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Lewallen v. Scott County, Tennessee
This case was before the Court, following a bench trial. The issue before the Court revolved around whether time spent by a K-9 officer training and caring for a narcotics detection dog assigned to him was compensable under the FLSA. For the reasons discussed below, the Court held that such time was indeed compensable and awarded Plaintiff damages in accordance with his off-duty time spent performing these duties.
The Court recited the following facts as relevant to the inquiry regarding the compensability of the hours at issue:
Kristofer Lewallen began his duties as a K-9 officer on July 1, 2006, when Sheriff Jim Carson ordered him to pick up a black Labrador dog named “J.J.” Sheriff Carson told Lewallen to begin working with the dog and eventually J.J. would be trained as a narcotics detection dog. J.J. lived with Lewallen and Lewallen fed, trained and cared for him. These activities with J.J. were “off the clock,” that is, they were performed in addition to Lewallen’s regularly scheduled work.
In September 2006, Sheriff Anthony Lay took office, and Lewallen’s immediate supervisor became Chief Deputy Bobby Ellis. Lewallen continued to feed, train and care for J.J. under Sheriff Lay. In October 2006, J.J. received training in narcotics detection and was certified as a narcotics detection dog. In addition to the previous care, Lewallen now needed to perform maintenance training with J.J. to keep him certified. Lewallen was not compensated for any of the time he cared for and trained J.J., although Scott County paid for food, veterinary care, and other necessary items for the dog.
Lewallen was trained as a K-9 officer in January 2007. At that training Lewallen learned for the first time that K-9 officers should receive extra pay for the time they spent with their dogs off the clock. Lewallen researched the requirements and submitted the information to Chief Ellis, who gave it to the Scott County finance director. The information included a statement that the Department of Labor requires that the time spent with police dogs is compensable time and, if the hours spent with the dog exceed the 40-hour work week, time and one-half compensation must be paid.
In March 2007, Sheriff Lay called a mandatory meeting of the Sheriff’s Department employees where he announced the suspension of the County K-9 program. Nevertheless, Lewallen still had to care for and train J.J. since he still had possession of the dog. During this time, Lewallen kept training logs for J.J., which were given to Chief Ellis. The training logs showed the amount of time Lewallen was training J.J. during his off-duty hours-45 minutes to six hours a day on his days off and after his shifts.
Sheriff Lay allowed the K-9 officers to begin working with their dogs again in September 2007, and the Scott County K-9 officers were scheduled and sent for training and certification at that time. Lewallen asked Chief Ellis about compensation for his off-duty care and training of his dog, and Ellis said that the Sheriff knew about his request for overtime compensation. Other Scott County K-9 officers also asked Chief Ellis about getting paid for their overtime. Lewallen prepared a proposed schedule that gave each K-9 officer two hours of paid time per scheduled work day as compensation for the care and training of the dogs, and he submitted the plan to Chief Ellis. He never received any response to his proposal…
Lewallen claims one and one-half hours per day of overtime related to his responsibilities of caring for and training his narcotics dog for 874 days. Specifically, on a daily basis Lewallen provided food and water for his dog; brushed the dog and its teeth; administered arthritis medication; and cleaned the kennel area. In addition, the training log examples submitted as evidence show that he often trained his dog for several hours after his shift or on his days off. While Lewallen admits that one and one half hours is an estimate, Scott County has not produced any proof that this estimate is too high or unreasonable.”
Holding that such time was compensable the Court said:
“The first issue to be decided is whether the off-duty time Lewallen spent caring for and training his narcotics dog qualifies as work. The Supreme Court has defined “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944). This definition includes work performed off-duty. Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (holding that employees must be compensated for activities performed for the employer before or after a regular work shift if the activities are an “integral and indispensable” part of the employees’ principal activities). The definition even applies when the work is not requested but is “suffered or permitted.” 29 C.F.R. § 785.11. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.
To determine whether the care and training of the narcotics dog was compensable work, there are three questions to be considered: (1) Did Scott County require or suffer Lewallen to care and train J.J.? (2) Was the care and training of the dog necessarily and primarily for the benefit of the County? and (3) Was the off-duty work an integral and indispensable part of Lewallen’s principal activities? Brock v. City of Cincinnati, 236 F.3d 793, 801 (6th Cir.2001). The court concludes that the answer to all three questions is “yes.”
Sheriff Carson ordered Lewallen to pick up a black Labrador dog named J.J. and to begin working with the dog in the hope that J.J. eventually would be trained as a narcotics detection dog. J.J. was to live with and to be taken care of by Lewallen, but he was not Lewallen’s dog as evidenced by the fact that the Sheriff had the dog picked up from Lewallen when he was demoted. Sheriff Carson wanted Scott County to have a certified narcotics dog and K-9 officer, as did Sheriff Lay, and the sheriffs were certainly aware that keeping a dog at home would require taking care of it beyond Lewallen’s scheduled shifts. Even if Sheriffs Carson and Lay were not aware of the exact amount of time needed to care for and train a narcotics dog, they required Lewallen to perform these activities with J.J. Sheriff Lay was informed that Lewallen thought he should get paid for taking care of and training J.J. when he was off duty, but he did nothing to curtail Lewallen’s time spent with the dog, other than suspending the K-9 program for a few months. Sheriff Lay scheduled the training of J.J. and Lewallen in narcotics detection, and Scott County paid for J.J.’s food, veterinary bills, and other necessities. As the Sixth Circuit held in Brock, Scott County “required the officers to take the canines home with them, look after them at all times, keep them well-nourished and in good health, and have them ready for recall to active service at a moment’s notice.” Brock, 236 F.3d at 804.
The court finds that the care and training of J.J. was for the benefit of Scott County, and an integral and indispensable part of the County’s K’9 program. After he was certified, Lewallen’s principal activity for the Sheriff’s Department was working as a K-9 officer. Thus, the time Lewallen spent caring for and training his canine is compensable work.”
Not discussed here, the Court rejected Defendant’s assertions that such time was properly compensated by $1,000.00 per year and/or “comp time.”
To read the entire Memorandum Opinion, click here.