“NO COMPENSATION FOR DONNING AND DOFFING”
March 26, 2010
On March 25, 2010, the Ninth Circuit U.S. Court of Appeal ruled that the Fair Labor Standards Act (FLSA) does not require compensating officers for putting on, or taking off, their uniforms IF they are allowed to do so at home. The Court issued its ruling in the case of Bamonte v. City of Mesa, Az. stating that, “Appellants, police officers employed by Appellee City of Mesa (City), challenge the district court’s entry of summary judgment in favor of the City. The officers contended that the City violated the Fair Labor Standards Act (FLSA) by failing to compensate police officers for the donning and doffing of their uniforms and accompanying gear. Because officers had the option of donning and doffing their uniforms and gear at home, the district court determined that these activities were not compensable pursuant to the FLSA and the Portal-to-Portal Act. We agree that these activities were not compensable pursuant to the FLSA, and affirm the district court’s judgment.”
The Court agreed that employees are entitled to be compensated for all the time spent working for their employers. However, said the Court, “[t]hat such activity is work, as a threshold matter, does not mean without more that the activity is necessarily compensable. The Portal-to-Portal Act of 1947 relieves an employer of responsibility for compensating employees for activities which are preliminary or postliminary to the principal activity or activities of a given job.”
The Court noted that the issue of donning and doffing is not new; additionally, what constitutes an “integral” part of a principal activity performed for the employer has also been reviewed in the past. Whether or not that includes getting dressed depends on several factors. The Court notes that the Department of Labor (DOL) has opined that “… a [compensable] situation may existwhere the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.” (Emphasis added.)
DRESSING AT HOME
In referring to the case of IBP, Inc. v. Alvarez, the Court stated that “because the donning and doffing of this gear on the . . . plant’s premises is required by law, by rules of IBP, and by the nature of the work, this donning and doffing is necessary to the principal work performed . . .” and, therefore, was compensable. The Court points out that, following the Alvarez decision, the DOL issued a memorandum containing the following: ” . . . donning and doffing of required gear is within the continuous workday only when the employer or the nature of the job mandates that it take place on the employer’s premises. It is our longstanding position that if employees have the option and ability to change into the required gear at home, changing into that gear is not a principal activity, even when it takes place at the plant.”
The Court addressed the issue of officers having the option to dress at home and then come to work. It stated, “although logical reasons exist for the police officers not to avail themselves of the at-home option, such as comfort, safety concerns, and exposure of family members to certain substances, these reasons reflect preferences rather than mandates. In sum, donning and doffing of uniforms and related gear are not required by law, rule, the employer or the nature of the police officers’ work to be performed at the employer’s premises.”
The Court concluded that “. . . our analysis of the governing statutes, as informed by the DOL interpretation, our precedent, and other analogous cases; leads us to the conclusion that the donning and doffing of police uniforms and related gear are not compensable activities in this case. No requirement of law, rule, the employer, or the nature of the work mandates donning and doffing at the employer’s premises, and none of the other factors articulated in Alvarez weigh in favor of a conclusion of compensability.”
HOW THIS AFFECTS YOUR AGENCY
As we have said since the Alvarez case was decided, if you do not require your officers to “suit up” at the station but, rather, allow them the choice of dressing at home or the station, the FLSA does not require that they be compensated for that time. Numerous courts have wrestled with this issue but this is the most recent, from the Federal Court of Appeal, directly addressing it and rendering a clear, concise, decision. [See Client Alert Memos Vol. 21, No. 13 (August 15, 2006) and Vol. 24, No. 13 (May 15, 2009).]
Other issues which seem to come forward, with that of donning and doffing, involve allowing employees to engage in job related work when off duty. For example, allowing and/or encouraging employees to check e-mail messages when home; permitting employees to come in early to discuss cases or issues involving the job; encouraging or allowing employees to complete reports when home; and so forth.
Unfortunately, due to the initiation of litigation by employees demanding compensation under FLSA, management must restrict such activities or be held accountable for paying overtime to the employee who engages in such activity. As a result, policies should be promulgated specifically restricting such off duty activity. Other steps which might be taken to reduce the potential for this type of litigation would include requiring prior written authorization from a superior when such off duty, work related, activity is to be undertaken; prohibiting access to the department prior to the start of a work shift; requiring that all reports be completed at the job site in order to know when they are being written; etc.