Vol. 21 No. 13- Getting Paid For Getting Dressed?

August 15, 2006

Rains, Lucia & Wilkinson (“RL&W”) is a highly respected labor law firm, which represents numerous law enforcement officers and associations, and is based in northern California . On August 1, 2006, it published a “Client News Bulletin” entitled “Getting Paid for Getting Dressed” and concludes that, “the putting on of safety gear . should .mark the beginning of the compensable work day…” for a patrol officer. We must respectfully disagree with the conclusion drawn by RL&W.

Their conclusion is based on their interpretation of a U.S. Supreme Court decision, IBP, Inc. v. Alvarez (2005) 126 S.Ct. 514, which held that the time employees spend walking, from the area where they were required to change into special gear and their worksite, was compensable under the Fair Labor Standards Act (FLSA). We don’t disagree with the Court’s finding, but it is not consistent with the opinion expressed by RL&W.

The primary holding of the Court addressed the question of “.whether the time employees spend walking between the changing area and the production area is compensable under the FLSA?” First, it must be determined if the activity which occurs before the employee walks to the production area is mandated by the employer. In referring to an earlier decision, the Supreme Court states, “.we described ‘work or employment’ as ‘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.” (Emphasis added.)

It is imperative that the operative word “required” be recognized. The emphasis by the Court focused on the mandate imposed by the employer. The Court held that “.for those employeesrequired to don and doff unique protective gear, the walking time between the locker room and production floor was also ompensable….” (Emphasis added.)

The Court states that “these consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer’s premises before they engage in the productive labor for which they are primarily hired.” (Emphasis added.)

It was further noted that “.the parties stipulated that four categories of workers.were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts.” (Emphasis added.) Furthermore, “IBP requires its employees to store their equipment and tools in company locker rooms..” (Emphasis added.) The employees at IBP could not choose to get dressed while at home but, rather, were obligated to come to the work site before putting on, what was described as, elaborate protective gear.

Within the context of “suiting up” on the employer’s premises, the Court then went to make a further distinction between elaborate protective gear and nonunique gear, arriving at the conclusion that the donning of nonunique safety gear, which requires only an insignificant amount of time, is not covered by the FLSA. The Supreme Court made reference to the Court of Appeal decision, where the lower court endorsed

“…the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being ‘principle activities’.but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was “‘de minimis as a matter of law.'”

Nowhere in the IBP ruling is the conclusion drawn that the mere donning and doffing of safety gear is, categorically, compensable. Additionally, the Court dismissed the proposition of allowing “.any recovery for ordinary clothes changing and washing, or for the ‘donning and doffing of hard hats, ear plugs, safety glasses, boots [or] hairnets.'”

What this means is that FLSA coverage, according to the IBP ruling, is provided for certain classes of workers who are required, by the employer, to don elaborate safety gear on site in a time consuming fashion. IBP v Alvarez does not stand for the proposition, as stated in the RL&W Bulletin, that the FLSA extends coverage to an employee for “.the time spent putting on and taking off required protective gear..”

How Does This Affect Your Agency?

The RL&W Bulletin states that the firm “has begun an aggressive campaign for all its law enforcement clients in order to obtain agency compliance with this FLSA requirement, and has already demanded that agencies voluntarily comply or face an immediate FLSA lawsuit.” It appears, from such a threat, that lawsuits will be filed not only by RL&W but other police labor law firms, as well. It is necessary, therefore, for agencies to determine how to respond to such demands.

In our opinion, the IBP ruling means that if a patrol officer is required to “suit up” at the station, then the patrol officer might be eligible to be compensated under the FLSA for this activity. However, if a patrol officer is given the choice of either “suiting up” at home, at the station, or any where else, then the choice, by the officer, of doing so at the station does not result in compensable time.

As always, we urge that you confer with your agency’s legal counsel for advice and guidance before embarking on any advice set forth herein. This is especially true when dealing with an area of law, such as the FLSA, where monetary sanctions are built into the law, even for good faith mistakes.

If you wish to discuss this matter in greater detail, please don’t hesitate to contact me at 714 446-1400 or by e-mail at mjm@jones-mayer.com.