Detective Scott Anderson of the Ontario Police Department recently received a favorable trial verdict against his employer for its failure to pay him overtime. In addition, the federal court awarded liquidated (double) damages against the City of Ontario because it found that they acted recklessly and without good faith in forcing Anderson to work overtime, for approximately two years without compensation.

Anderson was a canine handler for the Ontario Police Department. In Summer of 2002, his assigned canine, Noa, deteriorated in health and was taken out of service. Anderson promptly received a new dog, Tina. However, despite repeated requests by Anderson, his original canine, Noa, was never retired and removed as city property. As you may well be aware, most, if not all canine handlers, are required to house, train, and care for their assigned canines at all times. This means that even on Anderson's days off, he had to care and maintain both Noa and Tina, while they were assigned to him.

As if their could be real doubt that Anderson's care time was compensable "work," the City maintains a K-9 Policy which specifically requires canine handlers to care and maintain their assigned canines until they are retired pursuant to the policy. Despite the simplistic nature of the retirement process, which required only a contract be signed by the police chief, no steps were taken to relieve Anderson of his burden. However, Anderson asked just about everyone to retire Noa-he spoke to his immediate supervisors, his lieutenant, and his captain about retiring the dog. Anderson spoke with them almost monthly, to which he was always informed that "it would be taken care of." Anderson was simply given the run-around.

Anderson's obligations to the City were particularly onerous, since his prior canine's deteriorated health and medical conditions required a significant amount of care. Aside from the doubling of basic activities, Anderson had to provide medication on a daily basis and clean up nasal discharge Noa left throughout its kennel and on the other canine, Tina. Anderson had to clean Noa's ears out on a daily basis and had to separate both canines while feeding them. Both canines, and particularly Noa because of his age and health, had to be thoroughly checked on a daily basis for developing bumps, bruises and other sensitivities.

After months had passed, Anderson approached his supervisor about the fact that he was not getting paid to take care of Noa. The supervisor warned Anderson not to make an issue of the overtime, or he would be "retaliated" against. On two instances, Anderson spoke with his lieutenant, who told him that he must continue to care and maintain the canine until the retirement paperwork was finalized, because it is important that the dog is housed so as to not escape and open the city up to extensive liability. The lieutenant even went so far as to warn Anderson that if Noa got out and injured someone, he could be disciplined.

Eventually, months turned into a year-and then a second year. Unfortunately, Anderson's canine could not survive the remarkable pace at which the City operated-the canine died in approximately July 2004, never having been retired by the City, and only after Anderson had cared for the City's dog for almost two years without pay.

Detective Anderson consulted with the offices of Lackie, Dammeier & McGill to obtain his rights and was happy to learn that canine care and maintenance time constituted compensable "work" under the Fair Labor Standards Act. It was equally clear that while Detective Anderson was paid for his care and maintenance of his newly acquired canine, he did not receive any sort of compensation for his prior canine, which he also maintained while the City purportedly arranged for the retirement-a process that took two years and was never completed.

A federal lawsuit was filed on Anderson's behalf against the City of Ontario. Rather than negotiate a fair settlement and avoid the expense and embarrassment of trial, the City stubbornly refused to pay Anderson anything other than a month or two of care and maintenance time. After extensive discovery, and a misguided motion for summary judgment by the City, the matter proceeded to trial.

During the course of the three day trial, the facts became essentially undisputed: The City maintained a policy compelling Anderson's care of the canine; Anderson continually asked to have his canine retired; Anderson was "warned" not to make an issue of the overtime; and Anderson was instructed by his lieutenant that he must continue to care for the canine until it was retired. In defense, the City argued that it should somehow escape liability because Anderson was a dog lover, and he would have cared for the canine, whether or not the retirement had been processed. The retirement paperwork, was in their minds, a mere technicality. The City's "technicality" argument prompted the police chief to testify that, while in a black and white world, Anderson's canine was not officially retired, however, in the "gray world" in which he (the police chief) is forced to operate, the canine was retired because it was no longer active in service. Presumably, the police chief's testimony about operating between the lines was designed to demonstrate that Anderson should not be paid for his time. The testimony did nothing more than draw laughter from those in attendance and ire from the Court.

Ultimately, it was the testimony of the police chief which ultimately did the City in. In response to questioning during this author's cross-examination, the chief was forced to concede that canine handlers are required to continue to care and maintain their dogs until they are officially retired, and that until that time, a canine handler could be subject to discipline. The City's defense fell apart at that point. Since most of the damage came from the City's own witnesses, to which the City's attorney was privy, it became a mystery why the City would expend so much tax-payer money in defending an indefensible suit.

Upon receiving the favorable verdict, Detective Anderson was paid $21,301 for his care and maintenance of Noa. In addition, the City was required to pay $82,249 in attorneys fees and costs. Detective Anderson was very please with Lackie, Dammeier & McGill for the aggressive representation provided and the vindication of his rights.

ABOUT THE AUTHOR: Michael A. McGill is an attorney with the law firm of Lackie, Dammeier & McGill APC, and represents police associations and officers throughout California in all labor and employment related civil litigation.