Donning & Doffing: Compensable or Not Compensable – 2013

Recent Decision on Donning and Doffing of Police Uniforms and Equipment

General Counsel’s Office, I.U.P.A.

A California Court recently issued one of the first decisions involving the “donning and doffing” (i.e. changing) of police uniforms and equipment.  Martin v. City of Richmond, 2007 WL 2317590, (N. D. Cal. Aug 10, 2007) (NO. C 06-06146 CRB).  In a split decision, the Court held that the donning and doffing of uniforms was not compensable, while the donning and doffing of equipment may be compensable if officers were required to do so at the police station.

The officers sued the City of Richmond for compensation for donning and doffing their police uniforms and their duty equipment.  The City argued that since it allowed officers to put on their uniforms and duty equipment at home, the officers were not entitled to compensation for this donning and doffing even if it occurred at work.

The Court distinguished between the officers’ uniforms (such as cloths and footwear), and the officers’ “duty equipment” (such as badges, holsters, firearms, and bullet-proof vests).  The Court found that officers were not entitled to compensation for donning and doffing their police uniforms, whether at work or at home.  The Court explained that “no matter how helpful or socially significant a particular outfit might be to the performance of an employee’s duties, the law rejects the idea that donning and doffing of mere clothes is enough to establish an employee’s right to compensation under the FLSA.”

However, the Court ruled that a trail was necessary to determine whether officers were entitled to compensation for donning and doffing their duty equipment.  The Court held that the FLSA would require compensation, even though the City allowed officers to change duty equipment at home, if as a practical matter the officers were compelled to put on and off the duty equipment at work.  In this case, the officers had provided evidence that they could not practically put on their protective gear at home, and that the vast majority of officers put on their gear at the station, while the City had provided evidence that the officers could and did change gear at home.  Because of this factual dispute, the Court held that a trial was necessary to determine “whether the ‘nature of [a peace officer’s] work’ actually requires them to don and doff their gear at the station.”

While this case provides some guidance to officers, the law in this area is still very unsettled and the outcome of the cases is very dependent on the individual facts.  If union leaders or their counsel have questions regarding whether given time is compensable, they can contact the I.U.P.A. General Counsel’s Office at 800-247-4872.

 

2013 Update

By Ryan Burton, Associate General Counsel

This issue has continued to be heated and heavily contested.  Just four months after the decision in Martin, the same district court in California rejected the reasoning in MartinSee Lemmon v. City of San Leandro, 538 F.Supp.2d 1200 (N. D. Cal. 2007).  The Court in Lemmon summarized its position by stating, “this court holds that the time spent donning and doffing the required uniform and gear is compensable under the FLSA. The integral and indispensable nature of the donning and doffing makes those activities principal to a police officer’s duties.” Id. at 1209.

In 2010, however, the U.S. District Court of Appeals for the 9th Circuit (encompassing California, Arizona, Nevada, Oregon, Washington, Hawaii, Alaska, Guam, and the Mariana Islands) rejected the holding in Lemmon, again holding that “because the officers had the option to don and doff their uniforms and related gear at home and only changed at the police station as a matter of preference, the officers’ on-premises donning and doffing of their uniforms and related gear were not compensable under the FLSA.” Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010).

The Bamonte decision has subsequently been followed by district courts in California.  See Mory v. City of Chula Vista, 2010 WL 3748813 (S. D. Cal. 2010); Espinoza v. County of Fresno, 2011 WL 3359632

E. D. Cal. 2011).

Additionally, other jurisdictions have also followed Bamonte, holding that donning and doffing of police uniforms is not compensable under the FLSA, specifically when officers have the option to don and doff away from the employer’s premises. See Musticchi v. City of Little Rock, 734 F.Supp.2d 621, (E. D. Ark. 2010) (included in the U.S. 8th Circuit Court of Appeals: Arkansas, Missouri, Nebraska, Iowa, Minnesota, South Dakota, and North Dakota). See also Edwards v. City of New York, 2011 WL 3837130, (S.D.N.Y. 2011) (included in the U.S. 2nd Circuit Court of Appeals: New York, New Hampshire, and Connecticut).

