Police officer “donning and doffing” cases – lawsuits under the Fair Labor Standards Act seeking compensation for putting on and taking off required police equipment and uniforms – have received uneven treatment in the courts. One federal court of appeals – the Ninth Circuit – has ruled that donning and doffing is not compensable work if the employer allows officers to don and doff at home. A trial court in Colorado rejected the Ninth Circuit’s rationale, producing a multi-million-dollar settlement on behalf of Denver police officers.
Now the federal Second Circuit Court of Appeals has weighed in, clearly opening the door to more donning-and-doffing litigation. The lawsuit was filed by Urban Park Rangers employed by New York City’s Department of Parks & Recreation. The rangers are employed to perform a range of public services in the City’s parks, including “providing directions and other information to persons seeking to use parks or pools; providing assistance to those persons involved in accidents or those who may be victims of unlawful activity and investigating such accidents or activity; implementing crowd control procedures at special events; providing safety and educational information to the public; and issuing summonses to or making arrests of persons suspected of unlawful conduct” under “laws, including New York City rules and regulations, governing use of the parks and pools.”
During a shift, rangers are required to wear uniforms comprising both professional clothing and equipment. The professional clothing includes “olive drab” pants and jacket, “‘Smokey the Bear’ style hats,” and various Parks Department insignias, while the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder. The rangers’ estimates of the time needed to don and doff those uniforms each day range from approximately five to 30 minutes.
When a trial court ruled that the donning and doffing of uniforms was not compensable work under the FLSA because the activity was not integral and indispensable to the rangers’ principal activities, the rangers appealed. The Second Circuit reinstated the lawsuit, and ordered the matter returned to the trial court for more hearings.
The Court held that “an activity qualifies as integral if it is intrinsically ‘connected with’ a principal activity that an employee was hired to perform. An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform 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.
“This Court and others have concluded that an employee’s pre- and post-shift preparation of items used to perform principal activities can qualify as integral and indispensable. In one case, for example, the Supreme Court held that a slaughterhouse employee’s knife sharpening was integral and indispensable to the principal activity of butchering. In another case, we concluded that a reasonable factfinder might classify a radiological technician’s powering up and testing of an x-ray machine as integral and indispensable to the principal activity of taking x-rays. And in yet one more case, we decided that a K-9 officer’s feeding, walking, and training of his dog was integral and indispensable to his principal law enforcement activities. All of these activities occurred before or after regularly scheduled shifts, or during lunch breaks. Courts have also concluded that an employee’s pre- and post-shift efforts to protect against heightened workplace dangers can qualify as integral and indispensable.
“We think that a reasonable factfinder could conclude that the rangers’ donning and doffing of uniforms are integral and indispensable to their principal activities as rangers. The donning and doffing of a ranger’s uniform are activities undertaken for the employer’s benefit, with no choice on the employee’s behalf. The Parks Department prescribes the components of the uniform in painstaking detail, and rangers may be disciplined for non-compliance. Relatedly, substantial evidence in the record indicates – and we therefore assume at this stage of the proceedings – that the Parks Department requires rangers to don and doff their uniforms at the workplace, another factor that suggests those tasks may qualify as integral and indispensable.
“More fundamentally, the uniforms appear to be vital to the primary goals of the plaintiffs’ work during a shift. A ranger’s utility belt holds items used to perform law enforcement duties. A summons book is, of course, necessary for the issuance of summonses. A baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a radio and flashlight may prove crucial in tracking suspects and coordinating with other municipal employees. We are inclined to classify these items as tools of a ranger’s trade, arguably analogous to a butcher’s knife, a radiological technician’s x-ray machine, or a K-9 officer’s dog. Therefore, we think that a reasonable factfinder could conclude that the donning and doffing of a ranger’s utility belt are integral and indispensable tasks.
“A ranger’s bulletproof vest more closely resembles the type of protective gear analyzed in other cases. Like the helmets, safety glasses, and metal mesh at issue in those decisions, the vest is not a tool used to perform principal activities; rather, the record indicates that it functions solely to protect against risks collateral to those activities. We have recognized that the use of such protective gear may be integral and indispensable to an employee’s principal activities where it guards against workplace dangers that transcend ordinary risks. The risk of sustaining gunfire while enforcing municipal laws is not, in our view, an ordinary risk of employment.”
Perez v. City of New York, 2016 WL 4087216 (2d Cir. 2016).
Note: Where the Second Circuit parted company with the Ninth Circuit was in how it approached the significance of the ability to don and doff at home. Where the Ninth Circuit found that such an ability rendered donning and doffing non-compensable, the Second Circuit found it to be only one of many factors, and not necessarily the most important factor, in determining whether donning and doffing is compensable work.