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Heitmann v. City of Chicago

March 25, 2009

HANS G. HEITMANN, ET AL., PLAINTIFFS-APPELLEES,
v.
CITY OF CHICAGO, ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 04 C 3304 & 04 C 5712-Sidney I. Schenkier, Magistrate Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge

ARGUED SEPTEMBER 22, 2008

Before EASTERBROOK, Chief Judge, and ROVNER and WILLIAMS, Circuit Judges.

State and local governments are entitled to offer compensatory time off in lieu of overtime pay, if employees agree to this procedure. 29 U.S.C. §207(o). See Christensen v. Harris County, 529 U.S. 576 (2000). With the assent of the police officers' union, Chicago has implemented a comp-time program. In this suit, some of the officers who have accumulated credits under the program contend that Chicago has made the leave too hard to use. A magistrate judge, presiding by the parties' consent, agreed with plaintiffs and entered a detailed injunction specifying how Chicago must handle all future applications for compensatory leave. 2007 U.S. Dist. LEXIS 67684 (N.D. Ill. Sept. 11, 2007) (decision on merits); 2008 U.S. Dist. LEXIS 12983 (N.D. Ill. Feb. 21, 2008) (injunction).

The parties' dispute concerns the effect of §207(o)(5):

An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency-

(A) who has accrued compensatory time off authorized to be provided under paragraph

(1), and

(B) who has requested the use of such compensatory time,

shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.

Plaintiffs say that a need to consider "undue disruption" supposes a particular time, so that employees are entitled to leave on a date and time of their own choosing, unless this would mean that too few police officers remained available for service. Chicago reads the language to mean that the Police Department, rather than the officer, gets to name the date and time for leave. Officers may submit requests; all the Department need do is offer some leave within a "reasonable time" of the request. The only effective restraint, in the City's view, is that officers may not accumulate more than 480 hours of leave. Compensatory time is granted whenever an officer works more than 171 hours in any 28-day period. (Ninety minutes of comp time are awarded for each extra hour worked.) Once any given officer accumulates more than 480 hours, future overtime must be paid in cash. As long as it keeps the balance below 480 hours per officer, the City submits, it gets to call the shots about when the leave may be used.

After the parties collected extensive evidence, the magistrate judge found it undisputed that the Police Department does not have any policy about how and when leave may be used; decisions are left to each watch commander or shift supervisor. Most commanders or supervisors, most of the time, grant or reject applications for leave on a specific day without giving reasons. They do not attempt to get a substitute for a person who wants time off; instead they ask whether the shift or unit still would have enough personnel if leave were granted and no other change were made. If an application is granted, the supervisor or commander may or may not give the officer the date and time requested. If the application is denied, it is not put in a queue for use at the next time when leave would not "unduly disrupt" operations; instead the application is returned to the officer, who is told to apply again-but without any guidance about when leave could be made available without undue disruption. The Department does not keep records of requests for compensatory leave, so we do not know how often officers get to take time off on the dates they request, or even how many times they must apply (on average) to have any leave granted.

The magistrate judge concluded that these informal procedures fail to ensure that each worker gets to use leave within a reasonable time, and do not ensure that officers get their choice of dates for leave unless undue disruption would ensue. He issued an injunction to supply the rules he thought needed. Choosing that remedy was a misstep.

The Fair Labor Standards Act allows injunctions, 29 U.S.C. §217, but equitable relief is appropriate only when the remedy at law is inadequate. See Sampson v. Murray, 415 U.S. 61 (1974). Comp time is a substitute for overtime pay. If an employer fails to honor the statutory conditions for using compensatory leave in lieu of overtime pay, then it must pay time-and-a-half for most overtime hours (and double time for some). Any injury is compensable by money; a larger paycheck is the normal remedy under the ...


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