However, a federal district court in Colorado (included in the U.S. 10th Circuit Court of Appeals: Colorado, New Mexico, Utah, Wyoming, Kansas, and Oklahoma) failed to hold in-line with the Bamonte reasoning that donning and doffing was not compensable.  See Rogers v. City and County of Denver, 2010 WL 1904516 (D. Colo. 2010). The district court refused to dismiss the case in its preliminary stages and indicated that it would hold donning and doffing time as compensable.

This issue continues to be heavily litigated.  While several jurisdictions have held that donning and doffing of police uniforms is not compensable under the FLSA, courts within those jurisdictions have waivered back and forth on this notion.  Additionally, while several jurisdictions have followed the 9th Circuit, many more have yet to weigh in. The wavering of the 9th Circuit and strong opinion in Lemmon may provide ammunition for litigation in undecided jurisdictions.

The I.U.P.A. continues to monitor this issue and will provide further updates as this matter continues to develop.  As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

Legal Update – February 2013

International Union of Police Associations

MEMORANDUM

From:   Ryan Burton, Associate General Counsel I.U.P.A.

To:       I.U.P.A. Locals

Re:       Legal Updates

 

The General Counsel’s Office is committed to keeping the members of the I.U.P.A. informed regarding legal issues of concern to Law Enforcement. Over the years, the General Counsel’s Office has amassed considerable research and drafted numerous updates on the most pressing legal issues and landmark cases facing Law Enforcement Officers today.  Many of the I.U.P.A.’s past publications are still very relevant and discuss issues which are extremely important for Law Enforcement Officers around the country. The General Counsel’s Office will be updating past publications in order to keep I.U.P.A. members informed and up to date on the current state of the law regarding these issues.  One such publication is being re-released this month with an update for 2013.

Enclosed you will find a Legal Update from 2006 examining competing theories over the level of GarrityRights afforded to Officers in different jurisdictions.  When this Update was released, a Georgia Appeals Court had recently addressed the degree with which Garrity Rights would be afforded in the State.  This Legal Update examines that Court’s decision, how Garrity Rights should be applied in order to provide the maximum protection for Officers under investigation, and the current state of the law in this jurisdiction. This is still pressing issue, as there is still a divide amongst the States regarding the level of Garrity protection afforded to Law Enforcement Officers.  Be sure to keep up to date with this and other issues in your jurisdiction.  Also, please contact the General Counsel’s Office with questions or if you would like more information on this or other topics.

Favorable Garrity Analysis Adopted by Georgia

By Aaron Nisenson, I.U.P.A. General Counsel

The Court of Appeals for Georgia issued a decision on September 1, 2006, adopting a favorable standard for determining whether Garrity immunity applies to statements given by law enforcement officers.  State v. Aiken, 2006 WL 2535046 (Ga. App.).  Generally, in order for a statement to be excluded from use in a criminal prosecution, the statement must be compelled by a threat of termination or other serious employment action.  A question arises if there is no explicit threat of termination.  Under the favorable “Friedrick analysis,” a statement would be protected if the officer subjectively believed that he would be terminated if he did not give a statement, and this fear was objectively reasonable.

In the Aiken case, the Georgia Court of Appeals came down firmly in favor applying the Friedrick analysis.  In Aiken, a state probation officer sought to exclude a statement that he gave to an internal affairs investigator.  Aiken gave the statement after being required to sign a Notice of Interference with On-Going Internal Investigation, which threatened Aiken with discipline if he communicated with anyone about the interview.  However, Aiken was not given a Garrity warning which explicitly directed him to give a statement or be terminated.  The Court ruled that because the Defendant conceded he had not been explicitly threatened with termination,

The question then is whether the statements were properly excluded applying the two-step analysis stemming from United States v. Friedrick, 842 F.2d 382 (D.C.Cir.1988). As we explained in Stinson,

In Friedrick, the D.C. Circuit held that statements should be excluded under Garrity, if (1) the defendant subjectively believes that he must answer questions or lose his job, and (2) this subjective belief is objectively reasonable.

