FLSA Does Not Require Donning/Doffing Pay If Employer Permits Activity To Be Performed At Home

The first federal Court of Appeals decision on compensability of donning and doffing has been decided by the Ninth Circuit Court of Appeals. The case involved a claim brought by police officers working for the City of Mesa, Arizona.

In a 2-1 decision, the Ninth Circuit held that if an employer permits the activity of donning and doffing to be performed at home, it need not compensate employees for what would otherwise be compensable work under the FLSA. Quoting from a lower court’s decision, the Court held “it is important to note that the relevant inquiry is not whether the uniform itself or the safety gear itself is indispensable to the job – they most certainly are – but rather, the relevant inquiry is whether the nature of the work requires the donning and doffing process to be done on the employer’s premises. In this case, the officers identify no obligation on either side that would be fulfilled by on-premises donning and doffing. The officers urge conclusion of compensability primarily for the reasons that were of sole benefit to the employee (risk of loss or theft of uniforms, potential access to gear by family members or guests, risk of performing firearm checks at home, discomfort while commuting, risk of being identified as officer while off duty, and risk of exposing family members to contaminants and bodily fluids from encounters in the line of duty).

“The officers urge that they be compensated because of their preference to don and doff at the workplace, not due to any of the factors set out in our prior opinions. The officers make absolutely no claim that donning and doffing the protective gear were done for the benefit of the employer.”
A dissenting judge argued: “I would not announce a bright-line location rule that controls the compensability of preliminary and postliminary activities under the FLSA. The location where an activity is performed is just one of many useful tools in the fact-sensitive compensability analysis.”

Bamonte v. City of Mesa, 2010 WL 113492 (9th Cir. 2010).

This article appears in the June 2010 issue