No FLSA Compensation For Firefighters Picking Up Safety Gear From Home Station

Firefighters working for the Menlo Park, California Fire District are issued two sets of turnout pants and coats, made of fire-resistant fabric with reinforced cuffs and reflective stripes, and two bags to store them, so that one is always available while the other set is being laundered. The District issues only one set of the gear that does not need laundering – helmets and hoods, boots, and so forth.

The firefighters are free to take all the gear home with them, and bring it in at the beginning of a shift. But they generally prefer to leave their gear in the fire station, because of the bulk and dirt, and concerns about exposing their families to the materials on soiled gear. The District maintains seven fire stations spread over a 30-square mile area within San Mateo County.

From time to time, firefighters work a shift in a fire station other than their home station. That happens, for example, if a firefighter at another station calls in sick or is on vacation, leaving the station understaffed.

Firefighters sign up to be called for visiting shifts when necessary, so assignments are often voluntary, although a firefighter may also be ordered to work at another station when necessary. These temporary assignments are lucrative because if a firefighter worked his two-day shift at his home station, he is paid at time and a half for overtime on the visiting shift. The call for a visiting shift may come in either when he is at his station or when he is home off duty. A firefighter may be told during his shift that another firehouse could use him, perhaps the next day. Then he can just load his turnout gear into his car after his shift at the home station. He will get paid when he reports at the beginning of the shift at the visiting station, with his gear. If he leaves his gear at his home station and has to pick it up for use at the visiting station, he does so on his own time and will not get compensated for that.

Other than the emergency calls, if the firefighter has to drive to his station to get his gear and drive over to the visiting station, he spends a half hour or so doing that without compensation. This time is compensated in emergency situations because overtime starts from the phone call, but not when the firefighter volunteers for overtime at a visiting station. If he prefers not to take his gear home with him, he may spend another half hour or so driving his gear to his home station and dropping it off.

A group of firefighters sued the District, seeking compensation under the Fair Labor Standards Act (FLSA) for the time spent driving to their home stations to pick up their gear. The District resisted the lawsuit, taking the position that if the firefighters did not want to spend their own time getting their gear, they did not have to, because they were entitled to take it home with them and have it available without the need to retrieve before going to the visiting station.

The federal Ninth Circuit Court of Appeals agreed with the District. The Court’s general philosophy was stated at the outset of its opinion: “Most work requires people to do some things before they start that they would not do otherwise. A construction worker may put on steel-toed boots less comfortable than the shoes he wears to the mall on Saturday and load up his tools in his car. A lawyer may put on a suit and tie that he does not wear to the mall on Saturday. And both, like many other workers, may drive to their work locations, park, and walk to where they work, before they go on the clock. And both may, as a formal or practical matter, be required to do these things for work, even though they do not get paid for them. So what counts as compensable work, what counts as overtime?”

The Court found that the Portal-to-Portal Act amendments to the FLSA excluded from compensation commuting time and activities that are “preliminary” or “postliminary” to the “principal activities” that the employee “is employed to perform.” The Court held that under a recent Supreme Court decision known as Integrity Staffing, “it is not enough to make activity compensable under the FLSA that the employer requires it and it is done for the benefit of the employer. Even activities required by the employer and for the employer’s benefit are preliminary or postliminary if not integral and indispensable to the productive work that the employee is employed to perform. An activity is integral and indispensable to the principal activities that an employee is employed to perform – and thus compensable under the FLSA – if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.

“When the firefighter has put his name on the list for overtime calls, he is free to take his gear home, and if he gets a call, he can go to the visiting station for the assigned shift without even stopping by his home station. Thus, driving to the home station first is not indispensable to the firefighters’ principal activities. If the firefighter has come to work early, as the firefighters’ evidence suggests they sometimes do, and then must spend what was expected to be leisure time before the shift, gathering and transporting turnout gear to a visiting station, that activity is ‘preliminary’ because it is not intrinsic to the firefighting activity that he is employed to perform.

“The FLSA says expressly what firefighters are employed to do: they are employed by a fire department of a municipality, have the legal authority and responsibility to engage in fire suppression and are engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. Loading up turnout gear to report to a shift at a visiting station is two steps removed from that activity, not integral and indispensable to it.”

Balestrieri v. Menlo Park Fire Protection District, 2015 WL 5166732 (9th Cir. 2015).