Appendix — Aiken v. City of Memphis

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

_Supreme Court, U.S.

\F ILE D

99 970 DE- 6 1999

No. OFFICE OF IHE CLERK

(ee ee

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM RUSSELL AIKEN, et al

Petitioner(s)

CITY OF MEMPHIS, TENNESSEE

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

William B. Aitchison

OSB 77009

Counsel of Record

Aitchison & Vick, Inc.

3021 N.E. Broadway

Portland, Oregon 97232

(503) 282-6160

William Russell AIKEN, et al., Plaintiffs-Appellants,

CITY OF MEMPHIS, Tennessee, Defendant-Appellee.

No. 97-6371.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 18, 1998.

Decided Sept. 7, 1999.

Affirmed.

Ryan, Circuit Judge, filed opinion concurring in part

and dissenting in part.

William B. Aitchison (argued), Aitchison & Vick,

Portland, Oregon, Edwin Dean White III (briefed), Farris,

Mathews, Branan & Hellen, Memphis, Tennessee, for

Appellants.

Louis P. Britt III (argued and briefed), McKnight,

Hudson, Ford & Harrison, Memphis, Tennessee, for Appellee.

Before: MARTIN, Chief Judge; RYAN and COLE,

Circuit Judges.

COLE, J., delivered the opinion of the court, in which

MARTIN, C. J., joined. RYAN, J. (pp. 762-65), delivered a

separate opinion concurring in part and dissenting in part.

COLE, Circuit Judge.

Plaintiffs, past and present Memphis police officers,

brought an action against the city of Memphis asserting

various claims under the Fair Labor Standards Act (FLSA or

Act), 29 U.S.C. §§ 201 et seq. Plaintiffs currently appeal the

district court’s dismissal of two of those claims on summary

judgment and the court’s final judgment in favor of the city on

three other claims. For the following reasons, we AFFIRM the

judgments of the district court.

Plaintiffs filed this action on January 7, 1993. During

the course of the litigation, plaintiffs alleged, among other

things: that certain aspects of the city’s sick leave policy

violate the FLSA; that the Act requires the city to compensate

canine officers for the time they spend commuting to work

with their assigned dogs; that aspects of the city’s policy

SERRE NCAT CONE av parm enernrnne:

regarding the use of compensatory time violate the FLSA: that

police captains are not exempt from FLSA overtime

requirements; and that officers are entitled under the Act to

compensation for time spent maintaining and commuting to

work in city vehicles. The district court granted the

defendant’s motion for summary judgment on plaintiffs’ first

two claims. Following a pretrial conference, the parties

submitted the remaining claims to the district court for a

decision based on trial memoranda, stipulations, and exhibits.

The district court eventually found in favor of the city on these

claims as well. This timely appeal followed.

I]. STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of

summary judgment. See Hartsel v. Keys, 87 F.3d 795, 799

(6th Cir.1996). We affirm “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When

evaluating an appeal, this Court views the evidence in the light

most favorable to the non-moving party. See Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986).

On the issues that the district court ruled on at trial, we

review the district court’s conclusions of law de novo. See

Doe v. Claiborne County, 103 F.3d 495, 505 (6th Cir.1996).

We review its findings of fact for clear error. See United

States v. Martin, 95 F.3d 406, 408 (6th Cir.1996).

III. DISCUSSION

III.A Compensatory Time

Plaintiffs contend that the district court erred by ruling

that the city’s policy regarding the use of compensatory time

does not violate the FLSA. Pursuant to memoranda of

understanding between the city and the plaintiffs’ union,

officers who work overtime may choose between receiving

overtime pay or compensatory time. Officers can accumulate

up to 480 hours of compensatory time. The memoranda dictate

that an officer wishing to use accrued compensatory time must

sign his or her precinct’s compensatory time log book any

time within thirty days of the requested day off. However, the

city also requires that the commanding officer of each precinct

monitor its log book to ensure that each shift is adequately

staffed. If the commanding officer determines that further

requests for time off would adversely affect the functioning of

the unit, based on the circumstances of the case, he or she will

not allow more officers to sign up to use compensatory time

on that particular day.

The plaintiffs argue that this practice of closing a

precinct’s log books violates the FLSA. The Act allows public

agencies to provide, in lieu of overtime, “compensatory time

off at a rate not less than one and one-half hours for each hour

of employment for which overtime compensation is required

by this section.” 29 U.S.C. § 207(0)(1). The Act imposes

several conditions on a public agency’s ability to offer

compensatory time, however. Two are relevant for the

purposes of this case. First, an employer may grant

compensatory time in lieu of overtime pay pursuant only to a

collective bargaining agreement, or other agreement. See 29

U.S.C. § 207(0)(2)(A). Second, an employee “shall be

permitted by the employee’s employer to use such time within

a reasonable period after making the request if the use of the

compensatory time does not unduly disrupt the operations of

the public agency.” 29 U.S.C. § 207(0)(5).

The plaintiffs’ argument focuses on the phrase “unduly

disrupt” in § 207(0) (5). They begin by arguing that §

207(0)(5) requires an employer to grant an employee’s

reasonably timed request for the use of banked compensatory

time, unless the use of the time would be unduly disruptive.

See 29 C.F.R. § 553.25(d) (“For an agency to turn down a

request from an employee for compensatory time off requires

that it should reasonably and in good faith anticipate that it

would impose an unreasonable burden on the agency’s ability

to provide services of an acceptable quality and quantity for

the public during the time requested without the employee’s

services.”); S.Rep. No. 99-159 (1985) (“By unduly disruptive,

the Committee means scmething more than mere

inconvenience.”). The city, however, acknowledges its policy

is not to grant overtime pay to one officer so that another can

use compensatory time on a requested date. Plaintiffs contend

that the payment of overtime to an officer so that another can

use banked compensatory time is not an undue disruption. See

Heaton v. Moore, 43 F.3d 1170, 1181 (8th Cir.1994)

(“Moreover, the eventual payment of overtime compensation

cannot be deemed ‘unduly disruptive.’ “); 52 Fed.Reg.

11,2017 (1987) (“The Department recognizes that situations

may arise in which overtime pay may be required of one

employee to permit another employee to use the compensatory

time off. However, such a situation, in and of itself, would not

be sufficient for an employer to claim that it is unduly

disruptive.”). Plaintiffs conclude, therefore, that the city

violates the Act by shutting the logbooks not at the point of

undue disruption, but rather at the point at which a precinct

would begin having to pay replacement officers on an

overtime basis.

The fundamental defect in the plaintiffs’ position,

however, is that it completely ignores the phrase “reasonable

period,” which the Act gives the parties the freedom to define.

See Moreau v. Harris County, 158 F.3d 241, 246-47 (Sth

Cir.1998); see also 29 C.F.R. § 553.23(a)(1) (providing that

agreements between employers and employees with regard to

compensatory time are valid as long as they are not in conflict

with the FLSA itself). Title 29 C.F.R. § 553.25(c)(2),

specifically provides that:

The use of compensatory time in lieu of cash

payment for overtime must be pursuant to some

form of agreement or understanding between

the employer and the employee (or the

representative of the employee) reached prior

to the performance of the work. (See §

553.23.)' To the extent that the conditions

' Title 29 C.F.R. s 553.23 provides, in its relevant sections:

(a) General.

(1) As a condition for use of compensatory time in lieu of overtime

payment in cash, section 7(0)(2)(A) of the Act requires an agreement or

understanding reached prior to the performance of work. This can be

accomplished pursuant to a collective bargaining agreement, a

memorandum of understanding or any other agreement between the public

agency and representatives of the employees...

(2). The agreement or understanding may include other provisions

governing the preservation, use, or cashing out of compensatory time so

long as these provisions are consistent with section 7(0) of the Act....

under which an employee can take

compensatory time off are contained in an

agreement or understanding as defined in §

553.23, the terms of such agreement or

understanding will govern the meaning of

“reasonable period.”

(emphasis added). Furthermore, in the comments to the final

version of 29 C.F.R. § 553.25, the Department of Labor stated

that:

The Department believes ... that some parties

may choose to include in their agreement or

understanding the conditions or terms regarding

the taking of compensatory time off. No useful

purpose would be served, in the Department’s

view, by providing for some further review

under the FLSA of the appropriateness of the

agreed upon terms.

52 Fed.Reg. 11,2017 (1987); see also Auer v. Robbins,

519 U.S. 452, 117 S.Ct. 905, 911, 137 L.Ed.2d 79

(b) Agreement or understanding between the public agency and a

representative of the employees.

(1) Where employees have a representative, the agreement or

understanding concerning the use of compensatory time must be between

the representative and the public agency either through a collective

bargaining agreement or through a memorandum of understanding or

other type of oral or written agreement.

(1997) (Secretary of Labor’s interpretation of own

regulations is controlling unless plainly erroneous).”

In this case, the city and the plaintiffs’ union had an

agreement on the issue of compensatory time. The agreement

provided “the conditions under which an employee can take

compensatory time off.” 29 C.F.R. § 553.25. These include a

condition that once a certain number of officers requested a

specific day off, the commanding officer may close the

precinct’s log book for that day. The city and the union in this

case have agreed, then, that the reasonable period for

requesting the use of banked compensatory time begins thirty

days prior to the date in question and ends when the number of

officers requesting the use of compensatory time on the given

> We acknowledge some difficulty reconciling 29 C.F.R. § 553.25(c)(2)

and 29 C.F.R. § 553.25(d). The Seventh Circuit, however, has recently

noted the importance of private ordering in FLSA cases, even in situations |

in which the FLSA has not granted parties the broad freedom to contract

that it has here. See Dinges v. Sacred Heart St. Mary’s Hospitals, Inc., 164

F.3d 1056, 1059 (7th Cir.1999) (“[W]e must take account of the

arrangement plaintiffs themselves chose.... Although the FLSA overrides

contracts, in close cases it makes sense to let private arrangements endure--

for the less flexible statutory approach has the potential to make everyone

worse off.”). We agree.

date would bring the precinct’s staffing levels to the minimum

level necessary for efficient operation. We are loath to

interfere with this agreement. Therefore, we conclude that the

district court did not err by finding for the city on this claim.

