Ninth Circuit Rules That Donning and Doffing of Police Uniform and Gear is Not Compensable Under FLSA

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Yesterday the Ninth Circuit Court of Appeals issued a groundbreaking decision in Bamonte v. City of Mesa, holding that the time police officers spend before and after their paid shifts donning and doffing their police uniforms and related protective gear (i.e., bulletproof vests and equipment belts) is not compensable work under the FLSA so long as the officers have the option and ability to don and doff their uniform and gear off of the employer's premises. The Ninth Circuit agreed with longstanding United States Department of Labor interpretations in holding that the donning and doffing of a police uniform and protective gear is not performed primarily for the benefit of the police employer when it can be performed away from the employer's premises. Since the plaintiffs were not compelled to don and doff their uniforms and gear on the work premises by a workplace rule, a legal mandate or the nature of their work, they were not performing compensable work under the FLSA when they donned and doffed their uniforms and gear. The Ninth Circuit reached this holding even though many of the Mesa officers actually elected to don and doff their uniforms and protective gear at work.

FACTS

The Bamonte plaintiffs were required to wear a police uniform and certain gear, such as a duty belt and firearm. They were urged but not required to wear body armor, although they were required to have body armor and other protective gear available while on duty. The City of Mesa provided the officers with an area to change and a locker at the police station. The Bamonte plaintiffs claimed that they were taught and encouraged in the police academy and during their field training to don and doff their uniforms and gear at the police station for safety reasons, although they were not required by the police department to don and doff on department premises.

The City of Mesa required officers to cover the police uniform if they wore it while commuting to or from work and prohibited them from wearing the uniform at other times while off-duty except for authorized police events. Since there was no City policy or legal requirement that compelled plaintiffs to don and doff at work, the plaintiffs argued that the nature of their work required them to don and doff at the police station. In support of this argument, the plaintiffs presented evidence suggesting that many officers in the Mesa Police Department regularly donned and doffed their uniforms and gear at the police station.

However, the City presented evidence that some officers either partially or fully donned their uniforms and gear at home or away from the police department, and that motor officers were required to fully don and doff their police uniforms and protective gear at home.

The Bamonte plaintiffs also claimed that the uniform and safety gear induced members of the public to comply with their commands and deterred crime as they formed part of a police officer's "command presence." They claimed that the uniform and protective gear were inextricably intertwined to form an urban survival suit. The U.S. District Court of Arizona granted summary judgment in favor of the City of Mesa and plaintiffs appealed to the Ninth Circuit.

MAJORITY OPINION

The Ninth Circuit carefully examined the prior U.S. Supreme Court and Ninth Circuit decisions which held that the activity of donning and doffing was compensable work, noting that in each of the three cases the employer required the employees to don and doff on its premises. (Steiner v. Mitchell, 350 U.S. 247 (1956); Alvarez v. IBP, Inc., 339 F.3 894 (9th Cir. 2003); Ballaris v Wacker Siltronic, 370 F.3d 901 (9th Cir. 2004.) The Court relied on its prior decision in Alvarez to identify a three stage inquiry for determining compensability of donning and doffing:

1) Is the activity work that is controlled or required by the employer?

2) Is the activity an integral and indispensable duty?

3) Is the activity de minimis?

The Ninth Circuit conceded the first step of the analysis by finding that donning and doffing of the police uniform and gear was arguably required by the employer. However, the Ninth Circuit found that donning and doffing of the police uniform and safety gear was not integral and indispensable to the duties of the police officers. The Ninth Circuit emphasized that an activity is integral and indispensable only if it is both necessary to the principal work performed and performed for the benefit of the employer.

The Ninth Circuit agreed with the District Court decision in Abbe v. City of San Diego, 2007 WL 4146696 (S.D.Cal. Nov. 9, 2007), stating that the relevant inquiry is not whether the nature of the job requires donning and doffing of the uniform and gear, but rather whether the nature of the job requires the process of donning and doffing to occur on the employer's premises. The Ninth Circuit also was persuaded by the U.S. Department of Labor's regulations, advisory memoranda and Field Operations Handbook on clothes changing. The Department of Labor has long maintained that changing into and out of clothes and safety gear is compensable work if 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." (29 C.F.R. §790.8, n. 65.)

