Truslow v. Spotsylvania County Sheriff

• Decision Date: 18 February 1992
• Docket Number: Civ. No. 91-1083-A.
• Citation: 783 F. Supp. 274
• Court: U.S. District Court — Eastern District of Virginia
• Parties: George Eugene TRUSLOW, Plaintiff, v. SPOTSYLVANIA COUNTY SHERIFF and Stafford County Sheriff, Defendants.

783 F. Supp. 274

George Eugene TRUSLOW, Plaintiff, v. SPOTSYLVANIA COUNTY SHERIFF and Stafford County Sheriff, Defendants.

Civ. No. 91-1083-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 18, 1992.

Michael E. Levy, Garrisonville, Va., for plaintiff.

John Adrian Gibney Jr., Shuford, Rubin, Gibney, & Dunn, Richmond, Va., for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

This case, before the Court on defendants' motion for summary judgment, presents the question whether a deputy sheriff assigned to a canine unit is entitled to compensation for off-duty care of his police dog and related activities under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., including the Portal-to-Portal Act of 1947, 29 U.S.C. § 254.

The uncontested facts disclose that George Eugene Truslow was employed by the Stafford County Sheriff as a deputy sheriff in a canine unit from approximately August 8, 1988, to January 22, 1989, and thereafter in a similar capacity by the Spotsylvania County Sheriff from approximately March 26, 1989, to February 8, 1990. Truslow volunteered for assignment to the canine units. In each instance, the County owned the canine unit dogs. The Spotsylvania County Sheriff's Standard Operating Procedures of the Canine Unit required that deputies assigned to the unit be responsible for the health, care, cleanliness, and well-being of the unit's dogs and that they attend monthly retraining sessions. Uncontroverted deposition testimony of the Stafford County Sheriff reveals that he would have terminated Truslow as a canine unit deputy if Truslow had not attended to his dog's cleanliness, readiness to work, feeding, grooming, working, training, and exercising.

Thus, as part of his required duties as a canine deputy for both the Stafford and Spotsylvania County Sheriffs, Truslow fed, groomed, exercised, and otherwise cared for his dogs.¹ This work included frequent cleaning of the dogs' kennels and the back of Truslow's patrol cars, which accumulated dog hair and odors. Often the work had to be accomplished during off-duty hours. For example, Truslow's supervisors at both the Stafford and Spotsylvania Sheriff's Departments required that he groom his dogs before his scheduled work shift began. Truslow performed most of the dog care activity at his home, where the dogs resided when not required to work.² Truslow was not compensated for off-duty time spent caring for the dogs, nor was he compensated for off-duty time expended for (i) unscheduled emergency canine calls (which sometimes lasted several hours), (ii) veterinary appointments, (iii) dog training programs, and (iv) canine demonstrations.

Truslow filed suit against defendants³ seeking (i) compensation under the FLSA for unpaid overtime work performed in connection with the care of the police dogs, (ii) statutory liquidated damages, pursuant to 29 U.S.C. §§ 216(b) and 260,⁴ and (iii) attorneys' fees, pursuant to 29 U.S.C. § 216(b). Defendants jointly moved for summary judgment. The issues having been fully briefed and argued, the motion is now ripe for disposition.

Summary judgment is appropriate only where there is no genuine issue of material fact. See Rule 56, Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For purposes of summary judgment, facts, and the reasonable inferences therefrom, must be viewed in the light most favorable to the non-moving party. See Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990). On the issue of whether off-duty time spent caring for a canine unit dog is compensable under the FLSA, the Court finds that, viewed in the light most favorable to Truslow, no issues of material fact remain and that the question can therefore be decided as a matter of law. For the reasons that follow, the Court holds that off-duty time expended in the care, training, and required demonstration of a canine unit dog constitutes compensable hours worked under the FLSA. 29 U.S.C. § 201 et seq.

The FLSA requires employers to compensate employees for all hours worked. 29 U.S.C. § 201 et seq. Defendants urge that Truslow's dog care time at home and after hours did not constitute hours worked for purposes of the FLSA. The essential question therefore is what counts as hours worked under the FLSA.

