“GETTING PAID FOR GETTING DRESSED”- CURRENT STATUS
May 15, 2009
The debate over whether law enforcement officers are entitled to be compensated for getting dressed has been on-going for several years. In 2003, the Ninth Circuit U.S. Court of Appeals ruled in the case of Alvarez v. IBP, Inc., 339 F. 3d 894, that production floor workers in a meat and poultry processing facility were entitled to be compensated for the time it took for them to “don and doff” what the Court described as “elaborate protective gear.”
The employees were required by the employer, prior to going to the production floor, to go to one of the plant’s locker rooms and to don protective gear similar to haz mat suits. The wearing of that gear was considered “integral and indispensable” to carrying out their jobs of slaughtering and processing animal carcasses. According to some, law enforcement officers should be treated the same as the production workers in a meat packing plant.
In the first week of May, 2009, U.S. District Court Judge Gary Feess ruled that the few minutes it takes an officer to dress for duty is compensable under the federal Fair Labor Standards Act (FLSA). The theory, as expressed by the Court, was that since the officers were required to wear uniforms, in addition to their utility or Sam Browne belt, they should be paid for getting dressed. The Court also stated that “police uniforms convey and legitimize officers’ authority, increase officer safety, and help deter crime.”
It was further determined by the Court that officers should be compensated for ten minutes, at each end of the shift, to accomplish the “donning and doffing” of their clothes.
Alvarez v. IBP
The rationale used by the Ninth Circuit in the Alvarez case focused on several factors: (1) Employees were required by the employer to don the elaborate protective gear at the plant; (2) the donning and doffing of this “unique protective gear” was integral and indispensable to the principle activities for which the plaintiffs were employed and were required by law (OSHA), as well as by the employer; and (3) the amount of time to perform these tasks was substantial and not considered de minimis as a matter of law.
The Alvarez Court held that, “additionally the donning and doffing of clothes and gear at various intervals throughout the work day, requiring employees to wait for and to retrieve that gear in particular areas at particular times on the… plant’s premises,” further justified compensation.
The “donning, doffing, washing, and retrieving of protective gear is, at both broad and basic levels, done for the benefit of IBP. These plaintiffs performed activities which allowed IBP to satisfy its requirements under the law, and these activities prevent unnecessary workplace injury and contamination, both of which would inevitably impede IBP’s “disassembly” process.”
The Court stated that what is integral and indispensable also “extends to donning, doffing and cleaning of non-unique gear (e.g. hardhats) and unique gear (e.g. Kevlar gloves) alike. Little time may be required to don safety glasses and the use of safety goggles is undoubtedly pervasive in industrial work. But ease of donning and ubiquity of use do not make the donning of such equipment any less “integral and indispensable” as that term is defined….”
The Court then states, “however, we agree with the District Court’s alternative conclusion as to why the time spent donning and doffing non-unique protective gear such as hardhats and safety goggles is not compensable: the time it takes to perform these tasks vis-à-vis non-unique protective gear is de minimis as a matter of law.”
The Alvarez Court also concludes that the changing and maintenance of clothing is exempt from compensation under the FLSA.
Currently, there are two cases currently pending before the Ninth Circuit U.S. Court of Appeals which are scheduled to be heard in June 2009. In each of those cases, for different reasons, the Courts concluded that officers were not entitled to be compensated for the time spent donning and doffing their uniforms. It is our understanding that the recent decision by Judge Feess will be appealed by the City of Los Angeles and the decision next month could have a significant impact on its ultimate outcome.
Maciel v. City of Los Angeles
In March 2008, Senior U.S. District Court Judge Ronald S. Lew ruled, in the case of Maciel v. City of Los Angeles, 542 F. Supp 2d 1082, that “the donning and doffing of the standard police uniform, excluding the utility or Sam Browne belt and the Kevlar vest, was not compensable” under the FLSA.
The Court noted that “if changing clothes on the employer’s premises is required by law, rules of the employer, or the nature of the work, it would be an integral part of the employee’s principle activity.” (Emphasis added.)
