April 1, 2010
In a long-awaited decision, the Ninth Circuit Court of Appeals has held that the time spent by police officers in donning and doffing uniforms and protective gear is not compensable where the officers have the option of performing the activities away from the employer’s premises (i.e., at home). This appellate level decision comes in the wake of several conflicting district court decisions and provides much needed guidance to law enforcement agencies on this issue.
In Bamonte v. City of Mesa (9th Cir. 2010) Case No. 08-16206, police officers were required to wear the typical police officer uniform and protective gear including a service weapon, holster, chemical spray, baton, etc. While the wearing of body armor was optional, officers were required to have body armor available. The Police Department provided officers with lockers at the station and facilities were available for the officers to don and doff their uniforms and gear at work. However, there was no requirement to don and doff at work and officers had the option of performing these activities at home. The only exception related to motorcycle officers who were required to don and doff their uniforms and gear at home and began their shifts upon leaving their residence.
Lawsuit by Police Officers
Police officers filed litigation against the City alleging that the time spent donning and doffing their uniforms and protective gear was compensable under the Fair Labor Standards Act. In particular, the officers took the position that their uniforms and gear contributed to their command presence and promoted officer and public safety in furtherance of law enforcement goals. The officers also alleged that it was “preferable” for them to don and doff at the police station.
The Court utilized a three-stage inquiry in reviewing the police officers’ allegations as follows: 1) Whether donning and doffing constitutes “work” within the meaning of the FLSA; 2) Whether donning and doffing is an “integral and indispensable” duty; and 3) Whether the time spent donning and doffing is de minimis.
In giving credence to the police officers’ argument that donning and doffing could possibly constitute “work,” the Court proceeded to the second stage of the test. The Court stated that the issue is whether the activity of donning and doffing, which arguably meets the definition of “work,” is an “integral and indispensable” activity that is “necessary to the principal work performed and done for the benefit of the employer.”
The Court contrasted the facts at issue with private sector cases where donning and doffing was held to be compensable. For example, in Alvarez v. IBP, Inc. (9th Cir. 2003) 339 F.3d 894, the Court held that time spent donning and doffing protective gear worn by meat processing plant employees is compensable where the activity is done on-site as required by law, the employer, or the nature of the work.
The Bamonte Court noted that, unlike in Alvarez, the police officers were not required to don and doff their uniforms and protective gear at the workplace. Further, the officers had not identified any legal requirement that would be fulfilled by on-premises donning and doffing. As such, the Court concluded that the officers failed to show that donning and doffing is an “integral and indispensable” activity.
In sum, the Court held that the time spent donning and doffing both the police uniform and protective gear is not compensable where the officers have the option of performing these activities off-site.
One of the three judges hearing Bamonte did not agree with the majority’s opinion relating to the donning and doffing of protective gear. With regard to protective gear, Judge Ronald Gould issued a dissenting opinion concluding that the donning and doffing of protective gear is done primarily for the benefit of the employer in that it assists officers in performing their duties. As such, Judge Gould opined that the location where the donning and doffing of protective gear is only one factor to consider, and believed that the issue should be remanded to the District Court for consideration as to whether these activities were de minimis or not.
Impact of Decision
Bamonte is a significant victory for law enforcement agencies. Going forward, there is the possibility that a petition for rehearing (to the full Ninth Circuit Court of Appeals) and/or a petition for certiorari (to the United States Supreme Court) could be filed. While we do not expect such petitions to succeed, it could take another 8-10 months before the Bamonte case is fully resolved. For the time being, law enforcement administrators and human resource professionals should consider the application of the Bamonte decision to their agencies. In determining whether donning and doffing is compensable, agencies should review policies and practices to determine whether police officers have the option of performing these activities off-site. Further, agencies should consider updating and revising written policies to solidify their ability to defend against donning and doffing claims.