The literal definition of don is “to put on (an article of clothing),”⁴ while the literal definition of doff is “to remove (an article of wear) from the body.”⁵ Employees in most occupations do not expect pay for putting on or removing their clothing in preparation for or following their workday. Many people in law enforcement and the unions that represent them feel that there is a uniqueness to the donning and doffing of a police uniform and the accompanying protective gear that entitles them to be paid for these activities. Their argument gained momentum following a recent Supreme Court decision.

In IBP, Inc. v. Alvarez, the U.S. Supreme Court considered claims made in consolidated cases by employees of a meat processing facility in one instance and workers in a poultry processing plant in the other.⁶ The defendant in the first of the consolidated cases was IBP, Inc., a large producer of beef, pork, and related products. Its production workers must wear outer garments, hard hats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, also must wear a variety of protective equipment for their hands, arms, torsos, and legs, including metal aprons, vests, arm guards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms where most of them don their protective gear.⁷ In 1988, IBP began to pay these employees for four minutes of clothes-changing time.⁸ In 1999, IBP employees filed a class action lawsuit to recover compensation for their preproduction and postproduction work, including the time spent donning and doffing protective gear, and for the time spent walking between the locker rooms and the production floor both before and after their assigned shifts.⁹

In the second of the two consolidated cases considered by the Supreme Court, a group of current and former employees of Barber Foods, Inc. brought an action against Barber to receive compensation for time spent donning and doffing required protective gear and for time spent walking to and waiting at their assigned work areas.¹⁰ Barber operates a poultry processing plant in Portland, Maine, which employs approximately 300 people. The employees perform a variety of tasks requiring different combinations of protective clothing. However, they are paid hourly only after punching into computerized time clocks at the entrances to the production floor, and this occurs after the donning of the protective clothing.

Based on the appeal presented in the IBP fact pattern, the Supreme Court did not have to consider whether the donning and doffing of the equipment at issue was covered under the FLSA. Rather, “IBP [did] not challenge the holding below that...the donning and doffing of unique protective gear are ‘principal activities’ under § 4 of the Portal-to-Portal Act”¹¹ and, therefore, covered by the FLSA. Further, the Court was not asked to consider the accepted proposition that the donning and doffing of nonunique gear are categorically excluded by the same Portal-to-Portal Act.¹²

Congress passed the Portal-to-Portal Act in 1947 in direct response to Supreme Court decisions mandating that employees be compensated for any time during which they are required to be on their employer’s premises, on duty, or at a prescribed workplace. In a 1946 case,¹³ the Court held that this included the time “necessarily spent by employees walking from time clocks near the factory entrance gate to their workstations.”¹⁴ With the passage of the Portal-to-Portal Act, Congress excepted two activities that had been found to be compensable by the Supreme Court: one, walking on the employer’s premises to and from the actual place of performance of the principal activity of the employee and two, activities that are “preliminary or postliminary” to that principal activity.¹⁵

When considering the Barber fact pattern, the Supreme Court again left undisturbed the proposition that donning and doffing gear that is “integral and indispensable” to employees’ work is a principal activity and, thus, covered by the FLSA. Therefore, the only issue left for the Supreme Court to decide was whether the wait time following the donning and doffing fell under the FLSA.¹⁶ While the Supreme Court did not explicitly consider the time spent actually donning and doffing—as opposed to time waiting to do that or for walking following it—its tacit confirmation that the time spent doing it is compensable set the law enforcement argument in motion.

No one disputes that the police uniform and protective gear are important, but that does not necessarily mean that the time spent donning and doffing these items is compensable under the FLSA. The issue is whether the police uniform and protective equipment are “integral and indispensable” to performing the job and, therefore, if the time spent donning and doffing them are compensable activities. If they are “integral and indispensable,” then the donning and doffing of them are not excepted preliminary and postliminary activities as described in the Portal-to-Portal Act, and, therefore, the time spent doing them must be compensated.

Law Enforcement Cases

The IBP case triggered a spate of law enforcement cases addressing the donning and doffing issue. Each will be examined briefly, followed by an analysis of the results.

Martin v. City of Richmond

In Martin v. City of Richmond,¹⁷ an officer of the Richmond, California, Police Department brought a lawsuit on behalf of himself and other similarly situated officers seeking compensation for the donning and doffing of their uniforms, as well as for required safety and protective gear.¹⁸ The city sought summary judgment, which would preclude a trial on the matter, based on the claim that it did not have to compensate its officers for these activities because the police department allowed them to don and doff their uniforms and safety equipment at home. After a lengthy discussion on the department’s policy allowing officers to don and doff at home, the court ruled that summary judgment was appropriate on the uniform issue as “Plaintiff and his fellow consenting officers [were] not entitled to compensation for the time they spend donning and doffing their police uniforms.”¹⁹ However, the court found summary judgment to be inappropriate on the “duty equipment” portion of the lawsuit because in spite of the “Defendant’s formal policy of permitting officers to put on and take off their protective gear at home...there was a triable issue of fact...about whether the ‘nature of [a peace officer’s] work’ actually requires them to don and doff their gear at the station.”²⁰

The issue in Lemmon v. City of San Leandro²⁶ was whether San Leandro, California, police officers were entitled to compensation for the donning and doffing of their Class B uniforms. Relevant factors argued by the officers and the agency included the department’s claim that officers had the option of donning and doffing at home based on there being “no written policy allowing the officers to don and doff at home, or conversely, requiring the officers to don and doff at the station”;²⁷ the fact that the department “does provide lockers to police officers in which officers may store uniforms, equipment and personal items”;²⁸ and, finally, that “most officers don and doff entirely at the police station.”²⁹

