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FLSA Update: Rialto Officer Recovers Back Pay
For Time Spent Caring And Training His Personal Canine
BY:
MICHAEL A. MCGILL
In a
prior article, I wrote about the Fair Labor Standards Act (FLSA) and its
implications on canine handlers who are assigned dogs that must be cared
for and maintained while off duty. While it’s now firmly established
that officers must be paid for all time spent caring for, maintaining
and training a department issued canine, a case involving an intriguing
variation recently passed through my office. The question presented was
whether an officer, who on his own, manages to procure a bloodhound for
his personal use, but later trains the bloodhound to serve as a police
canine, and offers the bloodhound to the City free of charge, is
entitled to be reimbursed for the time spent caring for and training the
bloodhound. By all indications, the answer to the question is yes, and
the case is Glen Anderson v. City of Rialto, et al., Case Number
EDCV 05-6268.
Rialto
police officer Glen Anderson has spent the better part of his career
training and working with police canines. In February 2004, on his own
time, he acquired a bloodhound in hopes of learning the breed and
determining whether the breed would serve as an effective crime-fighting
tool for the City of Rialto. In the past, Anderson had heard that other
departments had used bloodhounds with great success in scent evidence
cases and in man trailing.
After
investing his personal time training his bloodhound, Officer Anderson
prepared a formal police Bloodhound Program including a set of
guidelines and rules and regulations based upon his training and
expertise. At the time, Rialto had a canine program, but no bloodhound
program. In April 2004, Anderson offered his Program to the Department
free of charge and indicated that he would donate his bloodhound to the
City as well.
The
Program was immediately well received, and because of its relatively low
cost, Officer Anderson was advised by his lieutenant that the Bloodhound
Program was going to be implemented, and that Anderson should continue
his bloodhound training so that the canine would be ready for action as
soon as the paperwork was completed. Over the next 15 months, Anderson
was repeatedly told on several occasions by both his lieutenant and
former Chief of Police Michael Meyers that his Bloodhound Program had
been approved, that his bloodhound was going to become a police canine
for Rialto, and that he should keep up his training to ease the
transition. Officer Anderson was permitted by Chief Meyers to flex his
on duty schedule, so that he could continue training his bloodhound.
Officer Anderson was asked to bring his bloodhound to various City
functions, including City Council meetings, to display the canine and
promote the impending Bloodhound Program. At various City functions,
former Chief Meyers, proclaimed that Anderson’s Program “was a go” and
that Anderson’s Bloodhound was going to be used as a police canine.
Although Chief Meyers later denied making these statements, numerous
eyewitnesses would eventually step forward and supported Anderson’s
version of the events. Chief Meyers also denied having face-to-face
conversations with Anderson where he told Anderson that his Program “was
a go” and that he should keep up his training. While there were no
independent witnesses to these admissions, Chief Meyers’ credibility was
questionable since the admissions were similar to the public statements
he had denied making before.
Month
after month passed, but yet the Bloodhound Program was never
implemented. As time went by, Officer Anderson continued to invest both
his personal time and on duty time into his bloodhound’s maintenance and
training. All along, Anderson’s lieutenant and Chief Meyers continued
to encourage Anderson to keep it up. Finally, enough was enough.
Officer Anderson contacted the undersigned attorney with Lackie &
Dammeier for advice. Recognizing that Anderson’s case presented a
unique challenge, given the circumstances in which he obtained the
bloodhound and the fact that he was never officially ordered to keep up
his training, Lackie & Dammeier proceeded by filing a FLSA lawsuit in
federal court. As discovery commenced, depositions of former Chief
Meyers and former Deputy Chief Arthur Burgess revealed that they were
both completely aware that Anderson was training the bloodhound to join
Rialto and that Anderson’s Program had only been officially rejected
within days of being served with Anderson’s FLSA lawsuit. While it was
now conceded that management had knowledge of all the work Officer
Anderson was investing in training his bloodhound, the only disputed
fact was whether Anderson was actually advised by his lieutenant and
Chief Meyers to train.
Thankfully, Officer Anderson’s meticulous note keeping and diligent
documenting of events was the turning point. In October 2004, well
before Anderson had contemplated his lawsuit, he forwarded to Chief
Meyers a memorandum indicating in part that his lieutenant told him on
numerous occasions that the Bloodhound Program had been approved and to
continue his training. Chief Meyers never responded to the memorandum,
never instructed his lieutenant to correct Anderson or to advise him
that the training, if he wished to pursue it, would be for his own
personal benefit. Instead, Chief Meyers stood by and permitted Anderson
to continue his training for the benefit of Rialto. As federal
regulations make clear, “it
is the duty of the management to exercise its control and see that the
work is not performed if it does not want it to be performed. It cannot
sit back and accept the benefits without compensating for them.”
After
discovery was complete, Rialto filed a motion for summary judgment,
attempting to dispose of the case. Rialto’s motion was swiftly denied,
the Court not even hearing oral argument. Recognizing the serious
problems in its case, and in light of the fast approaching trial date,
Rialto indicated a renewed interest in settling the case. Only days
before trial, Officer Anderson’s case was settled and he was reimbursed
virtually all of his back pay for the time he spent caring for and
training his bloodhound. Rialto also agreed to pay all of Anderson’s
attorney fees. Officer Anderson is grateful to Lackie & Dammeier for
its willingness to zealously protect officer rights in pursuing a case
involving such a novel issue of law.
ABOUT THE AUTHOR:
Michael A. McGill is an attorney with the law firm of Lackie & Dammeier,
and represents police associations and officers throughout California in
all labor and employment related civil litigation.
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