from Plaintiff's 7.1(f) Statement. For example, Defendant states: "The defendant, Town of Vestal, contests and disagrees with the following paragraphs of the Statement of Uncontested Facts submitted by the plaintiff- 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 23, 25, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, and 42." (Def's Statement of Uncontested and Contested Facts at P 2). Nowhere in its 7.1(f) Statement does Defendant provide a short and concise statement of the material facts it contends are in dispute, nor does Defendant provide "specific citations to the record where the factual issues arise." N.D.N.Y.L.R. 7.1(f).
If compliance with Local Rule 7.1(f) can be accomplished with such a minimal statement, any benefits inuring from Rule 7.1(f) would be completely eviscerated. Rule 7.1(f) was drafted to force litigants to focus sharply on the specific factual issues in dispute. By doing this, and providing precise citation to the record where the disputed facts are located, both the parties and the Court can move immediately to the gravamen of the case; absent this forced focus, the parties' briefs can remain, as is often the case, as "two ships passing in the night."
Thus, because Defendant has failed to comply with Rule 7.1(f), its motion for Summary Judgment is DENIED. Furthermore, as evidenced by the submissions of the parties, there is little agreement as to the applicable law in this case. For this reason, the Court will address some of the legal standards at issue to provide the parties with guidance at trial.
A. Were Plaintiff's Activities Compensable under the FLSA?
Section 207 of the FLSA provides in relevant part that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of [forty] hours . . . at a rate not less than one and one-half times the regular rate at which he is employed." 29 U. S. C. § 207(a). The purpose of the FLSA, passed in 1938, was to "guarantee compensation for all work or employment engaged in by employees covered by the Act." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 88 L. Ed. 949, 64 S. Ct. 698 (1944). However, under the FLSA "employees are entitled to compensation only for 'work'." Reich v. New York City Trans. Auth., 45 F.3d 646, 651 (2d Cir. 1995). While Congress made clear that employers are required to compensate employees, Congress left unclear "the contours of the type of 'work' or 'employment' that merit[s] such compensation." Reich, 45 F.3d at 649. In 1944, the Supreme Court defined the term "work" as an activity involving "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, 321 U.S. at 598. Two years later, the Court further interpreted the FLSA to require compensation for other activities such as walking from the factory gate to the workbench and changing into work clothes. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692-93, 90 L. Ed. 1515, 66 S. Ct. 1187 (1946).
The expansive reading of the FLSA in Anderson v. Mt. Clemens Pottery triggered a 1947 amendment to the FLSA titled the Portal-to-Portal Act, 29 U. S. C. § 251 et. seq. Congress passed the Portal-to-Portal Act in order to "relieve employers from liability for preliminaries, most of them relatively effortless, that were thought to fall outside the conventional expectations and customs of compensation." Reich, 45 F.3d at 649. Under the Portal-to-Portal Act, employees are not entitled to FLSA compensation for "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform" or for "activities which are preliminary to or postliminary to said principal activity or activities." 29 U. S. C. §§ 254(a)(1)-(2).
The shift in congressional focus from the term "work" to the slightly less ambiguous phrase "principal activity or activities that an employee is hired to perform," has done little to clarify the present issue. As a result, in Steiner v. Mitchell, 350 U.S. 247, 100 L. Ed. 267, 76 S. Ct. 330 (1956), the Supreme Court held that a given activity constitutes a "principal activity," as opposed to a noncompensable preliminary or postliminary task, if it is "an integral and indispensable part of the principal activities for which covered workmen are employed." 350 U.S. at 256; see also Reich, 45 F.3d at 649-50.
After reviewing the history of the FLSA and cases interpreting its compensation provisions, the Second Circuit recently concluded in Reich v. New York City Transit Authority :
The more the preliminary (or postliminary) activity is undertaken for the employer's benefit, the more indispensable it is to the primary goal of the employee's work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable. Commuting and similar activities are generally not compensable. The ability of the employer to maintain records of such time expended is a factor. And, where the compensable preliminary work is truly minimal, it is the policy of the law to disregard it.