The Court ruled that personal protective equipment, which is worn for protection against hazards (such as haz mat suits), is not considered mere clothing under the FLSA exception. However, “general work clothes (e.g. uniforms, pants, shirts, or blouses) are not intended to function as protection against a hazard and are not considered to be personal protective equipment.”
The Maciel court held that the donning and doffing of equipment such as the Sam Browne belt would be considered protective gear and the time it takes to put it on would be compensable. However, the court stated that it “recognizes that sister districts have resolved this same issue in conflicting ways,” nonetheless, it ruled that the Sam Browne belt and the Kevlar vest did not fall within the FLSA exception for general clothing.
Furthermore, although on a daily basis the time it takes to don and doff the vest and the belt is de minimis, the court ruled that in the aggregate it could not be classified as insignificant. Nonetheless, the court also ruled that Maciel failed to produce any evidence to show that he ever worked more than the 171 hours in a deployment period after which, under FLSA, overtime must be paid. Therefore, said the court, Maciel could not maintain any claim for compensation.
Bamonte, et al., v. City of Mesa, AZ
In April 2008, in still another donning and doffing decision, U.S. District Judge Neil V. Wake ruled that the donning and doffing of uniforms and protective gear was not compensable since there was “no evidence that its officers were required by law, policy, or the nature of their work to don and doff their uniform or safety equipment at work.”
The court went on to state that “the relevant inquiry is not whether the plaintiff’s uniforms or protective gear are necessary or integral to the performance of their duties, but rather whether the nature of their work requires the donning and doffing process be done at the station or reporting place.” (Emphasis added.)
The Court also held that “although a police uniform connotes a position of authority and alerts the public to the wearer’s identity, it is necessary to the performance of an officer’s duties only in the insufficient sense that uniforms identify many types of workers.”
The court also noted that, although the department made lockers available for the officers to change at the work place, it was the officer’s option to do so.
The court held that “the plaintiffs’ argument that the nature of their work does not allow them to don and doff at home is based primarily on concerns that their equipment is dangerous and that commuting in uniform unnecessarily increases health and safety risks.” However, states the court, “the defendant has established that each of the “risks” the plaintiffs cite can be easily and effectively mitigated. For example, officers are encouraged to cover up their uniform with other clothing when not on duty so that the public cannot identify them as police personnel.”
Furthermore, the court noted that the evidence showed the majority of Mesa police officers, in fact, “donned and doffed completely at home and half (of the officers) split the process between home and the station.” The court used this as evidence that the officer’s option to change at home is not, as the plaintiff’s suggest, merely illusionary.
HOW THIS AFFECTS YOUR AGENCY
Regardless of the decision of the Ninth Circuit in the Maciel and Bamonte cases, it is possible that litigation on this issue will continue since there seems to be a significant number of officers who wish to be treated the same as workers in a meat packing plant. While, on the one hand, arguing that law enforcement is a “profession,” we see arguments made by some law enforcement personnel which diminishes the contention that law enforcement is a profession.
It is not possible to claim professional status while at the same time arguing that one should be paid for the few minutes it takes to put on a pair of pants and a shirt, and to strap on a belt before embarking on one’s job. Virtually everyone, from doctors to lawyers to clerk typists, is required to put on clothing before beginning the principle activity of their job. Additionally, being clothed is an “intrigal and indispensable” part of virtually everyone’s employment. To demand compensation for such activity diminishes the professionalism of law enforcement officers.
In the Maciel case, the court agreed with the argument presented by LAPD officers that since LAPD provides officers with lockers in order to store their equipment when not on duty, that illustrates “LAPD’s desire to have such activity take place on site.” Logic dictates that in order to eliminate what LAPD officers and the Maciel court thinks is LAPD’s “desire to have such activity take place on site,” perhaps the Los Angeles Police Department should remove the lockers from their facilities so that officers would have no other option than to “don and doff” their uniforms at home.
As a result of this type of litigation, some agencies have now modified their policies which, heretofore, gave officers latitude in the way they conducted their own workday. As the old adage states: Be careful what you ask for.
As always, we urge that you seek advice and guidance from your agency’s legal counsel before proceeding on matters such as this. However, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.