Issue 3 | May/June 2017 | $9.95
Creating an Effective K9 Unit Part 1
FLSA and the K9 Handler
Canine Care & Handler Compensation
FLSA and
the K9 Handler CANINE CARE & HANDLER COMPENSATION By John M. Peters, Attorney at Law
T
he 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.
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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 off duty performing job-related tasks for their employer.”
A hotly contested and little understood area of FLSA is its application to police canine handlers for time spent off duty 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 the extra work you regularly perform as part of caring for and maintaining your canine after shift ends. Some of you work on a callout 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.
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: 1. Is it ‘work?’ (The Brock Court defined work as “physical or mental exertion required or controlled by the employer.”)
What About Time Spent Commuting with My Canine? 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 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.
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.
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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 1½ 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).
The De Minimis Work Doctrine
Brock relieves an employer from liability for de minimis work on the part of the handler. A 2017 U.S. District Court case out of Ohio explained and applied the Brock test as follows: Even if some of Plaintiff’s activities qualify as “work” under the FLSA, “work” is not compensable if the amount of work is de minimis. Brock, 263 F.3d at 804. Brock referenced the following three factors to determine whether otherwise compensable “work” is de minimis: (1) the size of the claim in the aggregate; (2) whether the claimant performed the work on a regular basis; and (3) the practical administrative difficulty of recording the additional time. Brock, 263 F.3d at 804 (citing Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984)). The Sixth Circuit found that the hour a day spent off duty by the officers in Brock caring for their respective K9 officers was not de minimis. Brock, 236 F.3d at 804. The Court reasoned that although the nature of the officers’ at-home care was not easily monitored, such an administrative difficulty was outweighed by the total amount of time spent and the regularity of which the officers cared for their K9 officers. Id. As in Brock, Plaintiff’s claim for uncompensated off-duty work – four hours of uncompensated work on on-duty days and two hours of uncompensated work on off-duty days – well exceeds a de minimus amount. Doc. 44 at PageID 151415. This Court presumes, like the Sixth Circuit in Brock, that regardless of which party would have been responsible for requiring or attempting it, meaningful monitoring of Plaintiff’s at-home K9 duties would have proven “difficult, expensive, and intrusive.” Brock, 263 F.3d at 804. Waymire v. Miami County Sheriff’s Office, 2017 U.S. Dist. LEXIS 46768 (S.D. Ohio Mar. 29, 2017).
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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. D oes 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 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.
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
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.
Does an Arbitration Provision in a CBA Bar Me from Suing in Court?
The contractual relationship between a handler and his agency may be covered by a collective bargaining agreement (CBA). Often times, CBAs require employee disputes to be submitted to arbitration rather than the courts. However, courts have held that an arbitration provision that does not expressly designate “statutory claims” as being covered by the arbitration clause will not prevent a handler from pursuing his/her FLSA claim in court.
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. Contact John at caninelawyer@gmail.com
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