The department had no custom or practice of compensating officers for transport time.

5) Section 7(K) of the FLSA, 29 U.S.C. Section 207(K) allows public agencies a partial exemption from the overtime provisions of 29 U.S.C. Section 207 (a) (1), with respect to the employment of any employee in law enforcement activities whose work period is at least 7 but no more than 28 consecutive days.

Law enforcement employees subject to Section 7(K) are entitled to time and one-half pay only after they have worked more than 171 hours in a 28-day work period, which translates to almost 43 hours in a 7-day work period (actual hours = 42.75 hours per week).

CASE: RUDOLPH v METROPOLITAN AIRPORTS COMMISSION
103 F. 3d 677 (1996)

(U.S. Court of Appeals, Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska,
North Dakota and South Dakota)

INITIAL CLAIM:

Officers had performed an additional 30 minutes of compensable work on their off-duty days for which they had not been paid.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The employer realized that it had an obligation under FLSA to compensate officers for the time they spent at home doing at-home canine care. The employer met with the officers and entered into an agreement that the officers would be compensated for 30 minutes of dog care on their on-duty days, and one hour (at an overtime pay rate) on their off-duty days.

2) The employer decided it wanted to reduce the off-duty day time to 30 minutes (at an overtime pay rate). This issue went to arbitration. A “reasonable agreement” between the employer and officers was reached with this amount of time, 30 minutes (at an overtime pay rate) on their off-duty days.

3) A reasonable agreement existed between the employer and police officers in the canine unit as to the amount of compensable time officers cared for their dogs while off-duty. Thus, officers were not entitled to any back pay for time spent off-duty caring for dogs in excess of 30 minutes per day specified by agreement, absent evidence that a reasonable employer would necessarily have known that 30 minutes per off-duty day was too short a time to perform tasks which the employer told officers to perform.

CASE: KARR v CITY OF BEAUMONT, TEXAS
950 F. Supp. 1317 (E.D. Tex. 1997)

(United States District Court, E.D. Texas, Beaumont Division)

INITIAL CLAIM:

Time spent for off-duty care of police dog and related activities was compensable. Time spent transporting police canines to and from work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Officers’ care of dogs and related maintenance of vehicles were compensable at overtime compensation.

2) Officer’s transportation of their police dogs in their police vehicles was compensable at overtime compensation. Officers’ principal activity for their employer was working as police officers in the canine division, integral and indispensable part of their work was transportation of their dogs and this work was necessary to the canine division’s business and was performed by officers primarily for the benefit of the police department in ordinary course of its business.

CASE: HOLZAPFEL v TOWN OF NEWBURGH, NEW YORK
950 F. Supp. 1267 (S.D.N.Y. 1997)

(United States District Court, S.D. New York)

INITIAL CLAIM:

Time spent for off-duty care and training of police dog and related activities was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Because basic level of care and attention is essential to ensure police dog’s health and well being, some off-duty efforts on part of canine officer to maintain dog amount to “work” so as to be compensable under FLSA.

2) However, it does not follow that all off-duty dog related activities, no matter how grossly excessive, are sufficiently related to officer’s principal responsibilities or beneficial to dog as to warrant overtime compensation.

3) If canine officer’s specific exertions, even though of type that would generally be compensable, exceed reasonable limits, they cannot be considered integral and necessary and, therefore, do not constitute work so as to be compensable under FLSA.

CASE: HELLMERS v TOWN OF VESTAL, NEW YORK
969 F. Supp. 837 (1997)

(U.S. District Court, N.D. New York)

INITIAL CLAIM:

Time spent for off-duty care of police dog and time spent transporting police dogs to and from work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Officer’s time spent in grooming, bathing, exercising, cleaning and training police dog was compensable under FLSA.

2) Officer’s time spent cleaning his police firearm and cleaning his police vehicle was compensable under FLSA.

3) Officer was not entitled to overtime compensation for time spent commuting to work in a marked police car in his official uniform.

CASE: MAYHEW v WELLS
125 F. 3d 216 (1997) Fourth Circuit

(U.S. Court of Appeals, Fourth Circuit:
Maryland, North Carolina, South Carolina,
Virginia and West Virginia)

INITIAL CLAIM:

Time spent for off-duty care of police dog and related activities was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Time spent by canine handler for caring for and training his dog was compensable.

2) Since the handler was normally compensated by a salary that was fixed for fluctuating hours, his overtime was to be compensated at one-half of his regular pay rate.

3) This case also stated that "at-home care" is compensable, even though the handler owned the dog, the agency used it for law enforcement purposes.

CASE:

(U.S. Court of Appeals for the Federal Court)

INITIAL CLAIM:

Time spent transporting police canines to and from work was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) INS agents’ commutes from home to work and back in assigned marked units, were not compensable under FLSA.

2) Any work performed by INS agents during their commutes that was otherwise compensable under FLSA was “de minimis” in nature and is not compensable.