III.B Canine Commute Time

Plaintiffs also contend that the district court erred by

granting summary judgment in favor of the city on plaintiffs’

claim for compensation for canine commute time. Memphis

maintains a “Canine Squad,” uf which some plaintiffs are

members. The city assigns each member of the squad a dog

and a vehicle to transport the animal. The city also requires

that members board the dogs at their homes and that they feed,

train, walk, and clean up after their four-legged partners. The

parties have settled most of the issues relating to compensation

for time officers spend caring for dogs while not on duty.

However, as the dogs reside in squad members’ homes, the

city also requires each canine officer to drive his or her dog to

work in the vehicles that the city provides. Plaintiffs contend

that squad members spend a significant amount of time during

their commutes “feeding, training, walking, and cleaning up

after the dog[s].” Nevertheless, the city does not compensate

officers for either their entire commuting time or for the time

during the commute that they spend caring for dogs. Plaintiffs

contend that this policy violates the Act. We disagree.

“The Portal-to-Portal Act, which amended the FLSA in

1947, 29 U.S.C. § 521 et Seq., represented an attempt by

Congress to delineate certain activities which did not

constitute work,” and which are therefore non- compensable.

See Reich v. New York City Transit Auth., 45 F.3d 646, 649

(2nd Cir.1995). “[WJalking, riding, or traveling to and from

the actual place of performance of the principal activity or

activities which such employee is employed to perform” is one

example of a non-compensable activity. 29 U.S.C. §

254(a)(1). Similarly, employees are not entitled to

compensation under the Act for “activities which are

preliminary to or postliminary to said principal activity or

activities, which occur either prior to the time on any

particular workday at which such employee commences, or

subsequent to the time on any particular workday at which he

ceases, such principal activity.” 29 U.S.C. § 254(a)(2). The

effect of these sections is to make ordinary commute time

non-compensable under the FLSA.

Despite these provisions, an employee is entitled to

payment for any work that the employer requires the employee

to perform during the commute. See 29 C.F.R. § 785.41.

Several courts recently have addressed the issue of the

compensability of canine care that occurs during commutes;

the leading case is Reich. “Feeding, training, and walking [a

police dog] are work” and are therefore compensable

activities. Reich, 45 F.3d at 651. It follows, then, that to the

extent that “[s]uch true dog-care work occurr[s] during the

commute [it] is not exempted from compensation by the

Portal-to-Portal Act.” Id. at 652.

Plaintiffs, however, have not adduced evidence that

canine officers spend more than a de minimis amount of time

during their commutes engaged in such activities. See Reich,

45 F.3d at 652-53; see also Bobo v. United States, 136 F.3d

1465, 1468 (1998); Andrews v. DuBois, 888 F.Supp. 213, 219

(D.Mass.1995); Levering v. District of Columbia, 869 F.Supp.

24, 29-30 (D.D.C.1994). “When the matter in issue concerns

only a few seconds or minutes of work beyond the scheduled

working hours, such trifles may be disregarded. Split-second

absurdities are not justified by the actualities of working

conditions or the Fair Labor Standards Act.” See Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187,

90 L.Ed. 1515 (1946); see also United States Dep’t of Labor v.

Cole Enterprises, Inc., 62 F.3d 775, 780 (6th Cir.1995).

Plaintiffs’ affidavits demonstrate only that officers must

“occasionally stop to feed the dog, let him out of the car or

clean up after him while traveling to work.” Although

plaintiffs’ affidavits also indicate that officers must

“constantly” and “on a regular basis” discipline their dogs,

such generalities do not create a question of fact. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986) (holding that a mere scintilla of

evidence in support of the nonmoving party’s position is

insufficient to survive a motion for summary judgment). Even

if we were inclined to conclude, which we are not, that this

“evidence” indicates that, over the course of a commute, the

seconds that it takes to discipline a dog--even on a regular

basis--could add up to a significant amount of time, we are at a

loss as to how Memphis could be expected to document such

time. See Lindow v. United States, 738 F.2d 1057, 1062-63

(9th Cir.1984) (setting forth factors relevant to the de minimis

doctrine, including size of the aggregate claim and practical

difficulty of recording the time).

III.C Vehicle Maintenance & Non-Canine Commute Time

The plaintiffs also contend that the district court erred

by ruling in favor of the city with regard to other commuting

issues. The city provides some officers vehicles for use in

commuting to and from work. If an officer is assigned a take-

home vehicle, the officer must schedule maintenance for the

vehicle, must keep the vehicle’s radio on during the commute,

and must respond to disabled vehicles or crimes that the

officer observes during the commute. Plaintiffs sought

compensation for the time they spend cleaning and scheduling

maintenance for their city vehicles, and for the time spent

commuting to work in them.

On the cleaning and maintenance issue, plaintiffs

claims are without merit. The FLSA provides that:

[T]he use of an employer's vehicle for travel by

an employee and activities performed by an

employee which are incidental to the use of

such vehicle for commuting shall not be

considered part of the employee's principal

activities if the use of such vehicle for travel is

within the normal commuting area for the

employer's business or establishment and the

use of the employer's vehicle is subject to an

agreement on the part of the employer and the

employee or representative of such employee.

29 U.S.C. § 254(a) (emphasis added). Plaintiffs do not argue

that officers’ use of police vehicles for commuting purposes

takes officers outside of their normal commuting areas or that

there is no agreement between the city and the officers’ union

covering these matters. Keeping vehicles clean and scheduling

maintenance to be done at the city’s expense are hardly

arduous and precisely the sort of activities that Congress had

in mind when it used the phrase “incidental to the use of [the

employer’s] vehicle.” Id. The legislative history of the 1996

amendments is instructive: “It is not possible to define in all

circumstances what specific tasks and activities would be

considered ‘incidental’ to the use of an employer’s vehicle for

commuting.... [R]outine vehicle safety inspections or other

minor tasks have long been considered preliminary or

postliminary activities and are therefore not compensable.”

H.R. Rep. 104-585.

On the issue of compensation for the entire commute,

we likewise find that the district court did not err; monitoring

a police radio does not convert commute time into

compensable work. Cf. Bartholomew v. Burlington, 5

F.Supp.2d 1161, 1170 (D.Kan.1998) (employer requirement

that out-going officer brief in-coming officer during commute

does not change nature of travel time). Plaintiffs contend that

they should be compensated because they must respond to

emergencies that they observe while driving to work or that

are communicated by radio dispatch. They also contend that

they should be compensated because the presence of marked

police vehicles on the city’s streets deters crime.

Plaintiffs are incorrect. As an initial matter, if an

officer takes time out of his or her commute to respond to an

incident, he or she is compensated if the response takes more

than thirty minutes.’ Second, although the presence of marked

police cars on the streets arguably deters crime, this is

irrelevant for FLSA purposes. See Hellmers v. Vestal, 969

F.Supp. 837, 843 (N.D.N.Y.1997) (“Nowhere in the [FLSA]

does there appear to be an exemption for commuting time

spent in marked police cars.”); H.R. Rep. 104-585 (“The fact

that a vehicle may been modified for special purposes,

displays company logos, or is specially equipped does not

alter the nature of such travel.”’). Finally, the amount of work

* The city apparently takes the position that shorter stops are de minimis.

Plaintiffs note that shorter stops are not compensated, but do not argue that

the city’s threshold length of time for compensability is too high, choosing

instead to argue that all commuting time is compensable.

involved in monitoring a police radio during a commute is

simply de minimis.’ Again, the district court did not err.

II1.D. Location-When-Ill Policy

The plaintiffs contend that the district court erred in

granting summary judgment on the issue of whether the city’s

Location-When-Ill (LWI) policy, DR 1104, violates the

FLSA. The department pays employees on leave for illness or

an on-the-job injury at their normal hourly rate for their

regular shifts. The department’s L WI policy, however,

regulates the activities of employees who are on leave. It

provided, during the time period in question,” that “[a]

member reporting sick or injured shall be confined to his or

* This case is distinguishable from those that have held that a requirement

that employees monitor a noisy radio converts on-call time to work. See,

e.g., Cross v. Arkansas Forestry Comm'n, 938 F.2d 912, 916- 17 (8th

Cir.1991). In those cases, the key is whether monitoring the device, even

where it is portable, prevents employees from using their free time as they

wish. For example, a squawking radio would hardly be welcome in church,

the library, or the movies; it would effectively prevent the employee from

engaging in any pursuit in a location that demands quiet. Here, however,

the question is whether the employer requires the employee to perform a

significant amount of work during the commute. Under the facts of this

case, we conclude that the answer is no.

5 After the commencement of this litigation, the city “clarified” the LW]

policy. It now provides that it applies only “during his or her scheduled

duty hours.”

her residence, clinic, or hospital, except to visit his or her

personal physician or by permission of his or her supervisor.’””

The policy thus placed no restrictions on an officer’s activities

while at home, but if an officer left home without permission,

he or she was subject to discipline. The record indicates that

the city enforced the policy with checks by supervisors every

third day. The department made checks “at all hours.” It

conducted them by phone, but if there was no response, the

city sent someone to the officer’s residence.

Plaintiffs claim, however, that the LWI policy was so

onerous and intrusive that any waking hour spent under it

counts as an hour worked for the purposes of the FLSA.

Therefore, plaintiffs claim that they are entitled to overtime

compensation for “non-sleeping time spent outside of their

regular workshifts under the structures of DR 1104.”

° The reason for this policy was, as the defendant puts it, to dissuade

officers from “the inappropriate practice of using ‘sick’ days as additional

vacation days.”