The Court then ruled that the trial court had properly excluded the Officer’s statement finding that the Officer had subjectively believed he would lose his job if he did not give a statement, and this fear was objectively reasonable and created by the department.  In a finding that may be helpful elsewhere, the Court stated that, “the circumstances surrounding the interview, including requiring Aiken to sign the Notice of Interference with On-Going Investigation immediately prior to the interview, constituted sufficient action by the Department to provide an objectively reasonable basis for Aiken’s belief that his failure to cooperate could result in termination from employment.”

 

2013 Update:

By Ryan Burton, I.U.P.A Associate General Counsel

Following the decision by the Georgia Court of Appeals in 2006, this case was brought to the Georgia Supreme Court the following year.  The Georgia Supreme Court affirmed the Court of Appeals’ ruling, concurring with their conclusion that Aiken was coerced into answering the investigator’s questions.  Further, the Supreme Court held that Georgia need not directly adopt the Friedrick analysis because Garrity itself provides a wide net of protection with its “totality of the circumstances” analysis.  This analysis already allows for the Officer’s subjective belief to be a factor in determining whether or not he was coerced into giving a statement, thereby rendering that statement protected under Garrity.

This ruling places Georgia with the Friedrick line of cases and provides Law Enforcement Officers in Georgia with a clear grant of protections for coerced statements under Garrity.  As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

FRS – Update from the GC Office



International Union of Police Associations

MEMORANDUM

From:   Ryan Burton, Associate General Counsel I.U.P.A.

To:       I.U.P.A. Florida Locals

Re:       FRS Employee Contribution Litigation

 

On January 17, 2013, the Florida Supreme Court issued its final ruling in the FRS Employee Contribution case.  Regrettably, the Supreme Court, in a narrow 4 to 3 ruling, reversed the Circuit Court’s decision, holding that the State Legislature’s requirement of a 3% employee pension contribution and reduction in retirement Cost Of Living Adjustments were permissible alterations to the plan.

While the I.U.P.A. does not agree with the ruling of the Supreme Court, we nevertheless respect the legal process. We truly appreciate the strong dissenting opinions of Justice Lewis and Justice Perry and agree with Justice Perry’s view of the case as “an insufferable and unconstitutional ‘bait and switch’ at the expense of the public employees” of the State of Florida.

Several law enforcement agencies in the State have assisted their employees by offering to offset the 3% reduction in salaries. Many more have offered no such assistance, leaving Florida Law Enforcement Officers to make do with less once again.  Now more than ever, the collective bargaining process is vital to Florida Law Enforcement Officers and their families. The I.U.P.A. continues to represent the interests of all of its members, fighting for the benefits of Law Enforcement Officers in Florida and throughout the Country.

For more information on SB 2100, the Circuit Court’s decision, and appeal to the Supreme Court please visit the Legal Corner at www.iupa.org to view past legal updates for this case.

Legal Update – August 2012 Union Business Agent Privilege

Alaska now recognizes a Union-Business agent privilege
By: Ryan Burton, Associate General Counsel
International Union of Police Associations

On July 20, 2012, the Supreme Court of Alaska dealt a strong victory to Labor Organizations and Union members in their state. While State and Federal laws recognize privileges for communications between employees and their attorneys, many States fail to explicitly recognize a Union-relations privilege protecting communications between members and non-attorney Union representatives.  Alaska law, similarly, recognized no privilege between employees and Union representatives.  However, its Supreme Court chose to create a new “implied” privilege in order to protect the rights of its public employees granted by its State Public Employment Relations Act.

The Alaska Supreme Court here created a new evidentiary privilege which now protects certain communications between an employee and their Union representative.  This privilege may be asserted by either the employee or the Union and, further, extends to not only administrative procedures but civil litigation as well.

