K-9 UNITS — REASONABLE AGREEMENT SHIELDS EMPLOYER FROM OVERTIME LIABILITY

A recent US District Court decision emphasized the role that agreements regarding K-9 reimbursement and stipends can play in avoiding overtime liability.  In Hoffman v. City of Lake Jackson, the U.S. District Court (Southern District of Texas), held that a memo stating that a K-9 officer would receive a $100 a month stipend and 4 hours of leave per week for off-duty hours spent caring for a drug-sniffing dog was a valid defense to the officer’s claims for unpaid overtime under the Fair Labor Standards Act. 

The U.S. Department of Labor Regulations recognize that it is “difficult to determine the exact hours worked” when an employee works at home.”  29 C.F.R. §785.23.  In such situations, the regulations state that “any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.”   Ibid.

Exactly what constitutes a reasonable agreement is not well established.  The DOL and the Ninth and Sixth Circuits have both addressed the issue.  The Ninth Circuit held a city agreement with a K-9 officer was not reasonable “because it failed to take into account the number of hours she actually worked” caring for her dog.  Lever v. City of Carson, 360 F.3d 1014 (Ninth Cir. 2004).  In Lever the officer was paid a flat fee of $60 every two weeks, the equivalent of one hour’s pay per week. 

The Sixth Circuit, however, ruled in Brock v. City of Cincinnati, 236 F.3d 793, 806 (6th Cir. 2001), that an agreement providing straight time for 17 minutes per day of off-duty dog care was reasonable even if it “far under-approximated the actual amount of FLSA work performed by the plaintiffs.”  There was no evidence that the employer was unaware that the agreement did not reflect the actual time worked and the court held the agreement to still be “reasonable.”  The Brock ruling upholds the general principle that any agreement should reflect the actual time worked to be considered “reasonable” under 29 C.F.R. §785.23.

To save your accounting department from headaches, a police employer should consider reaching agreements with K-9 officers regarding a flat rate of pay for off-duty dog care.  Any such agreement should take into account the amount of time actually spent by the officer and include that information in the agreement.  We would be happy to work with you to establish an agreement taking advantage of the regulation.

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