45 F.3d at 650. The Reich court also noted that the Portal-to-Portal Act does not exempt from compensation "real work assignments" that occur outside the main part of the workday. Reich, 45 F.3d at 651.
Consequently, an activity constitutes "work," and is compensable under the FLSA, if it involves "physical or mental exertion (whether burdensome or not)," or the loss of an employee's time, that is "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Reich, 45 F.3d at 651 (quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S. Ct. 698, 88 L. Ed. 949 (1944)).
i. Canine-Related Activities
A number of courts have found, as a general matter, that time spent by a police officer caring for or training his or her assigned police dog during that officer's off-duty hours constitutes compensable work time. See Holzapfel v. Town of Newburgh, N.Y., 950 F. Supp. 1267, 1273 (S.D.N.Y. 1997); Andrews v. DuBois, 888 F. Supp. 213, 216-17 (D.Mass. 1995); Levering v. District of Columbia, 869 F. Supp. 24, 26-27 (D.D.C. 1994); Truslow v. Spotsylvania County Sheriff, 783 F. Supp. 274, 277-79 (E.D.Va. 1992); Reich, 45 F.3d at 650 (dicta).
As the Second Circuit recently noted in dicta, these activities constitute work because feeding, training, exercising, and otherwise ministering to the needs of a canine unit dog are, at least up to a point, "indispensable to the dog's well-being and to the employer's use of the dog in its business." Reich, 45 F.3d at 650; see also Nichols v. Chicago, 789 F. Supp. 1438, 1442 (N.D.Ill. 1992) ("in order for the canine patrol officer to properly perform his or her principal activity of canine patrol, the canine portion of the work team must be in proper working order"); Holzapfel, 950 F. Supp. at 1273 ("Because a basic level of care and attention is essential to ensure a police dog's health and well-being, some off-duty efforts on the part of a K-9 officer to maintain his or her dog clearly amount to 'work.'").
Here, Plaintiff is seeking compensation for the following canine related activities: grooming, bathing, exercising, feeding and watering, training, cleaning the dog's living quarters, cleaning the vehicle used to transport the dog, cleaning equipment, making and receiving dog related telephone calls, and preparing police paperwork connected with canine duties.
As to the specific activities Plaintiff allegedly performed, clearly time spent grooming, bathing, exercising, cleaning, and training the police dog is "required by the employer and is pursued necessarily and primarily for the benefit of" the VPD, and is thus "work" under the FLSA. See, e.g., Reich, 45 F.3d at 650 (stating in dicta that "feeding, training, and walking are work and are indispensable to the dogs' well-being and to the employer's use of the dogs in its business."); Andrews, 888 F. Supp. at 217 (feeding, grooming, and walking); Truslow, 783 F. Supp. 274 at 279 (cleaning, grooming, exercising, and training).
Plaintiff's other canine-related activities, such as making and receiving dog related telephone calls and preparing police paperwork connected with canine duties, are less clearly activities that are "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Reich, 45 F.3d at 651. Moreover, it is unclear whether these activities are any different than Plaintiff's other, non-canine police work that are discussed infra. Because there is insufficient evidence to make this determination, the Court will reserve on the issue whether Plaintiff's remaining canine activities are compensable under the FLSA.
ii. Non-Canine Activities
Hellmers also asserts that he performs non-canine duties during off the clock time for which he is not compensated in violation of the FLSA. These non-canine activities include: driving to and from regular shifts in marked police vehicles; performing police work immediately before his regularly scheduled shifts; cleaning his police firearm and vehicle; making and receiving police telephone calls from home; preparing police paperwork at home; and cleaning police uniforms.
Defendant correctly notes that as a general rule, the time spent transporting police dogs between home and work is not compensable under the FLSA. See, e.g., Reich, 45 F.3d at 648, 652. However, Plaintiff attempts to distinguish his situation by arguing that he drives to work in a marked police car in his official uniform, must sign on with the police department at all times, and must be ready and able to respond as a police officer from the moment he leaves his home.
