One of the most-hotly-debated issues in public safety labor relations is whether the time spent by police officers putting on and removing uniforms and equipment must be compensated under the Fair Labor Standards Act. The “donning and doffing” controversy started with the Supreme Court’s decisions last October in consolidated cases involving workers in meat and poultry processing plants. At present, there are dozens of lawsuits pending in federal courts across the country involving police officers suing for compensation for “donning and doffing” claims.
To highlight the issue, we’re presenting a special “Point/Counterpoint” discussion of the donning and doffing issue by two of the nation’s leading public safety law practitioners. Alison Berry Wilkinson, a partner in the Pleasant Hill, California law firm of Rains, Lucia & Wilkinson, which represents over 100 police unions, is lead counsel on almost a dozen “donning and doffing” cases filed in the last few months. Peter Brown, a partner in the Los Angeles law firm of Liebert, Cassidy & Whitmore, is one of the foremost management voices on public safety FLSA issues, and has conducted litigation and training on FLSA matters for many years.

By Alison Berry Wilkinson

Cities Must Pay Officers for Donning Gear

The question in the dispute over whether the donning and doffing of safety gear is compensable time under the Fair Labor Standards Act (FLSA) is whether the equipment is integral and indispensable to the job. If you say that it isn’t, I ask you to pause and consider whether you would confront, chase and arrest bad guys without at least a pair of handcuffs, a gun, a baton, pepper spray, a radio and a ballistic vest.

In the mid-1970s, the California Legislature found that “it is essential to good law enforcement that law officers have the equipment necessary for the apprehension of offenders and…protection of the officers,” and passed a law identifying the equipment that officers must be issued at employer expense. Government Code Section 50081. That statute came on the heels of a lawsuit filed by the Oakland Police Officers Association seeking reimbursement for required safety gear. In that case, the Court defined safety gear to include “any practicable method of mitigating or preventing a specific danger.” The Court further stated that “it is unthinkable that a local governmental agency would require or permit its offices to go onto the streets without guns.” Oakland Police Officers Assn. v. City of Oakland, 30 Cal.App.3d 96 (1973).

Thirty years later, it is still unthinkable to send an officer out into the streets to arrest bad guys without a gun, let alone the full complement of available safety gear. Officers are able to go home to their families after each shift because they wear this gear while performing their sworn duty.

The debate over whether such time is compensable was re-ignited by the U.S. Supreme Court decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), which reaffirmed and expanded the Court’s decision in Steiner v. Mitchell, 350 U.S. 247 (1956). Under Steiner, activities such as the donning and doffing of protective gear that are “performed either before or after the regular work shift, on or off the production line” were deemed compensable under the Fair Labor Standards Act “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.”

IBP took it one step further and held that the continuous workday doctrine meant that the time spent after performing the first integral and indispensable duty (i.e., putting on the protective equipment) and then walking to the place where the principal duties are performed (i.e., on the floor of the poultry processing plant), is compensable. IBP says that when the protective gear is integral and indispensable to the performance of the job, the workday starts when that gear is put on in the locker room, not when the employee arrives at the designated work station. For police officers, that means their shift no longer starts when they appear fully suited for briefing.

Those who object to applying IBP to law enforcement assert that it takes only a couple of minutes to put on all the safety gear necessary to protect and serve the community. Those folks have never actually done it. Try it some time. Taken together, the required uniform and safety gear weighs about 20-30 pounds. The body armor alone weighs about ten pounds. All equipment needs to be functional and securely fastened to the uniform belt. The sheer bulk of the required uniform and safety gear is both cumbersome and awkward to put on and remove. On average, it takes ten to 15 minutes both before and after the shift to don and doff the required safety gear. Thus, the total amount of daily time spent performing this function is between 20 and 30 minutes, which is substantial.

Under the FLSA, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded as “de minimis.” But the regulations interpreting that rule provide that an employer cannot arbitrarily fail to count as hours worked “any part, however small, of an employee’s fixed or regular working time, or practically ascertainable period of time he is regularly required to spend on duties assigned to him.” See 29 C.F.R. Section 785.47. Thus the de minimis exception cannot apply to the ongoing, daily obligation of a police officer to put on, take off, and maintain his or her uniform and required safety gear, even if it only takes “a couple of minutes” to do the required task.

Some agencies permit officers to gear up at home, rather than requiring them to change at the police department. This flexibility has been capitalized on as yet another possible escape route from the liability imposed by the IBP and Steiner decisions.

While that option may impact the application of the continuous workday rule, it does not make the time spent performing the integral and indispensable job duty any less compensable. It is well established under the FLSA that an employee must be paid for work performed as long as the work was suffered or permitted within the constructive or actual knowledge of the employer. The rule applies even to work performed away from the premises or job site. 29 C.F.R Section 785.12.

The public agencies have actual knowledge that their police officers are donning and doffing safety equipment that is indispensable to performing their job functions; officers must be compensated for the time spent even if the gear was put on at home.

The FLSA was enacted to provide a fair day’s pay for a fair day’s work. It takes time, energy and effort to put on and take off law enforcement safety gear. That equipment is undeniably essential to the ability of a police officer to perform the job. Other than a stubborn adherence to outdated shift-scheduling practices, there is no good reason why police officers should not be given time at the start and end of each shift to perform these required tasks.

