K-9 Handlers Under the FLSA

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June/July 2014 - Volume 6, Issue 2

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K-9 HANDLERS UNDER THE FLSA By: John Peters

The Fair Labor Standards Act 29 USC § 201 (FLSA) is a law which was enacted in 1938. It imposed a minimum wage, mandatory overtime compensation at time and one half and a 44 hour, 7 day work week. The FLSA was enacted to protect against the exploitation of labor, especially child labor, by private sector employers with greater leverage than their employees.

In Garcia v San Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985) the Supreme Court expressly overruled its prior ruling in National League of Cities v Usery, 426 U.S. 833 (1976) and held that the extension of FLSA coverage to employees of state and local governments was not unconstitutional. Congress would formally apply FLSA to state and local governmental employees one year later.

A hotly contested and little understood area of FLSA is its application to police canine handlers for time spent offduty performing job-related tasks for their employer. Most canine handlers take their canine partner home with them at the end of shift. Each of you knows 6 0 • K- 9 C O P M A G A Z I N E

the extra work you regularly perform as part of caring for and maintaining your canine after shift ends. Some of you work on a call-out basis and have to have your canine prepared to deploy at a moment’s notice.

What constitutes compensable overtime work for a police canine handler, pursuant to the FLSA? This question was answered in Brock v City of Cincinnati, 236 F.3d 793 (6th Cir 2001). It remains the prevailing case for canine handlers’ claims for overtime compensation under FLSA.

1) Is it ‘work?’ (The Brock Court defined work as “physical or mental exertion required or controlled by the employer.”)

2) Is the task being performed necessarily and primarily for the benefit of the employer?

3) Is the work an indispensable and integral part of the principal activities of the employment?

By way of example, is a short walk with your canine off-shift necessarily and primarily for the benefit of your employer? Not really. It is coincidentally for your employer’s benefit, but also has benefits for you. On the other hand, if you are being required to roll scent towels, this is not only “necessarily and primarily for the benefit of the employer,” it represents “an indispensable and integral part” of your assignment as a canine officer.

What About Time Spent Commuting With My Canine?

What is Compensable ‘Work?’

The Brock Court developed a three prong test to determine whether the time claimed by a canine handler is compensable under FLSA:

The Portal-to-Portal Act, 29 USC § 254, was passed to limit the obligations created by the FLSA. It generally prohibits a handler from including time spent commuting to and from his/her place of employment

K-9 legal with a canine for FLSA purposes. As stated by the Court in Reich v New York City Transit Authority, 45 F.3d 646 at 652 (2nd Cir 1994), “The mere presence of a dog does not make the commute compensable.” However, if the handler is required to perform substantial canine services as part of the commute, they can be compensable as work under FLSA. The Portal-to-Portal Act also allows for commute time to be compensable if that is provided for by an agreement (written or non-written) between the handler and the employer or can be shown to have been compensable through a custom and practice existing within the agency and not at odds with any written or non-written agreement covering this same issue.

What Constitutes Overtime?

The FLSA generally holds that any time beyond 40 hours per week constitutes overtime.

However, there is an exception for police and fire personnel.

Overtime for a police officer is more than 43 hours in any seven day work week or 171 hours in any 28 day work

period. There is no requirement for daily or holiday overtime and no requirement to count hours paid as hours worked. Overtime pay must be at least 1 ½ times regular pay under the FLSA. The FLSA requires employers to maintain accurate records of their employees, the employees’ wages, time worked and other conditions of employment.

The failure of an employer to maintain such records is itself a violation of the Act. 29 USC § 215(a)(5).

Can My Employer Pay Less Than FLSA Requires?

The Brock Court held that an agreement between canine handlers and their employer which provides for less benefits than FLSA can be enforceable.

However, the Court will look to these elements to determine if the agreement is enforceable: 1) Was the agreement fairly negotiated or unilaterally imposed by the employer?

2) Does the agreement set a compensation formula which is at odds with work which is known or required by the employer?

3) What additional benefits are being received by the canine handler? Example: free installation of kennel at handler’s home, paid attendance at seminars and competitions, free food and veterinary care, and the benefit of having a highly trained family pet.

The Brock Court referred to this as the fairness test, and it best describes the Court’s approach. Courts will allow the parties to contract for a compensation formula different than that prescribed by the FLSA. However, where it feels that the agreement was not fairly negotiated or is grossly at odds with work being required by the employer the Court will refuse to enforce such an agreement and will default to the provisions of the Act. At least one case has held that in setting the amount of off-duty overtime a canine handler will be paid, the agency must consider the amount of time actually being spent by the handler in the performance of his/her off-duty tasks. Leever v Carson City, 360 F.3d 1014 (9th Cir 2004) In that case, the agreement was held unenforceable due to the agency’s failure to take

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this factor into consideration.

Although the handler and employer may reach agreement for something less than what the FLSA requires, an employee may not completely waive his rights under FLSA.

When Does An FLSA Claim Have to Be Made?

FLSA claims must be brought within two years of the alleged violation by the employer. If the employer’s violation can be shown to be ‘willful,’ the claim can be brought within three years. The statute determines how far back the claim can reach. For example, if the original violation occurred in 2010, and continued through 2012 and you waited until 2013 to bring the claim you can only recover for unpaid overtime dating back two years from the date you file your claim or three years in the case of “willful” disregard. A handler is not required to make a contemporaneous request for his/ her overtime and failing to do so will not waive an FLSA claim as long as it is brought within the applicable statute of limitations.

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What Can A Handler Recover Under FLSA? Any unpaid overtime can be recovered up to two or three years back, depending upon a finding of willfulness by the employer. The statute also authorizes a penalty equal to double the amount of the unpaid wages for willful violations as well as the recovery of attorney fees if the claim is successful.

Can My Employer Take My Dog for Filing a Claim?

Many handlers are faced with threats of being removed from the canine unit, having their dog reassigned or having the unit discontinued altogether. These threats are often effective in deflecting FLSA claims. However, the FLSA specifically prohibits retaliation by the employer against those who seek to pursue their rights under the Act. 29 USC § 215(a)(3). Generally, any adverse employment action by the employer in response to an FLSA claim would be considered retaliatory. Case law defines adverse employment

action as any action which results in a significant change in employment status. For canine handlers, the removal of their canine or their reassignment to a position from which they will no longer earn the overtime associated with being a canine handler can be considered adverse employment actions.

Conclusion As the Brock Court stressed in developing the fairness test, handlers and employers are supposed to be on a common mission. Handlers should not be dummying up hours to raise their income at the expense of their employer and employers should not be trying to take advantage of handlers by burdening them with off-duty tasks for which the employer has no intention of compensating the handler. The courts will enforce an agreement fairly negotiated between the parties which accurately reflects the realities of handler off-duty overtime. If the parties do not respect each other they will take their chances in court. So, be smart, work it out and avoid that risk.

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