New Controversy On Donning And Doffing

In Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010), a divided panel of the federal Ninth Circuit Court of Appeals held that the donning and doffing of police uniforms and equipment is not compensable work under the Fair Labor Standards Act unless the employer requires that the donning and doffing occur on the employer’s property. Perhaps presaging that more controversy over the issue awaits in the future, the first court to consider the issue in an area of the country not covered by the Ninth Circuit has reached the opposite conclusion, and has ruled that Denver police officers should be compensated for donning and doffing even if the employer does not mandate that the activity occur at the worksite.

As the Denver court saw the issue, “the option to change away from the duty station is not determinative. The principal activity of the patrol officers is policing the community. The police uniform is not clothing in any ordinary sense. It is the visible sign of authority and an essential element of the officer’s ability to command compliance with his commands and directives. It is analogous to the judicial robe. The uniform includes the equipment that are the tools that enable the officer to use physical force, including deadly force, for the protection of himself and others as circumstances require.”

The City of Denver argued that clothes changing activities are excluded from compensation under Section 203(o) of the FLSA, which excludes from compensation “any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee.” The Court rejected the City’s argument, reasoning:

“Collective bargaining agreements between the City and the Denver Police Protective Association have been in effect since January 1, 1996. Officers have never been compensated for donning and doffing their uniforms and personal equipment. The City contends that this history of non-compensation shows an established custom or practice under the contracts. That argument is not persuasive. Silence in collective bargaining is not the equivalent of a custom or practice of non-compensability.”

Rogers v. City and County of Denver, 2010 WL 1904516 (D. Colo. 2010).

This article appears in the August 2010 issue