Generally speaking, the FLSA requires employers to

compensate an employee at a rate of pay not less than one and

one-half times the employee’s normal rate of pay for hours the

employee works above the statute’s applicable maximum

workweek. See 29 U.S.C. § 207(a). Under certain

circumstances, employer restrictions on what is ostensibly an

employee’s free time can cause such time to count as hours

worked. See 29 C.F.R. § 553.221(c), (d). The question

confronting this Court is analogous to that posed by cases

considering the compensability of “on-call” time.’ An

employer must compensate an employee for time spent

“predominantly for the employer’s benefit.” Martin v. Ohio

Turnpike Comm’n, 968 F.2d 606, 609 (6th Cir.1992) (citing

Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165,

89 L.Ed. 118 (1944)); see also 29 C.F.R. § 553.221(c), (d). In

other words, the question in on-call cases is whether the

7 An on-call employee leaves the employer’s premises “with the

understanding that he or she is expected to return to work” if called in. 29

C.F.R. § 553.221.

employer’s restrictions on officers’ time “prevent the

employees from effectively using the time for personal

pursuits.” Martin, 968 F.2d at 611. “That some of the

plaintiffs’ personal activities may have been affected is not

enough.” Id. In making this determination, the Court examines

“all the circumstances of the case.” Id. at 609 (interna! quotes

omitted). “[A]n employee’s free time must be severely

restricted for off-time to be construed as work time for

purposes of the FLSA.” See Dade County v. Alvarez, 124

F.3d 1380, 1384 (11th Cir.1997) (internal quotes omitted),

cert. denied, --- U.S. ----, 118 S.Ct. 1804, 140 L.Ed.2d 943

(1998).

Using this fact-specific standard as a guide, it is clear

that time Memphis officers spend subject to the city’s LWI

policy is not compensable work.® At home, such officers are

* An initial, and obvious, difference between this an on-call cases in which

courts have held employee time compensable is that an officer on LWI

leave is presumed to be too ill or injured to work. Therefore a Memphis

officer on leave does not have to contend with the possibility of being

called in by the department.

free to use their time as they please. Although they must

receive permission before leaving home--assuming of course

that the officer is well enough to leave home--there is no

evidence in the record to indicate that Memphis ever, let alone

routinely, denied permission. Thus, we conclude that

Memphis’s insignificant phone-in burden does not transform

recovery time into work, as it is not “so onerous as to prevent

employees from effectively using the time for perscaal

pursuits.” Martin, 968 F.2d at 611. Indeed, the relatively few

cases that have held on-call time compensable involved a

significantly greater intrusion on employees than exists in this

case. See, e.g., Bright v. Houston Northwest Medical Center

Survivor, Inc., 934 F.2d 671, 678-79 (Sth Cir.1991) (employee

on call 24 hours a day, 365 days a year, must always be sober

and within 20 minutes of work); Cross v. Arkansas Forestry

Comm’n, 938 F.2d 912, 916-17 (8th Cir.1991) (employees

required to monitor noisy hand-held radio 24 hours per day,

forcing them to concentrate on radio all day and preventing

them from going anywhere noise would be unwelcome); see

also Berry v. County of Sonoma, 30 F.3d 1 174, 1183 (9th

Cir.1994) (listing as one of the “illustrative, non-exhaustive”

list of factors that a court should consider in determining

whether an employee is free to engage in personal activities

“whether there were excessive geographical restrictions on

employee's movements”). The district court was correct to

dismiss this claim.

III.E. Exempt Status of Captains

Finally, plaintiffs contend that the district court erred

by ruling in favor of the city on plaintiffs’ claim regarding

police captains. Memphis does not pay overtime to captains

because it classifies them as salaried, executive employees.

The FLSA does not require employers to provide overtime pay

to “bona fide executives.” 29 U.S.C. § 213(a)(1). The

regulations implementing the FLSA provide that for an

employee to fall within this exemption, that employee must be

paid on a “salary basis.” 29 C.F.R. § 541.1(f). An employee is

so paid “if under his employment agreement he regularly

receives each pay period on a weekly, or less frequent basis, a

predetermined amount constituting all or part of his

compensation, which amount is not subject to reduction

because of variations in the quality or quantity of the work

performed.” 29 C.F.R. § 541.118.

The plaintiffs contend that the police captains are not

bona fide executives for the purposes of the FLSA because

they were subject to pay reductions for disciplinary infractions

relating to the “quality or quantity” of their work. The City of

Memphis Civil Service Rules’ provide that if a Memphis

employee commits a violation of the rules, the employee is

subject to several disciplinary actions, including “unpaid

suspension of a duration as short as one day.” Although these

rules theoretically apply to all Memphis employees, there is no

rule that specifically provides that police captains are subject

to suspensions. Only one captain--not a plaintiff in this case--

has ever been suspended without pay for disciplinary reasons.

* “Penalties imposed for safety rules of major significance will not affect

the employee’s salaried status.” 29 C.F.R. § 541.118(a)(5). Defendant

apparently concedes that some of the rules in question are not “safety rules

of major significance.”

In Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137

L.Ed.2d 79 (1997), a case with facts virtually identical to

those in the case before us, the Supreme Court considered

whether “an employee's pay is ‘subject to” disciplinary or

other deductions whenever there exists a theoretical possibility

of such deductions, or rather only when there is something

more to suggest that the employee is actually vulnerable to

having his pay reduced.” Id. at 459, 117 S.Ct. 905. The Auer

plaintiffs, several sergeants and a lieutenant, along with all

other St. Louis police department employees, were nominally

covered by a police manual that listed 58 possible rules

violations and also listed several possible penalties associated

with each, including, in some instances, deductions in pay.

The Court held that the plaintiffs were nevertheless salaried

employees under the salary-basis test. Deferring to the

Secretary of Labor’s interpretation of the FLSA, the Court

wrote that employees are denied exempt status under the test

only when “employees are covered by a policy that permits

disciplinary or other deductions in pay ‘as a practical matter.”

“ Id. at 461, 117 S.Ct. 905 (emphasis added). This is so when

the employer has either (1) “an actual practice of making such

deductions,” or (2) “an employment policy that creates a

significant likelihood of such deductions.” Id. (internal

quotations omitted). A “one-time deduction in a sergeant’s

pay, under unusual circumstances,” was not sufficient to

establish the former. Id. at 462, 117 S.Ct. 905. A manual that

applied to all department employees, and thus that did not

“effectively communicate that pay deductions are an

anticipated form of punishment for employees in petitioners’

category,” did not establish the latter. Id. The Court

concluded that Its holding was the most sensible, since it

“avoids the imposition of massive and unanticipated overtime

liability (including the possibility of substantial liquidated

damages) in situations in which a vague or broadly worded

policy is nominally applicable to a whole range of employees

but is not ‘significantly likely’ to be invoked against salaried

employees.” Id. at 461, 117 S.Ct. 905.

In this case, there is nothing to indicate that Memphis

police captains are anything other than salaried employees. 6

They may be theoretically subject to pay reductions, but as a

“practical matter” they are not. The evidence shows that only

one captain ever faced a deduction in pay. Thus, plaintiffs

cannot demonstrate an actual practice of applying such

deductions to captains. By plaintiffs’ own admission, the Civil

Service rules apply to all department employees. Thus, the

policy does not effectively communicate that captains will be

suspended in any specified circumstance. Again, we conclude

that the district court did not err.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgments

of the district court.

'° On facts virtually identical to the ones here, several courts have followed

Auer. See, e.g., West v. Anne Arundel County, 137 F.3d 752, 762-63 (4th

Cir.1998); Childers v. City of Eugene, 120 F.3d 944, 947 (9th Cir.1997);

Stanley v. City of Tracy, 120 F.3d 179, 183-84 (9th Cir.1997); Ahern v.

County of Nassau, 118 F.3d 118, 121 (2nd Cir.1997); Carpenter v. City of

Denver, 115 F.3d 765, 767 (10th Cir.1997); Balgowan vy. New Jersey, 115

F.3d 214, 219 (3d Cir. 1997); DiGiore v. Ryan, 987 F.Supp. 1045, 1052

(N.D.111.1997).

CONCURRING/DISSENTING OPINION

RYAN, Circuit Judge, concurring in part and dissenting in

part.

In my view, neither the district court nor the majority

here come squarely to grips with the plaintiffs’ claim that they

are, on some occasions, being denied compensatory time off

for reasons forbidden under the Fair Labor Standards Act and

its implementing regulations. The result, in my judgment, is

that the plaintiffs continue to be denied relief to which they are

entitled.

The parties agree that 29 U.S.C. § 207(0)(5)(B) assures

that, in this case, an officer

shall be permitted by the employee’s employer

to use [comp] time within a reasonable period

after making the request if the use of the

compensatory time does not unduly disrupt the

operations of the public agency.

Thus, under this subsection there are two conditions

precedent that must be satisfied before an employee may take

comp time off: (1) the employee must be permitted to take the

comp time within a reasonable period of time after making his

request; and (2) taking the comp time must not unduly disrupt

the operations of the Memphis Police Department.

One of the implementing regulations adopted by the

Department of Labor provides that

[t]o the extent that the conditions under which

an employee can take compensatory time off

are contained in an agreement or understanding

... the terms of such agreement or

understanding will govern the meaning of

“reasonable period.”

29 C.F.R. § 553.25(c)(2).

The parties agree that there is a collective bargaining

agreement in place between them. Unfortunately, the

agreement, the foregoing agency regulation notwithstanding,

does not define the term reasonable period. However, a

Department of Labor regulation does define reasonable period

as follows:

to use compensatory time has been granted

within a “reasonable period” will be

determined by considering the customary work

practices within the agency based on the facts

and circumstances in each case. Such practices

include, but are not limited to (a) the normal

schedule of work, (b) anticipated peak

workloads based on past experience, (Cc)

emergency requirements for staff and services,

and (d) the availability of qualified substitute

staff.

29 C.F.R. § 553.25(c)(1).

The regulation also defines the expression unduly

disrupt as follows:

(d) Unduly Disrupt. When an employer

receives a request for compensatory time off, it

shall be honored unless to do so would be

“unduly disruptive” to the agency’s operations.

Mere inconvenience to the employer is an

insufficient basis for denial of a request for

compensatory time off. (See H. Rep. 99-331, p.