The Bamonte plaintiffs cited several reasons why donning and doffing of their uniforms and gear at the police station was necessary to perform their job and benefited their employer:

1. There is a risk of loss or theft of uniforms and safety gear at home;

2. Non-police officers could access their uniform and safety gear;

3. Checking their firearm at home presented a safety risk to their family;

4. The safety gear was uncomfortable to wear while commuting;

5. Wearing the uniform and gear away from the police station results in an increased risk of them being identified as a police officer off-duty, which poses a threat to their safety;

6. The uniform and gear could expose their family members to hazardous fluids; and

7. Distractions at home interfere with their ability to don and doff.

The Ninth Circuit found that the first six factors above solely benefited the employee, not the employer. Although an officer's comfort, safety concerns and family concerns are logical reasons to dress at work, "these reasons reflect preferences rather than mandates." There was also no evidence that the protective gear "is less effective if donned at the officer's home." The Ninth Circuit determined that the plaintiffs had offered no evidence of any law, rule or regulation that required them to don and doff on the employer's premises. Moreover, the Ninth Circuit found that unlike in prior cases where donning and doffing was found to be compensable, there was no mutual obligation in this case between employer and employee to don and doff on the employer's premises.

The Ninth Circuit rejected arguments by the plaintiffs that they are entitled to be paid for any work regardless of where it is performed because that general principle of law is contradicted by the more specific rule that donning and doffing is only compensable if it is required to be done on the employer's premises. The Ninth Circuit also noted that a determination that the location of donning and doffing controls compensability is consistent with the Congressional intent behind the Portal to Portal Act of 1947 - to limit unexpected and substantial liability to employers for preliminary and postliminary activities. Thus, since the facts of the case established that plaintiffs had the option and ability to don and doff off the premises, they were not entitled to compensation for donning and doffing.

Judge Gould's Concurrence and Dissent

Although all three judges on the Ninth Circuit panel agreed that donning and doffing a police uniform is not compensable work, only two of the three judges agreed that donning and doffing of gear is also not compensable work. Judge Ronald Gould issued an opinion that concurred with the majority that donning and doffing of the uniform is not compensable work, but also issued a dissenting opinion that was highly critical of the majority decision's "bright line rule" that the location where an employee is required to don and doff the uniform and gear is controlling of compensability. Although Judge Gould acknowledged the location of donning and doffing is important, he contended that it was only one of several factors that should be considered to determine compensability.

Judge Gould's concurrence flatly rejected the officers' argument that the uniform performed some job-related function other than identifying the wearer of the uniform. He specifically rejected the notion that the uniform helps the officer perform his or her job by assisting the officer with establishing a command presence. Gould noted that the uniform does not assist officers in arresting suspects or writing reports, and that in some types of assignments, such as undercover work, officers perform police work without wearing a formal police uniform.

Judge Gould focused on the functionality of the safety gear in addition to the location where the gear was donned and doffed. Judge Gould found that the police protective gear is necessary for an officer to perform his principal job of law enforcement, as it protects the officer and the public and may be used to restrain and subdue suspects. Furthermore, Judge Gould found that the donning and doffing of the protective gear was also done primarily for the benefit of the employer. Since Judge Gould found that donning and doffing of protective gear was integral and indispensable to plaintiffs' principal job duties, he believed the case should have been remanded back to the District Court for a determination of whether the time spent donning and doffing safety gear was de minimis.

Finality of Decision

The decision as currently written represents a resounding victory for police employers that could foreclose much if not all of the pending donning and doffing litigation. However, the plaintiffs still have opportunities to challenge the decision by petitioning the Ninth Circuit for rehearing and by petitioning the U.S. Supreme Court. Given the wide divergence of decisions on this issue at the District Court level, and the fact that the three judge panel of the Ninth Circuit decided that safety gear is not compensable by a 2-1 margin, the Ninth Circuit might be interested in rehearing this case en banc (a panel of 11 judges), though that is unlikely. Until the plaintiffs' ability to petition the Ninth Circuit and Supreme Court expires, there will still be some degree of uncertainty about the compensability of police officer donning and doffing.

Practice Pointers

The critical factor in the decision is the location of the donning and doffing activities. Employers must demonstrate that their employees have the option and the ability to don and doff their uniforms and safety gear off of their premises to avoid compensation for donning and doffing. Employers should review their policies, especially in police departments, and ensure that those policies specify that employees are not required to don or doff their uniforms or safety gear on the employer's premises. However, policies that require police officers to cover the uniform if it is worn while commuting are still valid, as the Bamonte plaintiffs were required to do that.

Additionally, the Ninth Circuit did not specifically address the issue of whether maintenance of the uniform and protective gear is compensable work, although it can be implied from the decision that maintenance time is not compensable work since the donning and doffing of that gear is not compensable work. Finally, this decision does not permit employers to require employees to perform work activities other than donning and doffing at home without compensation.

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