The court ruled in this instance that the time spent donning and doffing the uniform and protective gear was compensable because the “integral and indispensable nature of the donning and doffing makes those activities principal to a police officer’s duties.”³⁰ In this case, the court did not look to the location of the donning and doffing in making its decision. Rather, the nature of the uniform and equipment alone made their donning and doffing compensable. The court did point out, however, that if officers chose to don at home, their commute time did not then become compensable.³¹

Maciel v. City of Los Angeles

Among many FLSA issues litigated in Maciel v. City of Los Angeles³² was the donning and doffing of personal safety equipment.³³ Finding that the donning and doffing of this personal safety equipment was work done for the benefit of the Los Angeles Police Department (LAPD), the court deemed it compensable. The court pointed out that “most officers are required to wear their personal safety equipment while on duty” and “that for all practical purposes, the equipment must be donned and doffed at the assigned station,”³⁴ noting LAPD’s desire to have such activity take place onsite and that officers are discouraged from wearing their uniforms while off duty.³⁵ The court further ruled that this time was compensable because the time spent doing these activities was not de minimus.³⁶

Valladon v. City of Oakland

In Valladon v. City of Oakland,³⁷ the issue of donning and doffing the uniform and protective gear was treated as a single activity. The court, after accepting the notion “that donning and doffing of police uniforms and gear is not, as a matter of law, compensable under the FLSA where neither the law, the employer’s rules, nor the nature of the work requires officers to don and doff on police premises,”³⁸ refused to grant summary judgment on the issue. The court found a material issue of fact surrounding the officers’ ability to dress at home even though police department policy officially permitted plaintiffs to don and doff there.

Bamonte v. City of Mesa

In 2010, with these lower court cases as a backdrop, the Ninth Circuit Court of Appeals weighed in on the issue in the case of Bamonte v. City of Mesa³⁹ and held that because the employer in this case did not require that the donning and doffing occur at the workplace, these activities were not compensable work. The circuit court of appeals adopted a bright-line rule for whether donning and doffing is compensable—the location where it is performed—after an analysis of governing statutes, Department of Labor interpretations,⁴⁰ their own circuit precedents, and other analogous cases.⁴¹ In this case, “[n]o requirement of law, rule, the employer, or the nature of the work mandate[d] donning and doffing at the employer’s premises.”⁴²

Dager v. City of Phoenix

Following the Ninth Circuit Court of Appeals decision in Bamonte, courts have consistently applied that court’s rationale in rejecting claims by law enforcement officers that the donning and doffing of their uniform and protective gear is compensable. For example, in Dager v. City of Phoenix,⁴³ officers from the Phoenix, Arizona, Police Department lost their argument that they were entitled to compensation for their donning and doffing of the uniform and protective gear. As was the situation in the Bamonte case, the city maintained lockers for patrol officers at the various stations for them to store uniforms and equipment “but did not require that the officers change at the work site.”⁴⁴

Reed v. County of Orange

Similarly, in Reed v. County of Orange,⁴⁵ the district court held that sheriff’s deputies from Orange County, California, were not entitled to compensation for their donning and doffing time. Again, the decision rested on the location of the activitiy. In fact, the court pointed out that “the County’s rule manual directs many of its deputies to change into and out of their uniforms at work, but that policy does not apply to all deputies, and even with respect to those to whom the policy does apply, it is not followed by many of them.”⁴⁶

Musticchi v. City of Little Rock

At least one federal court not bound by the Ninth Circuit Court of Appeals’ rulings has now adopted the reasoning of Bamonte. In Musticchi v. City of Little Rock, a group of Little Rock, Arkansas, police officers alleged entitlement to compensation for their time spent donning and doffing the Little Rock Police Department (LRPD) uniforms and equipment.⁴⁷ Recognizing that neither the Eighth Circuit Court of Appeals nor any district court in that circuit had ruled on the matter, the district court pointed to the Ninth Circuit’s rulings in Bamonte and Dager as “helpful precedent.”⁴⁸ The court, not surprisingly, held that the time spent by Little Rock officers donning and doffing their uniforms and equipment was not compensable. As in the Bamonte and Dager cases, “[n]either the law nor the LRPD requires officers to change at the station. Instead, the LRPD gives officers the option to change at home or at changing facilities provided by the LRPD. However, most officers choose to don and doff at home.”⁴⁹

Wright v. Pulaski County

In Mory v. City of Chula Vista,⁵³ the plaintiff brought her claim in the Southern District of California seeking compensation for overtime she allegedly worked as a police officer before being terminated in 2008. Among her claims for compensation was time spent donning and doffing her uniform and related gear. Arising in the Southern District of California, the district court judge found the Ninth Circuit Court of Appeals decision in Bamonte controlling. The plaintiff’s attempts to distinguish her situation from that litigated in Bamonte fell on deaf ears. The judge simply pointed out that neither of the state statutes identified by the plaintiff in support of her argument required “California law enforcement officers to don and doff their uniforms and related gear on their employers’ premises.”⁵⁴

Conclusion

Federal courts, especially in the western part of the United States, have addressed the issue of donning and doffing in the context of law enforcement departments numerous times. A common theme runs throughout the decisions—as an old real estate adage says, it usually is all about “location, location, location.” Simply stated, if there is a law, custom, or department policy mandating that the uniform and equipment be donned and doffed on premises, compensation for those activities will be required. Conversely, if no such law, custom, or policy exists, then no compensation will be required, even if the donning and doffing take place onsite for the convenience of the officers. Departments should take a close look at their uniform and equipment policies, specifically as to the donning and doffing of these important items, to determine how the policies may affect their financial obligation to compensate for these activities.