The opinion of the court was delivered by: Denlow, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
This case presents significant issues under the Fair Labor
Standards Act ("FLSA" or the "Act") arising out of a claim by the
plaintiff police officers ("Plaintiffs" or "Officers") that the
defendant City of Chicago ("Defendant" or "City") failed to
properly calculate and pay overtime. This case comes before the
Court by means of a trial on the papers in which the parties have
submitted stipulated facts, trial briefs, affidavits, deposition
excerpts, and supporting exhibits which constitute the record in
this case. See Morton Denlow, Trial on the Papers: An
Alternative to Cross-Motions for Summary Judgment, Federal
Lawyer, August 1999, at p. 30. See also, May v.
Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th
Cir. 1986); Allen v. United Mine Workers of America,
726 F.2d 352, 353 (7th Cir. 1984); Acuff-Rose Music Inc. v. Jostens,
Inc., 155 F.3d 140, 142 (2nd Cir. 1998). The parties have agreed
to proceed in this manner and to waive their right to present
oral testimony on the liability issues herein presented.*fn1
Oral argument was held on December 12, 2000.
The issues presented arise out of Counts I, II, III and VII of
Plaintiffs' Fifth Amended Complaint.*fn2 Counts I, II, and VII
relate to the manner in which the City calculated the FLSA
overtime rate for Officers prior to January 1, 1998. Count I
alleges the City underpaid Officers for overtime due under the
FLSA*fn3 by failing to include duty availability payments in the
calculation of the regular pay from which overtime payments are
derived.*fn4 The City agrees it failed to include the duty
availability payments in the calculations. The City's defense is
that it is entitled to a full credit for the overtime which it
paid under the parties' collective bargaining agreement ("CBA").
Count II alleges the City failed to include holiday hours in
determining whether Plaintiffs had reached the 171 hour FLSA
threshold. Count III alleges the City failed to include hours
worked by Officers in a voluntary special employment program
towards the FLSA overtime threshold. Count VII alleges the City
underpaid Officers by failing to include the duty availability
allowance in its computations when "cashing out" compensatory
time received for overtime. The Court will first discuss the
issues related to Counts I, II and VII and then discuss the
issues related to Count III.
The following constitute the Court's findings of fact and
conclusions of law pursuant to Rule 52(a) of the Federal Rules of
Civil Procedure. To the extent certain findings may be deemed to
be conclusions of law, they shall also be considered conclusions.
Similarly, to the extent matters contained in the conclusions of
law may be deemed to be findings of fact, they shall be
A. Collective Bargaining Agreement.
1. Plaintiffs are present or former police officers in the
Chicago Police Department ("CPD").
2. The City of Chicago is a municipal corporation organized and
operating under the laws of the State of Illinois. The Chicago
Police Department is an executive department of the City of
Chicago created and operating pursuant to section 2-84-040 et
seq., of the Municipal Code of Chicago. Section 2-84-040 of the
Municipal Code established the office of the Superintendent of
the CPD as the chief executive officer of the department. The
Superintendent is authorized to act pursuant to section 2-84-040
and other sections of the ordinance. The City is an employer
under the FLSA. 29 U.S.C. § 203(d). (Stip. ¶ 9).
3. Under the authority of the Illinois Public Labor Relations
Act, the Fraternal Order of Police, Lodge No. 7 ("FOP") is the
sole and exclusive collective bargaining representative for all
sworn police officers below the rank of sergeant, excluding
probationary officers, employed by the CPD in matters concerning
wages, hours, and other terms and conditions of employment.
(Stip. ¶ 10).
5. The CBA provides for an annual salary based on pay grade and
longevity. (CBA, App.A, pp. 112-113).
B. Computation of Overtime Rate of Pay and FLSA Rate of Pay
Prior to January 1, 1998
6. Prior to January 1, 1998, the City paid the same overtime
rate for both contract and FLSA overtime. (Stip. ¶ 6). This
overtime rate was determined by dividing an officer's annual
salary by 2,080 hours to obtain an hourly rate and then
multiplying that amount by 1 .5. (Stip. ¶ 6). Prior to January 1,
1998, this rate did not include the duty availability allowance
in its calculation of the regular rate used for deriving overtime
payments under the FLSA.
C. Duty Availability Allowance.
7. The CBA requires that police officers receive a "duty
availability allowance" as compensation for being available to
perform on the job at certain specified times. (CBA § 20.13).
8. For the years 1995 and 1996, every officer received a
quarterly duty availability allowance of $455, which amounted to
an annual duty availability allowance of $1,820. (Stip. ¶ 7).