In this case, a State of Alaska public employee was terminated after a review of his job application revealed an undisclosed criminal conviction.  The employee filed a grievance through his Union and had ongoing communications with a Union business representative as well as an outside counsel whom he hired in anticipation of litigation. Because the Collective Bargaining Agreement between the Union and State detailed that the Employer would only discuss grievances with Union representatives (not outside counsel), the employee’s attorney and Union business agent communicated regularly regarding the case.  After the employee filed suit for wrongful termination, the State employer deposed the Union business agent and demanded information regarding his communications with the employee’s attorney, including copies of written communications.  The employee filed for a protective order which was denied by the lower court.  The court reasoned that because the State of Alaska did not recognize a Union-relations privilege and that any claimed attorney-client privilege was waived when the employee’s attorney provided information on the employee’s case to the Union representative, the communications were not protected.

The Alaska Supreme Court reviewed of the case and reversed the lower court’s denial of the protection order.  In a decisive decision, the Court adopted the position of the employee as well as the reasoning provided by a support brief filed by the AFL-CIO with assistance from the I.U.P.A.  The Court reasoned that while there is no explicit Union-relations privilege in Alaska law, one must be implied in order to ensure that Union representatives will be “free to communicate with their members about problems and complaints without undue influence”. Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Seelig v. Shepard, 578 N.Y.S.2d 965, 967 (N.Y. Sup. 1991)). The Court would further reason that “members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an overzealous governmental agency”.  Id.

This ruling means that, in Alaska, communications made in confidence and in connection with Union services (grievances) which are between an employee (or the employee’s attorney) and Union representatives acting in their official capacity may not be forced to be disclosed during administrative or court proceedings.

In adopting this implied privilege, the Alaska Supreme Court examined relevant privileges adopted in other jurisdictions.  In particular, the Court examined cases addressing this precise issue in the private sector, as well as two cases litigated in New York under public sector law.  The theme of these cases was that to permit employers to probe into communications between members and Union representatives which are related to Union matters and grievances would effectively 1) deter Union members from seeking advice and representation and 2) have a “chilling effect” on Union activity.  Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Cook Paint & Varnish Co., 258 NLRB 1230 (1981); City of Newburgh v. Newman, 421 N.Y.S.2d 673 (N.Y. App. Div. 1979); and Seelig v. Shepard, 578 N.Y.S.2d 965 (N.Y. Sup. 1991)). In this case, however, it is unclear as to whether this new privilege applies if a third party (for example a prosecutor in a criminal case or a non-employer third party litigant) requests the communications.  Unions should assume the privilege only applies to requests made by employers or their attorneys until this issue is resolved by the Courts.

While this decision only affects Alaska law, it is an important development because, in issuing its decision, the Alaska Supreme Court chose to exercise its authority granted by its State Evidence Rules to recognize a new privilege.  The Alaska Court noted that many other States grant similar authority to adopt new privileges through their Supreme Courts. Therefore, the Alaska Supreme Court’s decision could be used to extend this privilege in other states. However, until courts in a particular jurisdiction officially recognize this privilege, Union representatives should assume that no privilege exists.  Further, Unions must be particularly cautious in cases involving potential criminal charges.

If you or your members want additional information on this topic please contact the I.U.P.A.’s general counsel’s office.  The general counsel’s office assisted the AFL-CIO in the drafting of their support brief and can provide further direction to I.U.P.A. Locals upon request. As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

FRS Litigation Update from the General Counsel’s Office

On March 28, 2012 the Florida Supreme Court certified our case as “a question of great importance” and accepted jurisdiction to hear the appeal. This certification allows our appeal to bypass the intermediate Appellate Court and have our case heard for immediate resolution.

Briefs and replies will be submitted in May and June of this year and oral arguments are currently scheduled for September 5. A final judgment is expected to follow soon thereafter.

The I.U.P.A. remains steadfast that SB 2100’s is unconstitutional and will continue to fight to have Circuit Court’s likewise ruling upheld. The I.U.P.A. continues to represent the interests of all its Members, protecting the benefits of Law Enforcement Officers in Florida and throughout the Country.