The Police Law Blog

By John V. Berry, Esq., BERRY & BERRY, PLLC, berrylegal.com

In a recent case, Lewallen v. Scott County, Tennessee, 2010 WL 2757145 (E.D. Tenn. July 13, 2010), a police officer successfully brought claims under the Fair Labor Standards Act of 1938 (FLSA) for animal care (canine)/K-9 time that was not paid by the officer’s employer. 

 BACKGROUND

The officer, Kristofer Lewallen, was a K-9 officer with the Scott County, Tennessee police department.  His police dog was trained in narcotics detection and was certified as a narcotics detection dog.  Officer Lewallen was not compensated for any of the time he cared for and had trained his police dog, although the Department paid for food, veterinary care, and other necessary items for the canine.

During K-9 Officer training, about a year after he was hired, in 2007, Officer Lewallen learned for the first time that K-9 officers should receive extra compensation for the time they spent with the canines off the clock.  Officer Lewallen researched this issue and brought it to the Department’s attention.  Subsequently, about two months later, the Department suspended the canine program.  Despite the suspension of the program, Officer Lewallen still had to care for and train his police dog since he still had possession of the canine.  The officer kept training logs for his police dog and submitted them to the Chief of Police.

Officer Lewallen had asked for overtime compensation for these duties, from the Chief, but received no response about whether the Department would provide this compensation.  Eventually, Officer Lewallen filed suit against the Department, seeking 874 days of FLSA overtime related to the care and training of his canine.  

COURT'S RULING ON FLSA ANIMAL CARE

The U.S. District Court, in the Lewallen opinion, by Judge Leon Jordan, found in favor of Officer Lewallen’s claims under the FLSA.  In the ruling, Judge Jordan found that:

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.’

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.

Lewallen, at *3-4 (citations omitted).

In the ruling, Judge Jordan noted that there had not been a compensation agreement in place which might have alleviated the issue under Section 785.23 of the U.S. Code of Federal Regulations.  The Department had tried to pay Officer Lewallen a generic sum of $1,000 to cover all of the losses, but Officer Lewallen did not accept this  amount, turning the Department’s check over to his attorney.  The court in this case found that the Department’s action was unilateral and did not constitute an agreement under Section 785.23. 

Finally, the court awarded Officer Lewallen, both the lost overtime claimed, in the amount of $21,719.98, and liquidated damages for the earlier non-payment, leaving the Department to pay a total of $43,439.96 in compensation to the officer.  The court later awarded $66,261.20 to the officer’s law firm for legal fees in this matter.  It appeared that the Department subsequently filed a notice of appeal in this matter, but then voluntarily dismissed the action, leaving the judgment standing. 

CONCLUSION

Departments should address these types of overtime claims as soon as possible, rather than hope that they go away.  These kinds of cases can ultimately end up costing the Department much more when a suit of this type is brought under the FLSA.  Looking at the totals spent by the Department in this case, not including their own costs for legal defense, they spent at least $110,000 for a claim which originally amounted to $21,719.98. 

By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com

In a very interesting case, which should remind police departments not to retaliate against police officers and supervisors with respect to overtime issues, a police department was held liable for overtime retaliation.  A former patrol officer with the Los Angeles Police Department (LAPD) was awarded a $4,000,000 judgment on November 2, 2010 by a jury after it concluded that the officer’s termination was the result of having testified in an earlier Fair Labor Standards Act (FLSA) case.

The case, Romney v. LAPD, Case No. 09-cv-03048 (VBF) (Judgment Nov. 2, 2010) was filed first in the Superior Court of California for the County of Los Angeles on April 9, 2009 and then removed by the LAPD to the U.S. District Court for the California Central District because of the federal FLSA claims.

Factual Background

Officer Romney was an 18 year veteran of the LAPD, progressing through the ranks with a good record within the Department.  In January of 2008, Officer Romney, by subpoena, was called to testify in another officer’s FLSA overtime case that had been filed earlier, in 2006.  Officer Romney provided honest testimony in the FLSA case, as he was required to do, much to the chagrin of supervisors. 

In Officer Romney’s statements under oath, he explained the overtime policies of the LAPD and why, pursuant to unwritten rules in the LAPD, that he did not submit overtime slips for overtime that he had worked.  No less than a week after he had testified in January of 2008, the LAPD initiated an internal affairs complaint, filed by supervisors, claiming that Officer Romney should be disciplined for insubordination in not submitting overtime slips.  This action was taken despite the fact that this was the practice mandated through the department by supervisors.

Following the investigation, two recommending captains recommended that Officer Romney be issued a one-day suspension.  However, the LAPD Chief of Police, William Bratton, disregarded the recommendation and ordered Officer Romney’s dismissal.  Following the termination, Officer Romney appealed his termination by filing the lawsuit which was eventually heard before U.S. District Judge Valerie Baker Fairbank and a jury. 

Jury Holds that the LAPD’s Retaliation was Unlawful

On November 2, 2010, a U.S. District Court jury found in Officer Romney’s favor, ordering a recovery of $3,999,945, liquidated damages and attorney fees.  The opinion was issued on November 8, 2010.  It is unknown yet whether or not the LAPD will appeal the decision. 

For a copy of the original complaint filed in Superior Court, and then removed to U.S. District Court in Central California, click here. Download LAPD FLSA Retaliation Complaint