23.) For an agency to turn down a request from

an employee for compensatory time off

requires that it should reasonably and in good

faith anticipate that it would impose an

unreasonable burden on the agency’s ability to

provide services of acceptable quality and

quantity for the public during the time

requested without the use of the employee’s

services. |

29 C.F.R. § 553.25(d).

The plaintiffs concede that the defendant's precinct

commanders may properly reserve to themselves the authority

to determine when the logbooks are “full,” so that the

“manning” in the precinct will not fall below necessary levels

and thus unduly disrupt the operation of the police department.

The plaintiffs insist, however, that the precinct commanders

are declaring the logbook full, not when there is a risk of

manpower falling below what is necessary for the public

safety, but rather when the number of officers requesting

comp time off reaches the point that it will be necessary to pay

their replacement officers at the overtime rate of pay. That

excuse for declaring the logbook full, the plaintiffs argue, is

not permitted under the FLSA, or the Labor Department

regulations, or the collective bargaining agreement between

the parties, because paying a replacement officer at the

overtime rate does not unduly disrupt the operation of the

police department as that term is defined in 29 C.F.R. §

553.25(d) and has nothing whatever to do with the “reasonable

period” within which the comp time may be used following a

request for it. In addition, the plaintiffs point to Department of

Labor commentary on the application of the FLSA which

provides: The Department [of Labor] recognizes that

situations may arise in which overtime may be required of one

employee to permit another employee to use compensatory

time off. However, such a situation, in and of itself, would not

be sufficient for an employer to claim that it is unduly

disruptive.

Application of the Fair Labor Standards {ct to Employees of

State and Local Governments, 52, Fed.Reg.2012, 2017 (1987).

To the same effect, argue the plaintiffs, is an Eighth

Circuit decision in Heaton v. Moore, 43 F.3d 1176, 1181 (8th

Cir.1994), which holds that the fact that an employer must pay

an employee overtime compensation in order to permit

another employee to use accrued compensatory time off, does

not, of itself, constitute an undue disruption allowing the

employer to deny the request.

The defendant acknowledges that it has a policy of not

permitting comp time to be taken if it would require the

department to bring in a replacement officer at the overtime

rate of pay. Plaintiffs claim that more often than not it is the

application of this policy, forbidden by the federal regulations,

that the precinct commanders employ to declare the logbooks

full.

The district court failed to come to grips with this

argument, stating only that “the City could have allowed the

officer the time off by paying another officer overtime

compensation to work in the requesting officer’s place [,but]

[a]s general policy, the Division declined to call in officers on

an overtime basis in order to permit another officer off for

compensatory time.” Aiken v. City of Memphis, 985 F.Supp.

740, 745 (W.D.Tenn.1997). The district court then observed

that a denial of compensatory time off for that reason “only

occurred occasionally and was not routine.” Id. The plaintiffs

claim it occurs all the time.

Instead of resolving this difficult, mixed question of

fact and law, the district court merely held, as the majority

opinion in this court does, that the entire issue is governed by

the collective bargaining agreem ~nt between the parties, and

the collective bargaining agreement has a provision as to the

reasonable period within which time off may be requested.

The district court’s reasoning, although to me rather abstruse,

apparently is that if an officer doesn’t make a request for comp

time early enough to assure that his replacement need not be

paid time-and-a-half, then the officer will not have requested

his time off within a reasonable period. The problem, of

course, with that sort of reasoning is that it conflates the

concept of the reasonable period within which the day off

must be requested, and whether it is an undue disruption of the

police department’s operations to permit the time off to be

taken. Thus, the plaintiffs’ claim that the logbook is being

declared full for a forbidden reason is never directly engaged.

The majority opinion likewise dodges the problem,

simply by declaring that the whole issue is governed by the

collective bargaining agreement, and the majority is “loath to

interfere with [the] agreement.”

To me, that answer, like the district court’s answer, is

no answer at all. The district court made a factual finding that

“fa]s a general policy, the Division declined to call in officers

on an overtime basis in order to permit another officer off for

compensatory time.” Aiken, 985 F.Supp. at 745, In my

opinion, this policy is precisely the practice the Department of

Labor contemplated, and sought to forbid, when it declared

that it would not be an undue disruption for an employer to

ask one employee to work overtime in order to grant another

employee time off. See Application of the Fair Labor

Standards Act to Employees of State and Local Governments

52 C.F.R.2012, 2017 (1987). 1 would reverse the judgment of

the district court with respect to this issue only. As to the

remaining issues in the case, I concur in the majority opinion.

William Russell AIKEN, et al., Plaintiffs,

ciTy OF MEMPHIS, TENNESSEE, Defendant.

No. 93-2023-TUA.

United States District Court,

W.D. Tennessee,

Western Division.

Aug. 26, 1997.

CONSENT ORDER OF DISMISSAL OF CLAIMS

TURNER, District Judge.

The parties, through counsel, having advised the Court

that the parties have reached a settlement with respect to

Plaintiffs’ claim for unpaid compensation for the home

training, maintenance and care of police dogs and training

time, and that those claims may be dismissed,

IT IS, THEREFORE, ORDERED that Plaintiffs’

claims for unpaid compensation for home training,

maintenance and care of police dogs and training time be and

are hereby dismissed.

So ordered this 26th day of August, 1997.

William Russell AIKEN, et al., Plaintiffs,

CITY OF MEMPHIS, TENNESSEE, Defendant.

No. 93-2023-TUA.

United States District Court,

W.D. Tennessee,

Western Division.

Aug. 8, 1997.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TURNER, District Judge.

Plaintiffs, employees of the Memphis Police Services

Division, filed this class action on January 7, 1993, alleging

that the City of Memphis (the “City”) had violated the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., by

failing to pay them overtime wages. By order entered January

2, 1996, this court granted defendant’s motion for partial

summary judgment on issues relating to travel time and the

“Location When III” Policy. On November 25, 1996, the

parties submitted the case to the court on trial memoranda,

stipulations, and exhibits for a final determination of the

remaining claims. Currently befcre this court are four issues:

(1) whether the City’s classification of police captains as

exempt from overtime requirements is correct; (2) whether

officers are entitled to compensation for time spent

commuting to or from work in a police vehicle; (3) whether

officers are entitled to compensation for time spent cleaning

and maintaining police vehicles; and (4) whether the City’s

compensatory time policy is violative of the FLSA. The

parties have reserved the issue of damages until liability has

been determined.

I. General Findings of Fact

The City’s law enforcement services are provided by

the City of Memphis Police Services Division (the

“Division”). The plaintiffs are or have been employees of the

City and more particularly the Division. The City is a political

subdivision of the State of Tennessee and a public agency

within the meaning of 29 U.S.C. § 203(x). The City is also an

enterprise within the meaning of 29 U.S.C. § 203(r).

II. Exempt Status of Captains

A. Findings of Fact

[1] The City does not pay overtime compensation to

police captains because the City has classified them as salaried

employees. Under the City’s policies police officers, including

captains, are subject to disciplinary suspensions without pay

for periods of less than one day. No captain has ever been

disciplined by receiving a suspension without pay.

B. Conclusions of Law

[2] The captain plaintiffs claim that the City

wrongfully classified them as employees exempt from the

overtime requirements of the FLSA. Under the FLSA,

employers are not required to pay overtime compensation to

“bona fide executives” who exceed the maximum work hours

per week. 29 U.S.C. § 213(a)(1). The FLSA authorizes the

Secretary of Labor to promulgate regulations defining bona

fide executive. These regulations require an employee to have

supervisory duties and be paid on a salary basis in order to be

a bona fide executive. 29 C.F.R. § 541.1(f) & 541.117(a). The

“paid on salary basis” component means that an employee is

paid a set amount per pay period regardless of the number of

hours worked rather than on an hourly basis:

[U]nder his employment agreement [the

employee] regularly receives each pay period

on a weekly, or less frequent basis, a

predetermined amount constituting all or part

of his compensation, which amount is not

subject to reduction because of variations in the

quality or quantity of the work performed.

29 C.F.R. § 541.118(a). An exception to this rule is made for

deductions taken when an employee is absent for a period of

more than a day due to either personal reasons or sickness if

the deduction follows a disability plan. 29 C.F.R. §

541.118(a)(2) & (3). The Department of Labor has specifically

stated that this exception does not apply to absences of less

than one day. U.S. Department of Labor, Wage and Hour

Division, Letter Ruling of January 15, 1986. The City argues

that even though the captains may be literally subject to a

suspension without pay for less than one day, “the realities of

the City’s compensation scheme” should not be ignored and

the captain plaintiffs should be treated as salaried employees.

say UBM iia a a a ti

(Def.’s Proposed Findings of Fact and Conclusions of Law at

16.) The employer bears the burden of proving that an

employee falls within the exemption. Corning Glass Works v.

Brennan, 417 U.S. 188, 196-97, 94 §.Ct. 2223, 2229, 41

L.Ed.2d 1 (1974).

The Supreme Court recently considered this issue in

Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79

(1997). Auer involved a suit brought by sergeants and a

lieutenant of the St. Louis Police Department. The plaintiffs

claimed that they had been unfairly denied overtime

compensation because they were wrongly classified as exempt

employees. The plaintiffs contended that they did not met the

“salary-basis test” for exempt employees because a provision

in the St. Louis Metropolitan Police Department Manual

subjected them, and other ranks of police officers, to

reductions in pay for disciplinary infractions relating to the

quality or quantity of work they performed. Only one sergeant

had ever had his pay reduced for a disciplinary infraction.

The Secretary of Labor filed an amicus brief

explaining that the salary-basis test delineated in the

regulations is met when “there is either an actual practice of

making [deductions in pay for disciplinary infractions] or an

employment policy that creates a ‘significant likelihood’ of

such deductions.” Id. at ----, 117 S.Ct. at 910. The Court

deferred to the Secretary’s interpretation of this regulation

because it found his interpretation not to be clearly erroneous

or inconsistent with the regulation. Id. at ----, 117 S.Ct. at 911;

see also Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989).

