By Rick Gautschi
In Diorio v. Village of Tinley Park, No. 11 C 6724, July 6, 2012 (N.D. Ill. 2012), a K-9 officer sought overtime compensation for the off-duty time spent in the maintenance, care, training and transport of a service dog. A collective bargaining agreement provided that the employer would pay the officer the sum of $2000.00 per contract year in which he spent off-duty time maintaining, caring for, training and transporting the dog. The officer claimed that performing those services caused him to exceed a 40 hour work week. As a result, the employer’s failure to pay him overtime violated the Fair Labor Standards Act (FLSA). The employer contended that 29 CFR §785.23 provides an exception to the FLSA’s overtime requirement where a collective bargaining agreement contains a “reasonable agreement” regarding the compensation at issue.
Contending that because a reasonable agreement regarding compensation for services performed in relation of the service dog precludes a lawsuit for overtime compensation, the employer sought to dismiss the officer’s complaint for failure to state a cognizable claim. The trial court explained that whether the provision in the collective bargaining agreement constitutes a “reasonable agreement” as to compensation depends on more than a determination of whether the collective bargaining agreement contains a provision that addresses compensation for the maintenance, etc. of a service dog. Instead, the employer must show that the “agreement” at issue is reasonable when one takes into account all the pertinent facts. Because the officer had alleged in his complaint that, for example, the compensation provision in the collective bargaining agreement did not take into account the off-duty hours the officer actually worked and that the amount of compensation did not compensate the officer at least at the minimum wage. Based on these and other factual allegations, the trial court ruled that whether the agreement is reasonable is a “quintessential” question of fact. Consequently, the court denied the employer’s motion to dismiss the complaint.
