“Donning and Doffing” Police Uniforms and Protective Gear Under the Fair Labor Standards Act
By Richard G. Schott, J.D.
Congress passed the Fair Labor Standards Act (FLSA) in 1938 in an effort to relieve unemployment brought on by the Great Depression. To accomplish this, the legislation required (and still requires) employers to pay overtime wages to covered employees working more than 40 hours during their work week.1 Recognizing that law enforcement is not a 9-to-5 job and, therefore, does not lend itself to a traditional 40-hour workweek, the FLSA allows law enforcement agencies to use a different pay period for its sworn personnel.2
While this so-called 7K allowance gives police employers flexibility in scheduling, it does not relieve them of all overtime payment obligations. For example, the lengthiest pay period allowed under 7K provides that employees working more than 171 hours in a 28-day pay period are legally entitled to time-and-a-half (one-and-a-half times their regular hourly wage) for all hours in excess of 171. Because of this, employers always must recognize which activities engaged in by their employees go into the calculation of hours worked.
In recent years, the most hotly contested issue confronting law enforcement agencies has been whether the time spent “donning and doffing” the police uniform and other protective gear goes into the calculation of hours worked during any given pay period. If a department learns that it is legally obligated to pay every uniformed officer for the time spent donning and doffing the uniform and protective gear required during their shift (and this is repeated for 3 shifts per day and for 365 days every year), it has to take this new financial obligation into account for scheduling and budgetary purposes. Resolving whether agencies must pay officers for these activities preceding and following their actual shift assignment has significant fiscal implications.
This article examines the recent Supreme Court decision involving the issue of donning and doffing in a non-law enforcement context which stoked this controversy, and it will discuss several lower federal court opinions that have explored whether the Supreme Court ruling applies to law enforcement officers. Familiarity with these lower court decisions involving law enforcement personnel may affect departmental policies that address uniform and equipment issues.3
Special Agent Schott is a legal instructor at the FBI Academy.
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
“...employers always must recognize which activities engaged in by their employees go into the calculation of hours worked.”
Abbe v. City of San Diego
In Abbe v. City of San Diego,21 more than 1,000 San Diego, California, police officers sued the city for, among other things, a claim that their time spent donning and doffing police uniforms and safety gear had to be compensated under the FLSA. The plaintiffs contended that they were “entitled to compensation for time spent donning and doffing their uniform (including uniform and safety gear) because such activity is an integral and indispensable part of the principal activities for which they are employed.”22 While conceding that the uniform is essential to the discharge of law enforcement duties, the city contended that it did not have to compensate for such donning and doffing because such activities did not have to be done at work.23 The court ruled that the city was entitled to summary judgment because “there is nothing about the process of donning and doffing a class ‘B’ uniform that must be done at work in order for an officer to safely carry out his or her law enforcement duties.”24 In making its ruling, the court pointed out that it had “been directed to no evidence suggesting Plaintiffs are required by law, policy, or the nature of their work to don and doff their uniform or safety equipment at work....”25
Lemmon v. City of San Leandro
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
“Many...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.”
In Wright v. Pulaski County, a case decided on the same day and by the same judge who ruled on the Musticchi case, a group of Pulaski County, Arkansas, Regional Detention Facility (PCRDF) correctional officers lost in their bid to be compensated for donning and doffing.50 Again, “the County [did] not require PCRDF employees to don or doff their uniforms and safety gear at work, and the record contain[ed] no evidence that the nature of Plaintiffs’ work, safety concerns, laws, or anything else necessitate[d] that PCRDF employees don uniforms and safety equipment at work.”51 The only unique aspect of the case was that the deputies also were required to wear a radio and body alarm that they obtained only after arriving for work, and it was unclear whether they were paid for the time it took to obtain those items. However, the court found that the time spent obtaining them was de minimus and, therefore, not compensable under the FLSA. Citing Supreme Court precedent, the judge explained a de minimus amount of time by stating that “[when] the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles must be disregarded.”52
Mory v. City of Chula Vista
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
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.