The Court found that the lieutenant and sergeants were not

significantly likely to be subject to such deductions. Id. The

police manual covered all department employees and could be

interpreted as subjecting only those employees who were not

paid on a salary basis to disciplinary deductions:

If the statement of available penalties

applied solely to petitioners, matters would be

different; but since it applies both to petitioners

and to employees who are unquestionably not

paid on a salary basis, the expressed

Te ee ern a

availability of disciplinary deductions may

have reference only to the latter. No clear

inference can be drawn as to the likelihood of a

sanction’s being applied to employees such as

petitioners.

Id. at ----, 117 S.Ct. at 911. The Court then affirmed the Court

of Appeal’s determination that the employees had met the

salary-basis test and were exempt from the overtime pay

provisions of the FLSA.

The present case is closely analogous to Auer. No

captain in the Memphis Police Department has ever been

subjected to disciplinary deductions in his pay. The policy

applies to police employees, other than captains, who are

unquestionably not salary-based employees. This court is

bound to follow the Supreme Court’s determinations, and

therefore finds that the salary-basis test is met and that the

captain plaintiffs are exempt from the overtime provisions of

the FLSA.

III. Commute Time

A. Findings of Fact

Plaintiffs also claim that the City violated the FLSA by

failing to compensate them for time spent commuting to or

from work in police vehicles. The parties have stipulated that

the City provides vehicles for some officers to use in

commuting to and from work. These officers are requested to

keep the radios on in the vehicles during their commutes.

Additionally, an officer in such a vehicle is required to take

appropriate law enforcement action if they encounter a

disabled vehicle or observe a crime being committed during

their commute. The officers are aware of the requirements to

which they must adhere if they take a vehicle home. The use

of these vehicles is strictly voluntary.

B. Conclusions of Law

In August of 1996, Congress passed the Employee

Commuting Flexibility Act (“ECFA”), which amends the

Portal-to-Portal Act, 29 U.S.C. § 254(a). The ECFA applies to

any litigation pending but not decided at the time of the

enactment of the ECFA. The ECFA specifically provides:

Except as provided in subsection (b), no

employer shall be subject to any liability or

punishment under the Fair Labor Standards Act

of 1938, ... on account of the failure of such

employer to pay an employee minimum wages,

or to pay an employee overtime compensation,

for or on account of any of the following

activities of such employee engaged in on or

after the date of the enactment of this Act—

(1) walking, riding, or traveling to and

from the actual place of performance of

the principal activity or activities which

such employee is employed to perform,

and *744

(2) activities which are preliminary to

or postliminary to said principal activity

or activities,

which occur either prior to the time on any

particular workday at which such employee

commences, or subsequent to the time on any

particular workday at which he ceases, such

principal activity or activities.

In the application of the minimum wage and

overtime compensation provisions of the Fair

Labor Standards Act of 1938, ... in

determining the time for which an employer

employs an employee with respect to walking,

riding, traveling, or other preliminary or

postliminary activities described in subsection

(a) of this section, there shall be counted all

that time, but only that time, during which the

employee engages in any such activity which is

compensable within the meaning of subsections

(b) and (c) of this section.

29 U.S.C. § 254. Based on this statute, plaintiffs concede that

the City is not required to compensate officers for commuting

time if the City can establish that it has an agreement with its

employees with respect to the use of the vehicle. (Pl.’s Trial

Mem. at 29.) This agreement requirement may be satisfied

through “a formal written agreement between the employee

and employer, a collective bargaining agreement between the

employees [sic] representative and the employer, or an

understanding based on established industry or company

practices.” H.R.Rep. No. 104-585 (1996).

Here, the employees have an understanding based on

the City’s practices regarding the use of the vehicle. This

understanding is sufficient to meet the agreement requirement

under the ECFA. Therefore, the City is not required to

compensate officers for time commuting in police vehicles.

IV. Vehicle Maintenance

A. Findings of Fact

Officers taking the City vehicles home are also

required to maintain these vehicles and to keep them clean. As

to the maintenance of the vehicles, the parties have offered

conflicting versions of the facts. The plaintiffs’ claim that the

officers are required to perform minor maintenance on their

vehicles. The City, on the other hand, states that it has a

contract with local facilities to perform the maintenance at the

City’s expense and that the officers are merely required to

schedule that maintenance. The stipulations of the parties

submitted to this court do not resolve this conflict. The parties

have stipulated what maintenance must be done, how long that

maintenance would take, and that the City maintains a contract

with a local motorcycle shop to perform maintenance on the

motorcycles. (Stipulations at 2.) However, the employee bears

the burden of proving that he has performed work for which

he should have been compensated but was not. Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187,

1192, 90 L.Ed. 1515 (1946). Because the officers have failed

to submit proof that they must perform the maintenance

themselves, this court finds that the officers are only required

to schedule the maintenance.

B. Conclusions of Law

Whether the City is required to compensate the officers

for maintaining and cleaning their vehicles is also governed by

the ECFA. If that activity is “incidental to the use of an

employer-provided vehicle for commuting,” it is not

compensable. 29 U.S.C. § 254. The House Report

accompanying the ECFA states that “[i]t is not possible to

define in all circumstances what specific tasks and activities

would be considered ‘incidental’ to the use of an employers

[sic] vehicle for commuting.... [RJoutine vehicle safety

inspections or other minor tasks have long been considered

preliminary or postliminary activities and are therefore not

compensable.” H.R.Rep. No. 104-585 (1996).

The officers bear the burden of proving that the City

has violated the FLSA by not compensating them for work

they have performed. Anderson, 328 U.S. at 687, 66 S.Ct. at

1192. They have not submitted any evidence to establish that

requiring the officers to maintain their vehicles in a clean

condition is other than a minor task considered incidental, and

therefore noncompensable, under the ECFA. Keeping one’s

vehicle clean is no more arduous than routine safety

inspections. Since no proof has been offered to the contrary,

the officers have failed to carry their burden of establishing

that this time is compensable under the FLSA.

Further, this court finds that plaintiffs have failed to

establish that they are required to perform any maintenance on

the City vehicles which they take home. Additionally, the

scheduling of maintenance on the vehicles is a minor task

incidental to the use of the vehicle and not compensable under

the FLSA.

V. Compensatory Time

A. Findings of Fact

The officers have also claimed that the City’s

compensatory time plan violates the FLSA. The City allows

officers who work in excess of forty-three hours per week to

receive either monetary compensation at a rate of one and one-

half times the employee’s hourly rate or compensation in the

form of time off at a rate of one and one-half hours for each

hour worked in excess of forty-three.’ When an employee

wants to use the compensatory time he has earned, he must

sign his name in a “logbook” and receive permission from his

supervisor. An employee can place a request to use his

compensatory time beginning thirty days before the requested

time until the day he wants off. Once enough people have

signed up to be off on a particular day such that the supervisor

determines the department cannot effectively function with

any more people off, the supervisor will indicate in the

logbook that no one else may sign up to have compensatory

time off on that day. The number of people allowed to sign up

on a particular day varies with department and day. The

parties have stipulated that compensatory time off is often

' The compensatory time plan allows officers to accumulate time up to a

maximum of 480 hours. Once an officer reaches this maximum, he must

take monetary compensation for overtime hours. If an employee separates

from the city, he is entitled to cash payment for accumulated but unused

compensatory time. These elements are also required by the FLSA, but are

not at issue in this case. See 29 U.S.C. s 207(0).

granted when requested, but that officers have been denied

requested time off when others want the same day off. On

most occasions when an officer has requested compensatory

time off but been denied that time because others had

previously requested it, the City could have allowed the

officer the time off by paying another officer overtime

compensation to work in the requesting officer’s place. As a

general policy, the Division declined to call in officers on an

overtime basis in order to permit another officer off for

compensatory time. A denial of compensatory time off,

however, only occurred occasionally and was not routine.

Additionally, an officer’s request to have a day off may be

granted and later rescinded if, due to sickness or injury, the

department does not have enough officers to operate safely

and effectively.

Plaintiffs claim that this plan violates the FLSA

because they are not always able to take the compensatory

time off when they request it even though the City could grant

their requests by paying other officers at an overtime rate. The

City asserts that the requirement that the officer sign up for

compensatory time before the log is full is merely the

understanding or practice of the parties as to the “reasonable

period” within which to request time off (i.e., if an officer did

not request time off before the log was full, he did not request

time off within a reasonable period of time).

B. Conclusions of Law

The FLSA allows public agencies to compensate their

employees with compensatory time off at a rate of not less that

one and one-half hours for each hour of employment for

which overtime is required, provided that the agency follows

certai.1 criteria delineated in 29 U.S.C. § 207(0). The only

criterion that plaintiffs claim the City does not meet is that an

employee who has accrued compensatory time “shall be

permitted to use such time within a reasonable period after

making the request if the use of the compensatory time does

not unduly disrupt the operations of the agency.” 29 U.S.C. § :

207(0) (5). The statute does not define what constitutes an

“undue disruption” or a “reasonable period.”

In Heaton v. Moore, 43 F.3d 1176 (8th Cir.1994), the

Eighth Circuit considered whether having to pay overtime

compensation constitutes an undue disruption. In Heaton, the

Department of Corrections for the State of Missouri had a

policy of forcing employees to use their compensatory time.

The Department of Corrections claimed that this policy was

necessary to thwart the undue disruption that would result if it

later had to pay overtime to its employees if they had

accumulated more than 480 hours. The Eighth Circuit held

that the unduly disruptive language was only important if the

employee had requested to use compensatory time and the

request had been denied. Id. at 1181. The court went on to say,

arguably in dictum, that “the eventual payment of overtime

compensation as mandated by the FLSA cannot be deemed

‘unduly disruptive’ of the DOC’s operation.” Id. The court

also explained that the employer has control over this situation

from the front-end: “Employers are free to schedule less

overtime and/or hire more corrections officers to reduce the

need for compensatory time. As we have previously observed,

‘[a] fundamental purpose of the Fair Labor Standards Act was

to encourage employers to distribute work among a larger

number of employees rather than to work employees

overtime.’” Id. (citing Marshall v. Hamburg Shirt Corp., 577

F.2d 444, 446 (8th Cir.1978)); see also Walling v.

Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 423-24,

65 S.Ct. 1242, 1244-45, 89 L.Ed. 1705 (1945) (explaining the

purpose of the FLSA overtime provision); Overnight Motor

Transp. Co. v. Missel, 316 U.S. 572, 577-78, 62 S.Ct. 1216,

1219-20, 86 L.Ed. 1682 (1942) (also explaining the purpose of

the FLSA overtime provisions).

This court agrees with the Eighth Circuit that the

necessity of paying overtime compensation does not constitute

an undue disruption within the meaning of the FLSA. The

Division, however, argues that its policy of not allowing

compensatory time off once the logbook is full merely

requires requests to be made within a reasonable period.

“Reasonable period” is defined in the Department of

Labor Regulations:

request to use compensatory time has been

granted within a “reasonable period” will be

determined by considering the customary work

practices within the agency based on the facts

and circumstances in each case. Such practices

include, but are not limited to (a) the normal

schedule of work, (b) anticipated peak

workloads based on past experience, (c)

emergency requirements for staff and services,

and (d) the availability of qualified substitute

staff.

(2) The use of compensatory time in

lieu of cash payment for overtime must be

pursuant to some form of agreement or

understanding between the employer and the

employee (or the representative of the

employee) reached prior to the performance of

the work.... To the extent that the conditions

under which an employee can take

compensatory time off are contained in an

agreement or understanding as defined in §

553.23, the terms of such agreement or

understanding will govern the meaning of

“reasonable period”.

29 C.F.R. § 553.25. The Memoranda of Understanding

between the City and the plaintiffs provides that compensatory

time off will be given through the use of the logbook. Once

the slots in the logbook are full, an employee would be denied

compensatory time off unless an emergency existed or a

substitute was found. This agreement is the type contemplated

in the Department of Labor Regulations and therefore governs

the meaning of “reasonable period” in this context. Thus, the

plaintiffs were allowed compensatory time off when it was

requested within a reasonable time and the City’s policy to

this effect does not violate the FLSA.

VI. Conclusion

This court holds that the captain plaintiffs are salaried

employees within the meaning of the FLSA, and are therefore

exempt from its overtime provision. The police officers are

not entitled to compensation for time spent commuting to and

from work in police vehicles or for time spent keeping these

vehicles clean or scheduling their maintenance. Finally, the

City’s compensatory time policy is not violative of the FLSA

because City employees who have earned compensatory time

are able to use this time when it is requested within a

reasonable period. |

On the issues addressed herein, a judgment of }

dismissal shall be entered for the defendants.

At the pretrial conference when the issues herein

addressed were submitted to the court, counsel indicated that

certain other issues had been resolved through compromise.

No order to that effect has been submitted. Counsel should

provide the court with the appropriate order within ten days

following entry of these Findings of Fact and Conclusions of

Law.

IT IS SO ORDERED this 8th day of August, 1997.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

WILLIAM RUSSELL AIKEN, et al.,

V. NO. 93-2023-TUA

CITY OF MEMPHIS, TENNESSEE

Defendant.

ORDER ON DEFENDANT’S MOTION FOR PARTIAL

SUMMARY JUDGMENT

Employees of the Memphis Police Services Division

filed this claim on January 7, 1993, under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., alleging that

the City of Memphis had failed to pay them overtime wages in

violation of the FLSA. Plaintiffs’ class was initially comprised

of 390 persons; however, that number has subsequently

decreased to 365 persons.

Plaintiffs have set forth seven specific allegations

under the FLSA:

(1) Plaintiffs are entitled to overtime compensation

for time they were confined to their homes under defendant’ s

sick leave or “Location When III” Policy;

(2) Plaintiffs are entitled to overtime compensation

as a result of shift scheduling;

(3) Plaintiffs are entitled to overtime compensation

for time spent in training;

(4) Plaintiffs are entitled to overtime compensation

for time spent caring for and transporting canines;

(5) Plaintiffs are entitled to overtime compensation

relating to a vehicle provided by defendant and travel time:

(6) Plaintiffs are entitled to overtime compensation

for defendant’s alleged refusal to allow plaintiffs to use their

accumulated compensatory time; and

(7) Plaintiffs are entitled to overtime compensation

because they were improperly classified as exempt under the

FLSA.

Defendant has moved for summary judgment on plaintiffs’

claims numbers 1, 2, ae and 7. After consideration of

defendant’s motion for summary judgment, plaintiffs have

agreed to voluntarily dismiss their claims for overtime

compensation based on shift scheduling (claim #2) and

exemption (claim #7) with respect to plaintiffs Friedman,

Ruff, Reynolds and Crawford. Therefore, the allegations

before the court on the summary judgment motion are claims

1, 3, and 4.

SUBSTANTIVE LAW

1. Summary Judgment Standard

The moving party is entitled to summary judgment

where there is no genuine issue of material fact and the party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). When considering a motion for summary judgment, the

court’s function is not to weigh the evidence or judge its truth;

rather, the court must determine whether there is a genuine

issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 7

(1986). Summary judgment is “properly regarded not as a

disfavored procedural shortcut, but rather as an integral part of

the Federal Rules ... designed ‘to secure the just, speedy and

inexpensive determination of every action.”” Celotex Corp. v.

Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

The substantive law governing the case will determine what

issues of fact are material. Street v. J.C. Bradford & Co., 886

F.2d 1472, 1479 (6th Cir. 1989).

A summary judgment movant “bears the burden of

clearly and convincingly establishing the nonexistence of any

genuine issue of material fact and the evidence as well as all

inferences drawn therefrom must be read in a light most

favorable to the party opposing the motion.” Kochins v.

Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986).

Once that burden is met, it shifts to the non-moving party to

set forth specific facts showing a genuine issue of triable fact.

Fed. R. Civ. P. 56(e). To meet this burden, the non-movant

must do more than present some evidence that there is a

disputed issue. Rather, the non-movant must present sufficient

admissible evidence upon which a jury could return a verdict

favorable to the non-moving party. Anderson, 477 U.S. at 249-

50. Where a disputed issue of material fact is presented by

countervailing admissible evidence, the non-movant’s version

of such fact is presumed correct. Eastman Kodak Co. v. Image

Technical Services, Inc., 504 U.S. 451, 456 (1992).

zy Fair Labor Standards Act

The FLSA was enacted in 1938 to “achieve a uniform

national policy of guaranteeing compensation for all work or

employment engaged in by employees covered by the Act.”

Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123,

321 U.S. 590, 602 (1944); see also Barrentine v. Arkansas-

Best Freight Sys., Inc., 450 U.S. 728, 39 (1981) (FLSA

enacted to ensure each employee covered by the Act receives

a “fair day’s pay for a fair day’s work’) (quoting Overnight

Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1937). In

1974, Congress extended the FLSA to apply to state and local

governmental bodies in addition to the federal government. 29

U.S.C. § 203(d) & (x). The FLSA requires that employees

who perform more than forty “hours worked” within their

regular workweek be compensated at time and one-half the

“regular rate of pay” for those additional hours. 29 U.S.C. §§

207(a) (1). Because defendant is a political subdivision of the

State of Tennessee, it is subject to the regulations set forth

within the FLSA.

Although the FLSA clearly requires the payment of

overtime wages for overtime worked, it does not set forth

exactly what “type” of work is eligible for such overtime pay.

See Reich v. New York City Transit Auth., 45 F.3d 646, 648

(2d Cir. 1995) (“While Congress made clear that employers

are required to compensate employees for ‘work’ or

‘employment,’ it did not define the contours of the type of

‘work’ or ‘employment’ that merited such compensation.”).

The instant case is a dispute regarding whether various

activities performed by employees are compensable under the

FLSA. Although the Portal to Portal Act, which amended the

FLSA in 1947, 29 U.S.C. § 251, et seq., was an attempt by

Congress to “delineate certain activities which did not

constitute work, and therefore did not require compensation,”

the Act did not resolve all potential issues under the FLSA.

Thus, the matter before the court requires interpreting the

contours of coverage under the FLSA with respect to the

particular circumstances presented in this case.

A. Location When Iil Policy

i. Factual Context

Plaintiffs have filed a claim for overtime compensation

for hours spent at home, beyond the eight hour work day, in

compliance with the defendant’s “Location When Ill Policy

(“LWI Policy”). Defendant’s LWI Policy regulates the

activities of employees who are on either sick leave or leave

for on-the-job injuries. This policy, contained in Rule DR

1104 of Police Department Regulations, provides in relevant

part:

A member reporting sick or injured shall be confined

to his or her residence, clinic, or hospital, except to visit his or

her personal physician or by permission of his or her

supervisor. .

6 After this lawsuit was filed defendant amended DR 1104 to require an

employee on sick or on-the-job injury leave to only remain at home during

the eight hour block of time that would normally constitute his regular

work day.

The gravamen of plaintiffs’ complaint is that defendant’s LWI

| Policy so constrained their activities while on sick or injury

leave that those hours spent confined in their homes should be

calculated as overtime worked.’ Because plaintiffs could not

leave their homes without defendant’s permission, which

plaintiffs assert was denied as a matter of practice, they argue

that they were “on call” to defendants and that such “on call”

time is generally considered overtime when it seriously

restricts an employee’s activities. Plaintiffs argue that the

severity of the restrictions entitle them to overtime

compensation under the FLSA.

Plaintiffs allege that when they were on sick or job

injury leave, they were confined to their residences twenty-

four hours per day on each day that such leave was taken, and

on the weekends surrounding those leave days. According to

° Plaintiffs are not requesting compensation for the eight hours per day that

they spent asleep, or the forty hours per week for which they have already

been paid.

plaintiffs, defendant’s LWI Policy prohibited employees from

engaging in any personal activity outside of their home during

the entire twenty-four hour period for which they had taken

leave. Such restrictions allegedly applied irrespective of the

particular nature of the individual employee’s ailments or

illnesses; therefore, if an employee had broken his leg and was

unable to perform police duties but was well enough to visit

friends or engage in other activities, that employee was still

confined to his home for the duration of his leave time.