3) “De minimis” is defined as:
The analysis of:
A) The practical administrative difficulty of recording the additional time;
B) The aggregate amount of compensable time; and
C) The regularity of the additional work.

CASE: ALBANESE v BERGEN COUNTY, NEW JERSEY
991 F. Supp. 410 (1998)

(U.S. District Court for the District of New Jersey)

INITIAL CLAIM:

Time spent for off-duty care of police dog and related activities was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Canine handlers should be compensated for the overtime they spent off the clock caring for and maintaining their dogs.

2) Canine handlers should be compensated for the overtime they spent off the clock for their non-canine activities (caring for their uniforms and guns) to the extent the time is not de minimus.

3) The rate of compensation for overtime is one and one-half times the handler’s regular hourly pay.

4) Handlers should be compensated for the actual time they spent, provided such time is reasonable.

5) The statute of limitations is three years from the time the agency learned of the Garcia decision.

6) The agency must pay liquidated damages of an additional equal amount of the amount of the handler’s unpaid overtime. This is due to the agency not showing they attempted to ascertain the requirements of the FLSA.

CASE: IMADA v CITY OF HERCULES
138 F. 3d 1294 (1998)

(U.S. Court of Appeals, Ninth Circuit:
Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Nevada, Oregon, Pacific Islands and Washington)

INITIAL CLAIM:

Officers (non-canine) wanted compensation for travel time.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Employers are not required to compensate employees for walking, riding or traveling to and from work.

2) Under FLSA, officers are not entitled to compensation for travel time.

CASE: JERZAK v CITY OF SOUTH BEND
996 F. Supp. 840 (1998)

(U.S. District Court, N.D. Indiana, South Bend Division)

INITIAL CLAIM:

Canine officer wanted compensation for caring for and transporting police dog.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Police officer’s activities in feeding, grooming and walking police dog were either de minimus or already compensated. The officer worked seven hours per day and was provided with an additional paid hour to care for police dog.

2) Officer assigned to police department’s canine unit was not entitled under Portal-to-Portal Act to compensation for time spent transporting police dog to and from work.

CASE: THEISEN v CITY OF MAPLE GROVE
41 F. Supp. 2d 932 (1999)

(U.S. District Court, D. Minnesota)

INITIAL CLAIM:

A monthly canine handler rate should be included in their “regular rate” of pay for purposes of calculating overtime compensation.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Under FLSA, a monthly canine handler rate which was paid to police officers as compensation for their skills and responsibilities in caring for police canines during hours called for by their collective bargaining agreements was required to be included in the officer’s “regular rate” for purpose of calculating overtime compensation for time which officer spent providing home care maintenance of canines.

(Reference: Fair Labor Standards Act of 1938, Section 7(a)(1), (e), 29 U.S.C.A. Section 207 (a)(1), (e); 29 C.F.R. Section 778.207.

CASE: BAKER v STONE COUNTY, MISSOURI
41 F. Supp. 2d 965 (1999)

(U.S. District Court, W.D. Missouri, Southwestern Division)

INITIAL CLAIM:

Time spent by deputy caring for and training drug dog was compensable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Time spent by sheriff’s deputy caring for and training the county’s drug dog, an average of five and a half (5-1/2) hours each week, was compensable time worked under FLSA.

2) This time (approximately 45 minutes per day) was compensable, even though the deputy did not include this time on his timecards.

CASE: AIKEN v CITY OF MEMPHIS, TENNESSEE
190 F. 3d 753 (1999)

(U.S. Court of Appeals, Sixth Circuit:
Kentucky, Ohio, Michigan and Tennessee)

INITIAL CLAIM:

Canine officer wanted compensation for transporting police dog.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Police officers were not entitled to compensation for canine commute time.

2) Monitoring the police radio does not convert commute time into compensable work by police officers.

3) Police officers were not entitled to compensation for time spent commuting to and from work in city-owned vehicles assigned to officers. If the officer took time out of the commute to respond to a call or an on-view call, the officer would be compensated.

4) While the presence of marked police cars on streets deterred crime, this was irrelevant for FLSA purposes.
 

CASE: BROCK v CITY OF CINCINNATI
236 F. 3d 793 (2001)

(U.S. Court of Appeals, Sixth Circuit: Kentucky, Ohio, Michigan and
Tennessee)

INITIAL CLAIM:

Negotiated rate of 17 minutes per day, seven days a week for at-home canine care was unreasonable.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The court accepted that one hour a day as overtime on work days and one-and-a-half hour per day on non-work days is appropriate compensable time for at-home canine care.

2) However, the canine handlers had entered into a collective bargaining agreement with the city. This agreement was to pay the officers straight-time compensation for 17 minutes per day, seven days a week.

3) The court concluded that this agreement was reasonable. Nothing disclosed in the record indicates that Cincinnati must have known that 17 minutes per day of compensatory time far under-approximated the actual amount of FLSA work performed by the handlers.