As previously discussed, under the Portal-to-Portal Act, employees are not entitled to FLSA compensation for "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform." 29 U. S. C. § 254(a)(1). Nowhere in the Portal-to-Portal Act does there appear to be an exemption for commuting time spent in marked police cars. Absent such a provision by congress, the Court is not inclined to create one here.
Plaintiff next argues that he is entitled to compensation for time spent performing police work immediately before his regularly scheduled shifts, cleaning his police firearm, and cleaning his police vehicle. In determining whether Hellmers is entitled to compensation for these activities, the FLSA provides little definitive guidance. As the Second Circuit recently noted:
While no clear standards emerge, certain generalizations can be drawn from these authorities. The more the preliminary (or postliminary) activity is undertaken for the employer's benefit, the more indispensable it is to the primary goal of the employee's work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable.
Reich, 45 F.3d at 650. However, it is clear that an integral and indispensable activity may well take place before or after an employee's regular work hours. See, e.g., Steiner v. Mitchell, 350 U.S. at 247, 76 S. Ct. at 330 (changing clothes and showering an integral and indispensable part of the principal work for workers who use toxic materials); Mitchell v. King Packing Co., 350 U.S. 260, 76 S. Ct. 337, 100 L. Ed. 282 (1956) (time spent by butchers sharpening their knives 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 is an integral and indispensable part of the principal work activity). In contrast, preliminary or postliminary activities are activities spent predominantly in the employees' own interests. See Reich, 45 F.3d at 651. Activities are classified as preliminary or postliminary 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 v. City Elec., Inc., 527 F.2d 394, 398 (5th Cir. 1976) (quoting Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934 (5th Cir. 1955)).
Based on the uncontested facts in Plaintiff's Rule 7.1(f) Statement, the Court concludes that Hellmers' cleaning of his police firearm and cleaning of his police vehicle were not activities performed for his own convenience, but were required by his employer and were an integral and indispensable part of the principal work activity of the VPD. Thus, these activities are considered "work" under the FLSA.
Plaintiff's assertion that he is entitled to compensation for time spent performing police work immediately before his regularly scheduled shifts, making and receiving police telephone calls from home, and preparing police paperwork at home, however, are less clearly activities that are "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Reich, 45 F.3d at 651. Because there is insufficient evidence to decide this issue, the Court will reserve on the issue of whether Plaintiff's performing police work immediately before his regularly scheduled shifts, making and receiving police telephone calls from home, and preparing police paperwork at home are compensable under the FLSA.
Finally, Plaintiff argues that he should be compensated for time spent cleaning and maintaining his police uniform. While Plaintiff is correct that uniform cleaning is a type of activity that is generally compensable under the FLSA, see Treece v. City of Little Rock, Ark., 923 F. Supp. 1122, 1127 (E.D.Ark. 1996), in this instance the VPD, pursuant to Article 15(A) of the Collective Bargaining Agreement between the Town of Vestal and it police officers, specifically provides its officers with a stipend for "either dry cleaning or purchasing new uniforms." (Def's Ex. A). Accordingly, Plaintiff is not entitled to overtime compensation for time spent cleaning and maintaining his police uniform.
iii. Reasonableness of Plaintiff's Activities
Defendant argues that it does not necessarily follow that all off-duty activities, no matter how excessive, are sufficiently related to the officer's principal responsibilities or beneficial to that officer's dog as to warrant overtime compensation. The issue of whether a canine officer is entitled to payment for time spent in off-duty, dog-care activities, or whether the employee must first demonstrate that such efforts were reasonably necessary, has not been squarely addressed by the courts. However, confronting this same question, the Southern District of New York recently noted in Holzapfel v. Town of Newburgh, N.Y., 950 F. Supp. 1267 (S.D.N.Y. 1997), that "outside the canine context, at least two courts have concluded that in order to be compensable, the amount of overtime an employee claims to have spent on efforts related to the employee's principal activities must be reasonable." 950 F. Supp. at 1273; see also Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. 1994)).