The Portal-to-Portal Act of 1947 to the FLSA provides, in pertinent part, that an employer need not compensate her employees for activities that are "preliminary to or postliminary to" the "principal activity or activities" which an employee is engaged to perform, unless the employer is otherwise required to compensate her employees for such work by custom, contract, or practice.⁵See 29 U.S.C. § 254(a)(2) and (b). Thus, the determination whether an activity involves compensable hours worked pursuant to the Portal-to-Portal Act of 1947 depends upon whether the activity is a principal activity or a preliminary or postliminary activity. The term "principal activity or activities" includes all activities that are "integral and indispensable" to the principal activity. See Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). The test for principal activities and integral and indispensable parts of such activities is "whether the activities are performed as part of the regular work of the employees in the ordinary course of business." Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir.1976). An employee may engage in more than one "principal activity" during the work day. Moreover, an "activity" need not predominate over all other activities to be considered a "principal activity." See 29 C.F.R. § 790.8(a); Dunlop, 527 F.2d at 400. Nor must it occur during normal work hours to be a "principal activity." The decided cases make clear that an integral and indispensable activity may well take place before or after an employee's regular work hours. See Steiner v. Mitchell, 350 U.S. at 247, 76 S.Ct. at 330 (changing clothes and showering held to be an integral and indispensable part of the principal work for battery factory workers who used toxic materials and were compelled by circumstances to change and shower in facilities that the employer was required to provide by state law); Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956) (time spent by meat company butchers sharpening their knives held to be an integral and indispensable part of principal activities); Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47 (8th Cir.1984) (truck drivers' time spent on pre-shift safety inspections was an integral and indispensable part of the principal work activity), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985).

In contrast to integral and indispensable activities, preliminary or postliminary activities are activities spent predominantly in the employees' own interests. See Dunlop, 527 F.2d at 398-400. Activities are classified as preliminary or postliminary only if they are "undertaken for the employees' own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer." Dunlop, 527 F.2d at 398 (quoting Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934 (5th Cir. 1955)). See also Leone v. Mobil Oil Corp., 523 F.2d 1153 (D.C.Cir.1975) (time spent voluntarily accompanying OSHA inspectors on factory walk-throughs primarily advanced employee, not employer, interests and therefore was not required to be compensated under the FLSA); Hodgson v. Katz & Besthoff, 365 F.Supp. 1193 (W.D.La.1973) (drug store cashiers were not entitled to compensation for time spent counting cash balance before beginning regular work shifts where such work was irregular and haphazard, not required by employer, and primarily for employees' convenience in later balancing their accounts); Cherup v. Pittsburgh Plate Glass Co., 350 F.Supp. 386 (N.D.W.Va.1972) (changing clothes before shift of no significant benefit to employer and hence time spent doing so need not be compensated under the FLSA), aff'd, 480 F.2d 921 (4th Cir.), cert. denied, 414 U.S. 1068, 94 S.Ct. 578, 38 L.Ed.2d 474 (1973).

The amount of time an activity consumes is not determinative of whether it is a principal activity or merely a preliminary or postliminary one, see Steiner, 350 U.S. at 247, 76 S.Ct. at 330 (compensation required for short time needed to change clothes and shower because of special work conditions in battery factory), although time may be a pertinent factor to consider. See Cherup, 350 F.Supp. at 386 (compensation not required for three to four minutes spent changing clothes before shift). Nor is the fact that the work in question is performed at an employee's home dispositive. See 29 C.F.R. § 785.12 (regulations pertaining to work time apply "to work performed away from the premises or the job site, or even at home"); Renfro v. City of Emporia, 729 F.Supp. 747 (D.Kan.1990) (firefighter's mandatory on-call time compensable, even if spent at home), reconsideration denied, 732 F.Supp. 1116 (1990), aff'd, 948 F.2d 1529 (10th Cir.1991).

Moreover, contrary to defendants' argument, the fact that an employee may volunteer for a particular assignment is, without more, irrelevant. The FLSA defines "employ" as "to suffer or permit to work." 29 U.S.C. § 203(g); 29 C.F.R. § 785.11. Thus, "the crucial question is not whether the work was voluntary, but rather whether the plaintiff was in fact performing services for the benefit of the employer with the knowledge and approval of the employer." Steiner, 350 U.S. at 251, 76 S.Ct. at 333. See also 29 C.F.R. § 785.11 ("Work not requested but suffered or permitted is work time."); Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981) ("An employer who knows or should have known that an employee is or was working overtime is obligated to pay overtime. An employer who is armed with this knowledge...