In 2007, a federal court found the compensatory time off policies of the City of Chicago, Illinois violated the Fair Labor Standards Act (FLSA). Foremost in the Court’s decision was a ruling that the City’s policy of denying compensatory time off requests when granting the request would have required it to call in another officer on an overtime basis violated the FLSA. The Court found that the possibility of additional overtime expenses was not an “undue disruption” under the FLSA that allowed the denial of the compensatory time off requests.
In February 2008, the same Court revisited the case for the purpose of setting the terms of an injunction that would control compensatory time off practices in the Department. On the table were two issues – the definition of a “reasonable period” of advance notice that would have to be given by officers desiring to use compensatory time off, and an identification of what would constitute an “undue disruption” that would justify the denial of a compensatory time off request.
The City suggested that a ten-day notice requirement of the intent to use compensatory time off would be a reasonable one. The City explained that a ten-day notice would serve as a “management tool to give the Department enough time to assess what staffing was going to be and would allow the Department some flexibility on scheduling and manpower.”
The Court decided that a 48-hour notice requirement was more appropriate: “Adoption of a ten-day notice requirement would severely restrict the sworn members’ ability to use FLSA compensatory time. As a practical matter, it may often be the case that a sworn member will not know ten days in advance if he or she wants or needs a particular day off. It would heavily burden sworn members’ right to use FLSA compensatory time to require in all instances requests to be made ten days in advance, on pain of having the request peremptorily denied for failing to do so.”
The Court cited an admission by the City that if a request was made 48 hours in advance, “probably nine-and-a-half times out of ten they are going to get that time.” The Court also noted that a settlement of an FLSA compensatory time off dispute between police officers and the City of Milwaukee had resulted in a 48-hour notice requirement, and “we have no evidence that Milwaukee has experienced any problems in working with that requirement.”
On the issue of what constituted an “undue disruption” sufficient to deny a request to use compensatory time off, the Court started with a negative – what does not constitute an undue disruption. The Court observed that in light of its prior decision, both parties agreed that the City could not turn down a request to use FLSA compensatory time off unless it “reasonably and in good faith anticipates that granting such a request would impose an unreasonable burden on the Department’s ability to provide services to the public.”
Moving to the affirmative, the Court found that the appropriate rule should be “a slight modification” of what the parties had proposed. The Court observed that the “undue disruption standard must, if nothing else, mean that FLSA compensatory time can be denied when granting it would endanger other officers’ safety. Thus, the injunction will state that undue disruption will exist only where the Department reasonably and in good faith anticipates that allowing the sworn member to take off the requested FLSA compensatory time would impose an unreasonable burden on the Department’s ability to provide services of acceptable quantity and quality to the public during the time requested without the use of the employee’s services, or would endanger sworn members’ safety if the request were granted. We hasten to add that we fail to see how the City will be able to show undue disruption under this standard if the Department, which is obligated to seek a replacement, is able to find a replacement to work the time off requested by the sworn member seeking FLSA compensatory time.”
Heitmann v. City of Chicago, 2008 WL 506111 (N.D.Ill. 2008).
NOTE: February also saw another police department’s compensatory time off practices being considered by a federal court. In Beck v. City of Cleveland, 2008 WL 483267 (N.D.Ohio 2008), the Court considered an argument by a financially-strapped employer that having to pay overtime for substitute employees constituted a “financial undue burden” that justified denying requests to use compensatory time off. The Court rejected the employer’s argument for the years between 1997 and 2003, even though in 2002 and 2003 the Department was under a hiring freeze and was unable to bring in new officers. The Court criticized the City for failing “to explain the effects of the hiring freeze on the Department’s ability to provide effective police services to its citizens.”
The Court did leave open the possibility that the City might have had a “financial undue disruption” in the years from 2004 through 2006. In 2004, the City was forced to enact budget cuts of $59 million, resulting in the layoff of 250 police officers and 91 civilians. The Court even found this dire financial situation to be a “close call” as to whether a financial undue disruption existed.
This article appears in the May 2008 issue