9. Beginning January 1, 1997, every officer received a
quarterly duty availability allowance of $505, which amounted to
an annual duty availability allowance of $2,020. (Stip. ¶ 7).
D. Computation of FLSA Rate of Pay After January 1, 1998
10. Beginning January 1, 1998, the City began to pay Plaintiffs
an augmented FLSA overtime rate for FLSA overtime hours, which
rate included the duty availability allowance in the allocation
of the regular rate for FLSA purposes. (Stip. ¶ 5). The FLSA does
not require payment of overtime until an officer works in excess
of 171 hours in a designated 28-day FLSA period. (Stip. ¶ 2).
11. The CBA often requires the payment of overtime for work
hours before the employee reaches the 171 hour threshold. Thus,
there are work hours for which overtime is paid under the CBA
that are not FLSA overtime work hours. (Stip. ¶ 2).
12. On designated holidays the Officers received premium pay
for the hours worked. (Comp. and Ans. ¶ 19). Prior to January 1,
1998, these hours were not included by the City as hours worked
towards the 171 hours necessary in any given work period to reach
the overtime threshold for purposes of the FLSA. (Burke Aff. ¶
13. Furthermore, in some instances, the CBA provides for
overtime to be paid for hours worked prior to reaching the FLSA
171 hour threshold during a given work period. (Stip. ¶ 2).
Specifically, Officers received contract overtime any time they
worked in excess of their regular "tour of duty," or more than 8
hours in a day, or more than 5 consecutive days from Sunday to
Saturday. (CBA § 20).
14. Additionally, Officers received contract overtime when they
were called back for additional duty beyond their regularly
scheduled work hours, for attending court, or for work on
holidays or their days off. (CBA § 20).
F. Compensatory Time Under Contract.
16. The wages paid out for compensatory time are the same
whether the compensatory time was earned according to the CBA or
mandated by the FLSA. (Comp. and Ans. ¶ 22).
17. The "duty availability allowance" is not included in the
calculation of the regular rate used to "cash out" compensatory
time. (Comp. and Ans. ¶ 22).
G. Time Periods Involved.
18. The broadest possible relevant time period for Counts I and
II begins July 16, 1995, which is three years prior to the filing
of the original complaint. The relevant period for these counts
ends December 31, 1997, which was the last date on which the City
paid Plaintiffs at the same overtime rate for contract overtime
and FLSA overtime. (Stip. ¶ 3).
19. During the relevant time period, the 28-day FLSA period for
the Chicago Police Department tracked the police operational
periods, which ran for 28 days beginning on a Thursday and ending
on a Wednesday. Each Plaintiff worked a regular "tour of duty" in
an FLSA period that varied from 18 days (144 hours), to 19 days
(152 hours), to 20 days (160 hours), to 21 days (168 hours), to
22 days (176 hours). When a Plaintiff worked a 22-day (176 hours)
regular "tour of duty," the Officer automatically received
additional half-time for the hours from 171 to 176. (Stip. ¶ 4).
20. Beginning January 1, 1998, the City changed the FLSA
period, such that every Officer's normal "tour of duty" was
standardized to be 160 hours in every FLSA pay period. This was
done by starting the 28-day FLSA period on a Sunday and ending on
a Saturday. (Stip. ¶ 5).
Only Counts I, II, III and VII of Plaintiffs' fifth amended
complaint are currently before the Court. The FLSA requires
overtime be paid at a rate of time and one-half the Officer's
regular rate of pay. The FLSA defines the regular rate of
pay. Under the terms of the CBA, Officers receive a "duty
availability allowance" each quarter to compensate them for being
available to perform on the job at certain specified times.
Counts I and VII hinge on the common issue concerning the
inclusion of the "duty availability allowance" in the calculation
of the regular rate of pay.
Count II alleges the City underpaid Officers by not including
holiday hours towards the 171-hour threshold.
Count VII involves the "duty availability allowance" not being
included in the calculation of the regular rate of pay when
officers were "cashed out." Officers receive compensatory time
pursuant to both the CBA and the FLSA. An Officer who resigns,
retires or dies receives payment for all unused compensatory
time. This payment of unused compensatory time is referred to as
Counts I, II and VII raise the following issues for decision by
1) whether the duty availability allowance should be
included in determining the FLSA regular rate of
2) whether the City is entitled to a credit under the
FLSA for the payment of contract overtime;
3) whether a credit, if any, should be based upon pay
periods or the entire ...