General
Fair Labor Standards Act (29 USC §§201 et seq) ("FLSA").
Employers must pay employees based on all hours worked. Work includes all time spent as
part of the "principal activity" for which the employee was hired, so long as
the activity provides some benefit to the employer and so long as the employer "knows
or has reason to believe" that the employee is performing the activities.
"Overtime" is work performed over a "threshold," which is typically
forty hours per week (but may be different for some police officers). Overtime must be
compensated at time and one-half.
Police K9 Cases. Courts have consistently awarded FLSA overtime
compensation to police K9 handlers for "home care" of police dogs such as
grooming, bathing, feeding, and exercise; cleaning the dog's living quarters (including
homes) and transport vehicles (POVs as well as police vehicles); "off the clock"
training; etc. Courts have also awarded FLSA overtime to police officers for off the clock
time spent performing activities such as making and receiving police-related telephone
calls from home, police paperwork, cleaning police equipment
(e.g., uniforms, guns), coming early or staying late after shifts without "putting
in" for overtime. "Commuting time" and "on call" time are
generally not compensable (but actual work time when commuting or "on call" is).
Enforcement and Remedies. FLSA claims may be enforced by the US
Department of Labor, or by private legal action (which is more common). Founded FLSA
claims result in back pay awards, plus interest. Statutory interest, called
"liquidated damages" is the norm, and is an amount equal to the amount of back
pay ("double damages"). Prevailing employees are also entitled to recover court
costs and attorneys' fees. FLSA rights "vest" only when an employee files suit.
Employees usually may recover for the period beginning two years before suit is filed (and
continuing until the suit is resolved).
FLSA Questions and Answers
Q. Is the FLSA the same as the "Garcia Act?"
A. Yes, but mostly as a matter of "slang." The 1985 Supreme Court decision in
Garcia v. San Antonio had nothing to do with K9 handlers or police officers per se, but
held that the FLSA applied to public sector as well as private sector employment. The FLSA
has often been referred to as the "Garcia Act" since the Supreme Court decision.
As a result of this court decision, Congress passed some FLSA amendments addressing the
"new" FLSA application to government employment, and these amendments have
sometimes also been called the "Garcia Act."
Q. How much time is a handler entitled to be paid for?
A. "All the time spent performing K9 activities which are reasonably related to
maintain the police dog for the job." This may vary from handler to handler, dog to
dog, and job to job. There is no "industry standard" recognized by the law.
Q. At what rate must FLSA overtime be paid?
A. Usually time and one-half the "regular hourly rate." (For employees whose
normal pay is not an "hourly" rate, their regular rate requires converting pay
to the proper hourly rate.) Longevity pay, shift differentials, and similar
"nondiscretionary" wage augments paid for work should generally be included in
calculating the FLSA overtime rate. There are provisions which may permit arrangements to
pay for some K9- related work at a different rate, but only by agreement before the work
is performed.
Q. May an employer pay a "stipend" to K9 handlers to
satisfy the FLSA?
A. Yes, but only under certain conditions. To comply with the Act, a stipend must be
"hours based" (and not merely a percentage of wages), and the amount of the
stipend must be based on a reasonable estimate of the actual amount of time spent.
Historically, many stipends do not comply with the Act.
Q. What does a handler get if s/he is successful in an FLSA case?
A. Money.
Q. How much money can a handler expect to get from a successful FLSA
suit?
A. It is impossible to predict this with any degree of accuracy, except on an individual
basis after a suit is filed. The number of hours worked will vary from handler to handler.
The number of hours worked which are compensable will also vary, depending on the
handler's work records and schedules, and not all compensable hours worked will be
overtime hours. The "arithmetic" necessary to compute a handler's potential
recovery can be somewhat peculiar under the FLSA. Nonetheless, many K9 handlers have
recovered quite substantial, "five figure" sums as a result of FLSA cases.
Q. Is money recovered in an FLSA case taxable?
A. Yes.
Q. What is the effect of an FLSA recovery on a pension?
A. This will depend on the pension system's rules. However, at least some of an FLSA award
may be considered "back pay." Therefore, if pensions are based on a percentage
of wages earned or "average salary," an FLSA recovery may increase the amount of
pension an officer can receive. Thus, in some circumstances an FLSA award can be "the
gift that keeps on giving."
Q. Do all K9 handlers have to participate in an FLSA suit if one
handler decides to sue?
A. No. FLSA cases are not "class actions." No employee need bring or join an
FLSA suit if s/he does not want to. However, if a handler does not join an existing FLSA
suit s/he will not be entitled to recover any money as a result of the suit. And as a
practical matter, any "downstream consequences" which may result from one
handler bringing an FLSA action (such as schedule restructuring) will likely apply equally
to all handlers in the Department.
Q. How long does an FLSA case take?
A. Who knows? Police officers know that legal proceedings are often slow. Most FLSA cases
are filed in federal courts, and how fast a case can get to trial varies from district to
district (and judge to judge). Many FLSA cases settle before trial, but this is
unpredictable.
Q. What are the time limits on FLSA suits?
A. The FLSA normally permits recovery for work performed beginning two years before a
complaint is filed in court (and continuing "forward" until the case is
resolved). Recovery for this period is essentially on a "no fault" basis. An
additional year's recovery period is permitted if the employer "knew" that it
was supposed to compensate officers for off duty K9 work but "disregarded" this
obligation. "Third year" cases are rare, but not unheard of, and may become more
common as the FLSA application to K9 handlers becomes more well known. Nothing but the
filing of a legal complaint in court "stops the clock." (A complaint to the
employer, or the Department of Labor, does not "toll" the FLSA statute of
limitations.)