The practical import of the LWI Policy, plaintiffs

contend, was that plaintiffs were only allowed to leave their

homes to obtain medical care, and even then they had to have

the permission of their supervisors. Defendant did enforce the

policy by making repeated telephone calls to employees that

were home sick without regard to the normal work hours of

the sick employee. Further, defendant also apparently

encouraged the use of in-person checks in which supervisors

would go to the residences of employees on sick leave and

verify that they had not left their homes.

Plaintiffs contend that they should be compensated for

those hours confined under the LWI Policy because defendant

derived a clear benefit from the policy by curtailing potential

abuse of sick leave and ensuring that its employees were ready

at all times to respond to city emergencies. Employees that :

were found in violation of the policy were issued reprimands

and suspensions without pay. The defendant contends that the

rule was enforced as written -- that is, that the officers merely

needed to request permission to leave home. Therefore,

defendant asserts that the restrictions cannot be found to be

severe and onerous.

il. Applicable Law

The Supreme Court has consistently held that under

certain circumstances, waiting time, stand-by time and on-call

time are compensable under the FLSA. Skidmore v. Swift &

Co., 323 U.S. 134 (1944); Armour & Co. v. Wantock, 323

U.S. 126 (1944). The basic litmus test for whether such on-call

time is compensable is whether “the restrictions imposed are

SO onerous as to prevent employees from effectively using the

time for personal pursuits.’ Martin v.Ohio Turnpike Comm’n,

968 F.2d 606, 611 (6th Cir. 1992), cert denied, US.

113 S. Ct. 979 (1993). This test “requires consideration of the

agreement between the parties, the nature and extent of the

restrictions, the relationship between the services rendered and

the on-call time, and all surrounding circumstances.” Boehm

v. Kansas City Power & Light Co., 868 F.2d 1182, 1185

(citing Skidmore, 323 U.S. at 137). Courts look to the

particular factual circumstances of each case in order to

determine whether or not the on-call time in question should

be compensable, Id.

Some courts have distinguished between employees

who are “waiting to be engaged” and those that are “engaged

to be waiting” to determine whether overtime compensation is

warranted. See e.g., Halferty v. Pulse Drug Co. Inc., 864 F.2d

1185, 1189 (Sth Cir. 1989). The distinction is that when idle

time is spent predominantly for the benefit of the employer,

the employee is engaged to be waiting, while if the idle time is

spent for the benefit of the employee, the employee is waiting

to be engaged. Id. Those courts that recognize the distinction

have determined that when the employee is engaged to be

waiting, he should be entitled to compensation, but if he is

waiting to be engaged, he should only be paid for time

actually worked. Id. Therefore, once again the critical issue in

deciding whether an employee should be compensated is

whether that employee can use the time effectively for his or

her own purposes. Id. If employees can visit friends, pursue

hobbies, watch television, eat and sleep and engage in like

activities, they are generally considered to be free to use the

time for their personal benefit. See Allen v. Atlantic Richfield,

724 F.2d 1131 (Sth Cir. 1984) (on-call time not compensable

where workers had to remain at plant twenty-four hours a day

and work twelve hours while the other twelve they were free

to sleep, eat at no expense, watch movies, play pool or cards,

exercise, read, or listen to music); Norton v. Worthen Van

Serv., Inc., 839 F.2d 653, 655-56 (10th Cir. 1988) (Time spent

by drivers waiting “on call” not compensable under FLSA

because drivers were not required to remain on or near

employer’s premises while on call, and could pursue personal

business between assignments); Pilkenton v. Appalachian

Regional Hosps., Inc., 336 F. Supp 334, 336 (W.D. Va. 1971)

(on-call time not compensable because time spent by plaintiffs

on call was predominantly for their own benefit and not their

employers).

In Martin, the Sixth Circuit held that the court must

examine the restrictions placed on the employee to determine

this issue. “[T]he employees must show that the on-call policy

imposes additional burdens [than Just being on call] that

seriously interfere with their ability to use the time for

personal pursuits.” 968 F.2d at 611.

Here, defendant’s LWI Policy certainly restricted the

activities of its employees to some extent because employees

were confined to their homes during sick or Job injury leave

unless they had permission to leave home. Although

employees were permitted to eat, sleep, watch television, or

engage in any activity inside of their home, they were

prohibited from visiting friends or doing anything else outside

of their residences unless they received permission to do so.

Plaintiffs have provided various examples of the restrictions

imposed upon employees on sick or job injury leave for which

reprimands were issued. Such examples consistent of the

following type of situations:

An officer recovering from an on-duty motor

vehicle accident who left his home to attend a

meeting of the Alumni Association at a

fraternity house.

An officer who was recuperating from surgery

and who worked part-time at a radio station

until she was well enough to resume her duties

as a police officer.

An officer who was on sick leave and left his

home to pick up his son for visitation.

Two officers who were on sick leave for

stomachaches and were not at home when

whereabouts checks were performed.

An officer who was home for on-the-job injury

leave and left work to go to the store.

An officer who was home on sick-leave for

back pain and left his home, without a

supervisor’ s permission, to pick up

medication. After getting his medication, he

fell asleep at a cousin’s house and missed three

whereabouts checks.

An officer who called in with a toothache and

recuperated at his girlfriend’s house.

An officer who was home with gastritis and

who notified the department that he was

changing locations.

9. An officer who used sick leave to attend the

funeral of a family member.

See Pls.” Supplemental Resp. to Def.’s Mot. for Partial Summ.

J. at 2-7.

In these examples, however, there is no showing that

the officers sought and were denied, as a matter of practice,

permission to carry on their activities away from home. The

rule as written clearly provides that they would have been

permitted to carry on these activities if they had requested and

received permission. However, there is no evidence that these

officers ever requested permission. The court concludes that

the policy as written is not in any sense so onerous as to

prevent the officers from effectively using the time for

personal pursuits. Upon requesting and receiving permission,

the officers were able to do anything at any location. The

record simply does not permit any reasonable juror to

conclude otherwise.

The plaintiffs, however, argue that the rule was not in

practice what it is in writing. They assert that defendant

“construed DR 1104 to allow employees to leave their

residences only to obtain medical care, and then only with the

permission of their supervisors.” Pls.” Mem. in Resp. to Def.’s

Mot. for Partial Summ. J. at 8. Plaintiffs cite to and rely on the

affidavits of Jerry Moses, Robert Collins and Wanda Dodd.

The affidavit of Jerry Moses filed May 3, 1995, states

that he was only allowed to obtain medical care with the

permission of his supervisors. It does not indicate that

permission to leave the residence was denied routinely as a

matter of practice. In fact, at paragraph 16, he states that the

employee would be disciplined for not being at home unless

he had received prior approval to leave the home. The

affidavit of Robert Collins merely testifies to his

“understanding,” not to the alleged practice, of denying

permission as a matter of practice to leave the home upon

request. The affidavit of Wanda Dodd speaks only to her

“understanding” of the policy, not to the actual method or

routine manner of its application.

The court concludes after reviewing this evidence that

the plaintiffs have not cited to any evidence in the record to

support their argument that DR 1104 was enforced in practice

by the routine refusal to grant officers permission upon request

to leave their homes. Lacking such evidence there is no

genuine dispute of material fact that the policy in question --

either as written or otherwise -- was so severe and onerous as

to prevent employees from effectively using the time for

personal pursuits.

Accordingly, the court grants the defendant’ s motion

for summary judgment on plaintiffs’ claim for overtime

compensation pursuant to defendant’s LWI Policy.

B. Training Time

i. Factual Context

Plaintiffs allege that they have not been compensated

for specialized training that they completed pursuant to

defendant’s encouragement. Specifically, several plaintiffs

contend that they were not compensated for training

completed in bus driving. Those plaintiffs argue that the

purpose of the bus driving training was to qualify them to

drive buses of large numbers of officers in the event of a riot

or other similar civil disturbance. Although these plaintiffs

were compensated for some of the time spent in bus driver

training, they were not compensated for the first day of

training and argue that they are entitled to that compensation.

Another group of plaintiffs allege that they were not

compensated for training in crisis intervention and hostage

negotiation. Specifically, those plaintiffs affected seek

compensation for a four hour long psychological exam they

were forced to undergo in satisfaction of the crisis intervention

training.

il. Applicable Law

Time spent by employees in training is generally

compensable. However, 29 C.F.R. § 785.27 provides an

exception to that general rule when the following four-part test

is satisfied:

(a) Attendance is outside of the employee’s regular

working hours;

(b) Attendance is in fact voluntary;

related to the employee’s job; and

(d) The employee does not perform any productive

work during such attendance.

Id. Therefore, the question before the court is whether the bus

driving and crisis intervention training is exempt from regular

compensation requirements.

The evidence before the court indisputably reflects that

those plaintiffs who underwent the training at issue did

voluntarily attend that training outside of their regular hours;

thereby satisfying the first two prongs of the test.* However,

the court further finds that a genuine dispute of fact exists

regarding the third and fourth prongs of the test: whether the

crisis intervention and hostage negotiation training were

related to the employee’ s job and whether the employee

performed any productive work during the training. Because

the third and fourth factors cannot be met, the court denies

* Officers in bus driving training were paid, but there is a dispute whether

they were paid for the entire time spent in training. The court is unable to

resolve that dispute on motion for summary Judgment.

defendant’s motion for summary judgment on the training

issue.

The crisis and hostage training apparently benefited the

police department because defendant needs such trained

officers in the event of an emergency. Further, plaintiffs have

also set forth sufficient evidence that their time spent during

training was productive because they learned the skills

necessary to function in their special capacities. In Mumbower

v. H.R. Callicott, 526 F.2d 1183, 1187 (8th cir. 1975), the

court held that:

The employer who wishes no such work to be done has

a duty to see it is not performed. He cannot accept the

benefits without including the extra hours in the

employee’ s weekly total for purposes of overtime

compensation. If the employer has the power and

desire to prevent such work, he must make every effort

to do so,

(citing 29 C.F.R. § 785.13). Here, there is no indication that

defendant did anything but encourage the plaintiffs to undergo

the relevant training. Therefore, because a reasonable fact-

finder could conclude that plaintiffs should be compensated

for overtime spent in specialized training, the court denies

defendant’s motion for summary judgment on that claim.

cS Canine Squad

i. Factual Context

Included among the police officers that are bringing

this suit are officers who functioned as canine handlers for the

Police Department. Canine handlers feed, exercise, groom and

otherwise care for the police dogs during their off-duty hours.

