When Is A Canine Care Agreement ‘Reasonable’?

Under the FLSA, the time spent by canine officers off duty caring for and training their police dogs is considered compensable work. The Department of Labor’s regulations have special provisions governing compensation for work performed at home. Section 785.23 of the regulations provides: “It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.” Section 785.23 has been applied by a variety of courts in assessing FLSA claims made by canine officers.

Bob Diorio, a canine officer for the Village of Tinley Park, Illinois, sued the Village, seeking compensation for his off-duty canine care hours. The City moved to dismiss the lawsuit on the ground that the collective bargaining agreement covering Diorio was a “reasonable agreement” for compensation pursuant to Section 785.23. The contract provides: “As the amount of time outside of required duty hours that may be necessary for the maintenance, care, training and transport of the dog varies and cannot be precisely determined, the parties agree that a canine officer shall receive extra compensation of $2,000 per contract year of service as a canine officer. It is agreed that this extra payment shall constitute full compensation at the appropriate rate for all hours of work on off-duty time for the maintenance, care, training and transport of the dog.”

A federal trial court rejected the City’s motion to dismiss the lawsuit. The Court reasoned that “to show that it complied with the FLSA by reaching a ‘reasonable agreement’ with Diorio, Tinley Park has the burden of proving that (1) there was an agreement to compensate Diorio for his overtime work caring for the service animal, and (2) the agreement was ‘reasonable,’ having taken into account all of the pertinent facts. Diorio’s Complaint admits that Tinley Park and Diorio’s collective bargaining unit representatives reached an agreement to compensate Diorio for his overtime work. Therefore Tinley Park has satisfied the first requirement of Section 785.23.

“But the second requirement of Section 785.23, that the agreement was reasonable, requires the resolution of facts that cannot be decided at the motion to dismiss stage. Whether the CBA agreement is reasonable in light of all of the pertinent facts is a quintessential question of fact that cannot be decided in the Village’s favor at this stage of the litigation.

“Diorio alleges that the compensation outlined in the CBA does not consider the number of hours he actually spends caring for his service animal. He also alleges that the amount of money agreed to in the CBA does not compensate him at least minimum wage for the time he spends caring for the canine. Those allegations alone raise questions of fact as to the reasonableness of the CBA agreement.

“To show that the CBA meets the requirements of Section 785.23, Tinley Park needs to establish either that it took into account the number of hours worked by Diorio, or that the number of hours worked is not pertinent. It cannot make either showing at this time. There are, of course, many other factors that may be relevant to a determination of whether the compensation provided by the CBA is reasonable, such as whether the amount of additional compensation was freely bargained for or imposed on the officer, whether the employer paid for the dog’s food and medical care, whether the employer provided a take-home police vehicle for transporting the dog, whether the employer built a kennel for the dog, and an examination of the costs and benefits of having a highly trained police dog (and family pet) in the officer’s home. This list is not intended to be illustrative, not exhaustive; the point is that there are many fact issues relating to the agreement that may need to be developed in order to permit an assessment of the reasonableness of the compensation paid to Diorio.

“Tinley Park argues that the text of the CBA itself renders the agreement reasonable as a matter of law, because it states that the extra payment to canine officers shall constitute full compensation at the appropriate rate. But the reasonableness of an agreement must be determined based on all of the facts and circumstances of the parties’ relationship, not just whether the parties included a recitation as to the reasonableness of the compensation in the agreement.”

Diorio v. Village of Tinley Park, 2012 WL 2681298 (N.D. Ill. 2012).