Q. How does a handler prove how much time s/he spent?
A. Usually a "reasonable estimate" of time spent on a "day by day" or
"week by week" basis will suffice. Under the law, it is the employer's
obligation to keep track of "all" time worked by employees, including "off
the clock" work time. If an employer does not do so (and most don't), then the
employee is not penalized by the employer's failure to comply with this portion of the
Act.
Q. How does a handler prove that the employer "knew" or
"had reason to believe" that off duty K9 work was being performed?
A. An employer will be held to "know" what it "could have found out"
if it had paid attention to what its employees were doing. The legal standard is whether
an employer could have learned of the handler's activities by making "reasonably
diligent" inquiries. According to the courts, it is a "rare" case in which
an employer will be found to lack the requisite knowledge when the activities in question
are "part and parcel" of an employee's job, unless the employee has deliberately
"hidden" the fact that s/he is performing them.
Q. Does it matter that a handler did not "put in for" the
time spent performing K9 activities?
A. Probably not. "Failure to ask" is not a defense for an employer in an FLSA
case. Failure to ask might conceivably be relevant on the question of whether an employer
"knew" or "had reason to believe" that an employee was performing off
duty work, but even in this situation failure to ask would be only one factor on the
question.
Q. Does it matter that the officer owns the police dog and the
Department does not?
A. Probably not. The Department of Labor has ruled that ownership of the dog "is not
a factor." Most courts have agreed. There could be situations in which ownership of
the dog might be a consideration, but these would be unusual.
Q. May an employer lawfully abolish the K9 program in response to an
FLSA claim?
A. Probably. However, while this is almost always a fear expressed by handlers, and often
"threatened" by employers, it is more common for management to restructure K9
programs to comply with the Act.
Q. May an employer lawfully retaliate against an employee who makes
an FLSA claim?
A. No. The FLSA prohibits discriminating against employees who assert FLSA rights, and
these "anti-retaliation" provisions have real "teeth." While fear of
retaliation is common, actual instances are rare. This does not mean, of course, that the
employer cannot restructure K9 units. It is not against the law to comply with the law.
Officers are entitled either to be paid properly for their work, or to not have to do the
work. (You either get the money or the time.) Abolishing a K9 program entirely in the face
of an FLSA problem is probably not retaliation. Selectively transferring complaining
officers out of K9 probably would be.
Q. What is the relationship of collective bargaining to the FLSA?
A. As a general rule, FLSA rights may not be waived, either by collective bargaining or
otherwise, and employees are entitled to FLSA rights or "contract rights"
whichever are more favorable. However, employees may not normally assert "contract
rights" in an FLSA case. In an FLSA case it is usually the FLSA rules which apply,
even if they are different from contractual provisions.
Q. What is an FLSA "threshold?"
A. FLSA overtime generally means hours worked over 40 in a week. There are special rules
which may permit alternative work periods which can raise the number of hours worked
before FLSA overtime is due (for example, 171 hours every 28 days). FLSA overtime is due
only for hours worked over the FLSA threshold, even if "contract overtime" may
provide employees with overtime on some other formula (such as hours worked over 8 per
day). For FLSA purposes, only "actual" work counts toward the overtime
threshold. For example, leave time does not count as work time under the FLSA, even if the
time is paid for and considered working time for other purposes.
Q. How does a handler start an FLSA case?
A. Usually by hiring an attorney. The FLSA is not "rocket science," but it is
also not part of most "regular" lawyers' day to day practices. As a consequence,
many employees will seek out attorneys with substantial FLSA experience, or
"local" attorneys will "affiliate" with FLSA lawyers on particular
cases (usually at no additional cost to the employee).
Q. How do employees pay their FLSA lawyers?
A. Many FLSA lawyers will take FLSA cases on some variation of a "contingency
fee." This usually means that the employees pay no legal fees unless and until they
win the case, and then fees are based on a percentage of the amount recovered. Successful
FLSA plaintiffs are entitled to an attorneys' fee award from the employer in addition to
any other recovery (like in civil rights cases).
Q. What actual financial costs or risks are there for an employee to
bring an FLSA case?
A. If the employee hires attorneys on a contingency fee basis, there are no "up
front" expenses for legal fees. However, employees are responsible for "court
costs," such as filing fees, stenographic transcription fees, etc. These may, or may
not, be "fronted" by the attorneys, but employees are ultimately responsible for
paying (or reimbursing) these expenses. (Court costs are paid by the loser, so employees
are "on the hook" for these expenses only if they lose the case.)
Q. Are employees obligated to pay the employer's legal fees if they
lose the case?
A. No (except in the unlikely event a court were to decide the suit was
"frivolous").
Q. Does the FLSA mean the end of police K9 units?
A. No. K9 programs cost money, but there are a variety of techniques for structuring K9
units to comply with the FLSA and still be affordable. Employers may, for example,
"short shift" K9 officers to provide time for necessary K9 duties. Special
"7(k) work periods" may be established which can provide flexibility for
performing K9 duties while minimizing overtime. Employers and employees can agree on
special rates of pay for some routine dog care activities, and this can substantially
reduce costs. Employers and employees can also agree on an appropriate amount of time to
be compensated, and this can provide budget stability and predictability. "Comp.
time" instead of cash wages may be used to compensate handlers in some instances.
However, these techniques must be in place before the work is performed. The really
expensive FLSA costs occur when officers have performed K9 work before arrangements have
been made to compensate them properly.