The canines are housed by the officer at his or her residence

and canine officers are responsible for transporting the dcgs to

and from work in their respective police cars.

Plaintiffs that are within this group of canine handlers

are seeking compensation under the FLSA for both time spent

at home caring for the dogs and the transportation of the dogs

to and from work. Defendant has moved for summary

judgment only on the travel time issue contending that the

time spent transporting the canines to and from work is not

compensable under the FLSA.

ii. Applicable Law

The Portal to Portal Act (“Portal Act”), 29 U.S.C. §

251, amended the FLSA in 1947 to exempt employers from

compensating their employees for preliminary activities that

were “relatively effortless, [and] that were thought to fall

outside the conventional expectations and customs of

compensation.. Reich v. New York City Transit Auth., 45 F.3d

646, 648 (2d Cir. 1995). Specifically, the Portal Act provides

that employers are not liable to employees under the FLSA for

the following activities:

(1)

(2)

[W]alking, riding, or traveling to and from the

actual place of performance of the principal

activity or activities which such employee is

employed to perform, and

[A]ctivities which are preliminary to or

postliminary to said principal activity or

activities, which occur either prior to the time

On any particular workday at which such

employee commences, or subsequent to the

time on any particular workday at which he

ceases, such principal activity or activities.

29 U.S.C. § 254(a)(1) & (2). Therefore, the plain language of

the Portal Act appears to render plaintiffs’ claim for

compensation for travel time to and from work with the dogs

noncompensable. However, § 254(a)(2) does, by implication,

allow for an exception for preliminary or postliminary

activities that are a necessary part of the principal activity. It is

plaintiffs’ contention that the responsibilities involved in

caring for the dogs during the commute fall within the

“principal activity” exception to the general rule of

noncompensability for travel time.

Defendant argues that plaintiffs have not submitted any

proof demonstrating that they engaged in activities during

their commute to work which are compensable under the

FLSA as amended by the Portal Act. Conversely, plaintiffs

contend that canine transportation is a principal activity

entitling them to compensation under the Act. To support their

position that the duties performed while transporting the dogs

to and from work rose to the level of compensable activity

under the FLSA, plaintiffs have submitted affidavits by

employees Stephen Comeila, Kenneth J. Connatser and Jane

Taylor Martin. The Comella, Connatser and Martin affidavits

describe, among other things, the responsibilities of the canine

handlers during commute time and document specifically

which activities should entitle those officers to compensation.

As previously noted, the Portal Act specifically

excludes travel time to and from work from compensability

under the FLSA. 29 U.S.C. § 254 (a)(1). However, an

exception exists for preliminary or postliminary activities that

are so integral to an employee’s “principal activities,” that the

time is deemed compensable. Although no bright line test

exists to determine whether or not any particular conduct

constitutes a “principal activity,” id., at 649, the Supreme

Court has held that duties should be considered compensable

if they are “an integral and indispensable part of the principal

activities for which covered workmen are employed.” Steiner

vy. Mitchell, 350 U.S. 247, 256 (1956). Since the Supreme

Court’s decision in Steiner, a myriad of different factual

circumstances have presented themselves to the courts,” and

* See Mitchell v. King Packing Co., 350 U.S. 260 (1956) (knife-sharpening

for butchers before and after work is principal activity); Barrentine v.

Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984), cert. denied,

471 U.S. 1054 (1985) (Time spent driving company trucks to garage for

repairs was compensable principal activity for truck drivers); Vega v.

Gasper, 36 F.3d 417, 424-27 (Sth Cir. 1994) (lengthy bus transportation of

agricultural workers to fields not compensable where employees not

required to travel in company bus).

consequently some guiding principles on _ identifying

“principal activities” have emerged.

One such precept is that the more the preliminary or

postliminary activity is undertaken for the benefit of the

employer, as well as necessary for the employee to

successfully complete his or her work, the more likely it is to

be a compensable principal activity. Reich, 45 F.3d at 650.

However, if such preliminary or postliminary work is so

minimal as to render its calculation futile, then that potentially

compensable time is generally disregarded. Id. See Andersen

v. Mr. Clemens Pottery Co., 328 U.S. 680, 692 (articulating de

minimis doctrine) (“When the matter in issue concerns only a

few seconds or minutes of work beyond the scheduled

working hours, such trifles may be disregarded. Split-second

absurdities are not justified by the actualities of working

conditions or by the policy of the Fair Labor Standards Acct. It

is only when an employee is required to give up a substantial

measure of his time and effort that compensable working time

is involved. ).

Therefore, one question before the court on the canine

travel time issue is whether commuting with the dogs is so

indispensable to the employee’s workday as to render it

compensable under the FLSA. However, even if the plaintiffs

can meet that indispensability threshold, they must also

demonstrate that the time spent caring for the dogs during the

commute is more than just de minimis. The majority of courts

faced with this issue have found that, as a matter of law, any

duties performed by canine officers during the commute to

and from work are minimal and therefore not compensable.

See Reich, 45 F.3d at 652 (“Considered in the aggregate, the

time spent by handlers in dog-care duties during the commute

was neither subs tantial, nor regularly occurring”); Truslow v.

Spotsylvania County Sheriff, 783 F.Supp. 274, 277 n.5 (E.D.

Va. 1992) (holding that as matter of law defendants are not

required to pay employees for commuting time with the dogs);

Andrews v. DuBois, 888 F. Supp. 213, 219 (D. Mass. 1995)

(“From the record, it appears that the presence of the dogs

during the travel to and from work rarely adds even marginal

amounts of time to the officers’ regular commute. While it is

true that loading the animals in and out of the car requires

some degree of time and effort, this effort is so negligible as to

be de minimis and therefore not compensable.”); but see

Graham v. City of Chicago, 828 F. Supp 576, (N.D. Ill. 1993)

(“[T]ime spent transporting police canines is more than merely

‘riding’ to work ... it is an integral and indispensable part of

the officers’ principal duties as canine police officers and thus

not excluded from coverage.”).

This court adopts the reasoning of the Second Circuit

in Reich which held that only “true dog-care work occurring

during the commute” is compensable. Reich, 45 F.3d at 652.

After evaluating the Conflicting precedent on this issue, the

Reich court returned to the “basic principle that underlies the

FLSA: Employees are entitled to compensation only for

“work.’” Id. at 651. After reviewing the record, the Reich

court held that the amount of time spent by the canine handlers

actually working during the commute to and from work was

de minimis and therefore not compensable. See id. at 652.

However, the court was reviewing the record after a three day

bench trial in the district court where the facts were presented

and weighed by the fact- finder, not after summary judgment

as in the instant case. The plaintiffs in this case have submitted

affidavits detailing their responsibilities during the commute.

Those duties are once again outlined in plaintiffs’ statement of

undisputed facts at 78-92. Determining whether an activity is

preliminary or postliminary to a principal activity is a mixed

question of law and fact. Graham, 828 F. Supp at 582. “The

precise nature of the Plaintiff S duties is a question of fact

while the application of the FLSA to those duties is Clearly a

question of law.” Id. Because the facts contained in the

relevant affidavits are undisputed with respect to the officers’

duties during cariine transportation, this court is simply

charged with determining how the law applies to those

undisputed facts. Thus, the issue of whether the canine

transportation is compensable in this case is appropriate for

summary judgment.

The Comella, Connatser and Martin affidavits set out

the range of duties that officers are engaged in during their

commute to and from work with their canines. Plaintiffs argue

that they should be compensated for those activities which

consist of: constantly monitoring the dogs in the car, verbal

discipline and control of the dogs when they are affected by

outside stimulus, keeping the windows open for the dogs

despite the weather, and monitoring their radios so that they

can respond to calls during the commute. Plaintiffs further

allege that their regular duties in caring for the dogs such as

feeding, training, walking and cleaning up after them® also

occur during the commute to and from work.

The court finds that although there may be

instances where plaintiffs have to spend some extra

moments caring for the dogs during transportation time,

those “few moments” are de minimis and simply not

worthy of compensation under the FLSA. As the court

held:

While there are occasions where dogs need to be

walked or restrained, or the car requires cleaning,

during the major part of commuting time no work

is required. The handler merely drives with the dog

in the back seat. The mere presence of a dog does

not make the commute compensable.

45 F.3d at 652. See also Andrews, 888 F. Supp. at 219 (“[T]he

majority of cases that have confronted the issue of police

* It is unclear to the court how the extra cleaning time that plaintiffs must

spend on account of the dogs should translate into compensation for travel

time. If plaintiffs believe they are entitled to compensation for cleaning

time, they should request a cleaning allowance or reimbursement for that

specific activity. Cleaning their vehicles is unrelated to the claim for actual

time spent commuting to and from work with the canines. See Levering,

869 F. Supp at 29 (“While cleaning time and damage to the vehicle might

support a request for a cleaning allowance, it is not clear how that damage

and cleaning time justifies compensation for the time spent in travel.”).

officers commuting with their dogs ... have concluded that

such activity is explicitly excluded by the Act and that officers

should not be compensated for doing what they would have to

do anyway — getting themselves to work.”). Should a situation

arise where a canine handler has to perform an unusually

significant duty during the commute which involves his dog,

that handler can submit an independent request for

compensation for that particular activity. If that particular

activity is time actually worked and is more than de minimis,

defendant has an obligation to compensate its employee for

that time. However, the record before the court in this case

does not contain any evidence of more than de minimis

responsibilities that the canine handlers must perform during

their commute to and from work. Accordingly, the court

grants defendant’s motion for summary judgment on the

canine transportation issue.

CONCLUSION

For the reasons discussed above, defendant’s motion

for summary judgment is granted as to the claims under the

“Location When III” Policy and for travel time spent while

transporting canines to and from work. The motion for

summary judgment on the training time issue is denied.

IT IS SO ORDERED this 29th day of December, 1995.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.