Counterpoint

By Peter Brown

The United States Supreme Court has explicitly stated that “changing clothes…under normal conditions” is not compensable under the FLSA, citing the Portal-to-Portal Act, an amendment to the FLSA that does not require compensation if an activity is “preliminary” to work. Steiner v. Mitchell, 350 U.S. 247 (1956). This rule applies not only to an office worker who daily must put on a suit and tie or a construction worker who must put on a tool belt and a hardhat to avoid being hit by falling debris, but equally to a police officer who daily must get dressed in his or her uniform and put on gear for safety reasons.

Recently, the Supreme Court issued a ruling addressing the compensability under the FLSA of time spent by poultry workers waiting in line at the employer’s facilities to check out, and then don, an elaborate set of specially-designed protective gear prior to the start of their official work shift. IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). The Alvarez Court ruled that this employee activity, unlike normal getting dressed for work, was an “integral and indispensable” part of the employees’ principal work activities, and thus compensable.

The Court’s decision addressed the unique situation of poultry workers required by their employer daily to perform a cumbersome, time-consuming donning and doffing ritual of special protective gear at an employer-designated locker area prior to the start of the official workday. The Alvarez Court explained that such “integral and indispensable” work activities – daily performed at a time and place of the employer’s choosing – must themselves be deemed “principal” work activities, which must be compensated under the FLSA. In reaching this conclusion, the Court did not break new ground but simply reaffirmed basic FLSA principles.

Even though the Alvarez opinion explicitly reiterated that preliminary activities such as putting on standard uniforms and non-unique protective gear are not compensable under the FLSA, some police officer unions are claiming that Alvarez actually transformed more than half a century’s worth of FLSA jurisprudence and that law enforcement agencies are now required to compensate police officers for daily putting on their uniforms and gear. There are several reasons why this is not so.

If time is too small to record as a practical matter, it is considered de minimis, and need not be compensated under the FLSA. See 29 C.F.R. Section 785.47. In Alvarez, the Court found that the employer required their factory workers daily to wait in line at the employer’s facilities prior to the official start of the work shift to check out elaborate safety gear, including heavy chain-link metal aprons, plexiglass arm guards, as well as special gloves designed to protect employees from sharp blades, saws and bone fragments. In order to be ready to work at the start of their official shift, the employees daily had to arrive on the employer’s premises well before the start of their official work shift.

At the end of their shift, the workers were required to repeat the process all over again (in reverse). The Court determined that the amount of time spent on donning and doffing the gear was sufficiently large to make it administratively feasible to record such time.

Police officer unions are estimating that it takes their officers 20-30 minutes each day to put on an equipment belt and a bulletproof vest. 20-30 minutes!? The officers do not have to wait in line to retrieve this gear from the employer. Neither the belt nor the vest involves a particularly unusual or cumbersome mechanism which would make it particularly difficult or time-consuming to put on. This is not to minimize the importance of the gear or to suggest that officer safety is not paramount. However, an officer’s pre-prepared equipment belt has much of its gear already prepared and included as part of the belt. Certainly, it does not take 20-30 minutes to put on such a belt. Similarly, it is difficult to fathom how putting on a bulletproof vest could take longer than a minute or two.

The only way the police unions can get to 20-30 minutes is by including the time it takes officers to put on their work uniform. But, as already stated, the time it takes an employee to put on his or her shoes, socks, pants, shirt, belt and undergarments is “preliminary” to work and not compensable under the FLSA. The clothes portion of a police officer’s uniform is not specialized protective gear, but rather a uniform like any other public agency employee.

Police Gear Is Not Uniquely Specialized Protective Equipment

In Alvarez, the Court contrasted the specialized protective gear with standard uniforms and non-unique protective gear, such as hardhats, gloves, hairnets, safety glasses, and earplugs, which do not constitute compensable work under the FLSA. The donning of standard issue gear belts and uniforms by police officers constitutes such excluded “preliminary” activity.

Nor are bulletproof vests especially unique, and are commonly worn by private security guards and other workers. Unlike the specially designed equipment required by the Alvarez employees, bulletproof vests simply are not unique enough to be given special treatment under the FLSA.

Police Officers May Don Their Gear At Their Own Convenience

In Alvarez, the employer required its employees to check out and don the protective gear on the employer’s premises. The Alvarez Court held this activity to be “integral and indispensable” to these employees’ performance of their principal work duties, and thus compensable.

Police officers generally are not required to put on their uniforms on the employer’s premises. They can get dressed, at their convenience, either at work or at home, and are not beholden to the employer’s requirement that such uniforms daily be checked in and out at an employer-designated storage area. At worst, they may have to put on their bulletproof vest and gear belt once they get to work. But even for this they do not have to wait in line; they simply go to their own personal locker to retrieve the items at their convenience.

What Will Happen Now? The Courts Will Decide

Notwithstanding the opinions of the advocates, the question of whether police officers will be entitled to be compensated for the time they spend getting dressed and putting on gear will likely soon be addressed by the courts. Police unions have wasted no time in demanding payment for their members and assisting their members in filing lawsuits in federal court to get the issue decided. Although the Alvarez decision reaffirms that the courts will make individualized determinations as to whether an employee’s particular pre-shift activity is compensable under the FLSA, the decisions which will be issued in the next few years will likely shape how police departments nationwide address the issue of compensation for donning and doffing police gear.

NOTE: Peter Brown would like to thank Didier Reiss, an associate with the firm, for his help with this article

This article appears in the December 2006 issue