As the court reasoned in Amos v. United States, 13 Cl. Ct. 442 (Cl.Ct. 1987):
To rule otherwise would run the risk of rewarding plaintiffs for lack of diligence in getting and returning the equipment and in walking to and from this work station and conversely, penalizing those of the plaintiffs who may have taken less than a reasonable amount of time in doing these activities.
Id. at 450. Moreover, it makes intuitive sense to this Court that in order for an activity to be "an integral and indispensable part of the principal activities for which covered workmen are employed," Steiner, 350 U.S. at 256; see also Reich, 45 F.3d at 649-50, the amount of overtime an employee claims to have spent must be reasonable in relation to the principle activity itself.
Accordingly, the Court finds Holzapfel and Amos to be persuasive on this issue and concludes that if an employee's activities (both canine and non-canine), even though of a type that would generally be compensable, exceed reasonable limits, they cannot be considered integral and necessary, and therefore do not constitute "work" under the FLSA.
Returning to the facts here, the Court concludes that whether and to what extent Plaintiff's off-duty canine activities and non-canine activities were reasonably necessary is an issue that the parties plainly dispute and is thus properly left to be resolved based on the evidence presented at trial. Accord, Holzapfel, 950 F. Supp. at 1275 (finding factual issue as to reasonableness of off-duty activities).
B. Did Defendant Suffer or Permit Plaintiff to Work Off-The-Clock?
In opposition to Plaintiff's Summary Judgment Motion, Defendant asserts that Hellmers should have completed the work, for which he seeks overtime compensation, within his regular work day. As plaintiff observes, however, the regulations caution that work which an employer suffers or permits an employee to engage in outside of normal hours is compensable. See 29 C.F.R. § 785.11. An employer is not free to refuse to pay overtime on the ground that the employee could have completed the work during regular hours and thus need not have resorted to working overtime. See 29 C.F.R. § 785.11; Reich v. Department of Conservation & Natural Resources, 28 F.3d 1076, 1082 (11th Cir. 1994) ("The reason an employee continues to work beyond his shift is immaterial; if the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted."). Nevertheless, with respect to work performed away from the job site or at home, the employer must credit an employee's claim for hours worked only "if the employer knows or has reason to believe that work is being performed." 29 C.F.R. § 785.12; see also Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981).
Defendant argues here that Plaintiff never submitted time sheets requesting the overtime he now claims entitlement to. However, addressing this very issue, the court in Holzapfel stated that
even in the absence of time sheets or other documentation apprising the Town that plaintiff worked the overtime he now claims, the defendants' constructive knowledge might be imputed from evidence demonstrating the police department's awareness that plaintiff's canine responsibilities were so extensive that he could not have completed them during his regular shift and the two hours per week of overtime the Town allotted.
950 F. Supp. at 1276. Similarly, in Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995), the Fifth Circuit indicated that had the evidence clearly established the chief of police's awareness of the plaintiff police officer's need to work overtime in order to meet the demands of the plaintiff's undercover assignment, knowledge of plaintiff's off-duty efforts could justifiably have been attributed to the police department. 47 F.3d at 749.
Moreover, the employer bears the burden of preventing overtime work when such work is not desired. See 29 C.F.R. § 785.13 ("In all cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them."). As the Eleventh Circuit stated in Reich v. Department of Conservation & Natural Resources, 28 F.3d 1076 (11th Cir. 1994), "an employer's knowledge is measured in accordance with his 'duty . . . to inquire into the conditions prevailing in his business.'" 28 F.3d at 1082 (quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)).
However, the duty to inquire is not unlimited, particularly where, as here, the employer has a policy against overtime and requires its employees to submit overtime compensation claims. See Holzapfel, 950 F. Supp. at 1277. In Newton, the Fifth Circuit cautioned:
The fact that the [chief of police] had access to the Task Force's activities means that perhaps he could have known that [plaintiff] was working overtime hours, but the question here is whether he should have known. In light of the fact that [the chief of police] explicitly ordered [plaintiff] not to work overtime and in light of the fact that [plaintiff] admits that he never demanded payment for overtime already worked, it is clear that access to information regarding the Task Force's activities, standing alone, is insufficient to support the conclusion that the City should have known that [plaintiff] was working overtime.