First Police ‘Donning And Doffing’ Decisions Arrive

In 2005, the United States Supreme Court held in IBP v. Alvarez, 546 U.S. 21 (2005), that the time spent by employees in a meat processing plant putting on and taking off (or “donning and doffing”) protective equipment and clothing was compensable work under the Fair Labor Standards Act (FLSA). In fairly short order, lawsuits filed by police officers began springing up around the country alleging that the time spent donning and doffing police uniforms and protective gear should also be compensated under the FLSA.

The first three law enforcement donning and doffing cases are now in, and deeply conflict. At issue in each case was whether, in the terms of the FLSA, donning and doffing was an “integral and indispensible part of the principal activities for which the employees were employed.” The most common definition of whether an activity is “integral and indispensible” to an employee’s primary duty is whether the activity is (1) necessary for the performance of the employee’s “principal” work; and (2) done for the benefit of the employer.

In the first of the three cases, Martin v. City of Richmond, a court held that while a patrol officer’s equipment such as a bullet-resistant vest, gun belt, pepper spray, taser, and the like, were integral and indispensible to the performance of a police officer’s job, the same could not be said of the uniform. In a decision that was surprising to many, the Court held that “a police officer’s uniform, in and of itself, does not assist the officer in performing his duties.”

In the second of the cases, Abbe v. City of San Diego, the Court took a different tack. In Abbe, the Court found that “the relevant inquiry is not whether the uniform itself or the safety gear itself is indispensible 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. Since the police officers in Abbe were allowed to dress either at the police station or at home, the Court found that the option to dress at home made the donning and doffing activity non-compensable under the FLSA.

The third judge to address the issue, Federal District Court Judge Marilyn Hall Patel, disagreed with both Martin and Abbe. As to whether the police uniform is necessary to a patrol officer’s job, Judge Patel held that “a patrol officer cannot effectively do her job without her uniform. Although an officer may perform some of her duties without the uniform, she cannot perform all of her required duties without the uniform. For instance, officers must be in full uniform for the lineup or while on patrol. Furthermore, though it is theoretically possible for a police officer to do her job without her uniform – as in the case of undercover police officers – it would be a practical absurdity to eliminate uniforms due to the myriad benefits that officers and the department obtain simply because officers are in uniform. Specifically, police uniforms are special because the uniform itself forms part of the equipment. Unlike practically any other profession, the police uniform is part of the continuum of force. The distinguishing characteristic of the police uniform makes it necessary to the principal work performed. It is of great consequence that these ‘clothes’ are the particular color and design that afford the wearer special powers and deference in our society.”

Judge Patel also disagreed with Abbe’s conclusion that the fact that the employer allowed employees to don and doff the uniform at home somehow impacted compensability of the work under the FLSA. Judge Patel held “if the officers here were explicitly required to don and doff at the station, then the donning and doffing would clearly be compensable. There is no explicit requirement that the preliminary or postliminary activity take place on the employer’s premises for the work to be compensated under the FLSA. This Court, therefore, refuses to inject a location limitation into the analysis for finding compensability under the FLSA. In any event, most officers don and doff at the station in practice – this is strong indicia that the donning and doffing of the uniform at the police station is a de facto requirement. This finding is further buttressed by the lockers the Department provides to each officer.”

Martin v. City of Richond, 2007 WL2317590 (N.D.Cal. 2007); Abbe v. City of San Diego, 2007 WL 4146696 (S.D.Cal. 2007); Lemmon v. City of San Leandro, 2007 WL 4326743 (N.D.Cal. 2007).

NOTE: Will Aitchison, the editor of Public Safety Labor News, argued the Lemmon case on behalf of the officers bringing the lawsuit.

This article appears in the February 2008 issue