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.
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 Martin. See 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.