Moreover, nothing indicates that the non-monetary support the city provided in the form of a take-home car, provided dog food, veterinary care, a kennel, travel to competitions, and on-duty training days failed to compensate the handlers reasonably for any deficiency the 17 minutes of straight time in the agreement may have left.

CASE: HOWARD
274 F. 3d 1141 (2001)

(U.S. Court of Appeals, Seventh Circuit: Illinois, Indiana and Wisconsin)

INITIAL CLAIM:

Officers were not compensated enough for at-home care.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The city had a “collective bargaining agreement” with its canine handlers. Pursuant to that agreement, to compensate handlers for at-home care, the handlers received one hour off per work day and they received compensation for one hour at time and one-half on their days off.

2) The handlers were not compensated for at-home care when they were on vacation, personal or sick days or on days which they used compensatory time off. Moreover, the officers were not compensated for at-home care on their training days, when they were called into duty or have their regular shift extended.

3) The court concluded that FLSA rights take precedence over conflicting provisions in a collective bargaining compensation agreement.

4) The city argued that certain premium payments made by the city could be used to offset its overtime liability for the unpaid at-home care.

5) The court concluded that the city cannot use these premium payments, such as court time payments, to offset the overtime liability for at-home care.

CASE: WHITE v SAN MATEO COUNTY
37 Fed. Appx. 280 (2002) Ninth Circuit

(U.S. Court of Appeals, Ninth Circuit:
Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Northern
Mariana Islands, Nevada, Oregon, Pacific Islands and Washington)

The Ninth Circuit affirmed this canine case. The court’s decision was without a published opinion. Technically, this means the court’s rulings, findings and comments cannot be used or referred to in other cases.

Even with this decision without published opinion, the case may be referred to when certain matters of law are pointed out by the Ninth Circuit.

INITIAL CLAIM:

A sergeant was not compensated for at-home care of his police dog.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Time spent caring for and transporting police dogs is compensable.

2) The sergeant could not recover overtime wages because he was “exempt.”

3) The FLSA provides an exemption from overtime for persons employed in a bona fide executive, administrative or professional capacity. In order to satisfy the overtime exemption for executive employees, an employer must satisfy this two-part test:

a) The employee must be paid on a salary basis of not less than $250 per week for the primary duty of managing a recognized department or subdivision;
b) The employee must regularly direct two or more employees.

An employee is entitled to overtime pay if the employer cannot satisfy both tests.

4) San Mateo County was not required to pay the employee overtime since he was a salaried employee who performed executive duties.

CASE: KEARNEY v TOWN OF WAREHAM
316 F. 3d 18 (First Cir. 2002)

(U.S. Court of Appeals, First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island)

INITIAL CLAIM:

Canine handler sued his agency for “at-home” care of his canine under FLSA. The handler won the suit. He was subsequently terminated from his agency. The employee now claims illegal retaliation.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) The canine handler sued his agency for “at-home” care of his canine under FLSA. He won an award of $683.84 in damages, $2,346.81 in costs and $34,589.00 in attorney’s fees.

2) The handler was subsequently terminated from his agency.

3) The handler claims he was terminated because the town was angered because he prevailed in the law suit. The handler invoked an FLSA provision that provides in part:
“It shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.”

4) The court upheld the termination, stating that the FLSA does not constrain an employer who, despite harboring animosity towards an FLSA suitor, makes employment decisions on other grounds, and does so with due deliberation and objectivity.

5) A state civil service hearing reinstated the handler as a peace officer for the Town of Wareham.

6) The final monetary award to the handler was around $60,000. The final attorney’s fees were around $100,000.

CASE: ADAMS V UNITED STATES
350 F. 3d 1216 (Federal Circuit 2003)

(U.S. Court of Appeals for the Federal Circuit: Nationwide jurisdiction in a variety of subject matter, including claims for money from the United States.

CASE: LEEVER v CARSON CITY
360 F. 3d 1014 (Ninth Circuit 2004)

(U.S. Court of Appeals, Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Nevada, Oregon, Pacific Islands and Washington)

INTIAL CLAIM:

Canine handler sued her agency for the “at-home” care of her canine under FLSA. Although she had entered into an agreement with the agency for compensation for the at-home care of the dog, she still sued as the compensation was far below the industry standard.

COURT’S RULINGS, FINDINGS AND COMMENTS:

1) Caring for and training police dogs is compensable under FLSA (Fair Labor Standards Act).

2) An agreement to pay the canine handler biweekly flat fee of $60, the equivalent of one hour’s pay per week, for her overtime work caring for and training her police dog, could not be held reasonable as matter of law.

3) In order for this agreement to be reasonable, the agreement had to take into account some approximation of hours actually worked, or reasonably required to be worked, by the employee.

4) The agreement negotiated between the city and labor union, incorporated into the Collective Bargaining Agreement, was not reasonable as it did not take into account some approximation of the hours actually worked, or reasonably required to be worked, by the employee.

CASE: GREY V CITY OF OAK GROVE
396 F. 3d 1031 (Eighth Circuit 2005)

(U.S. Court of Appeals, Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota)