The BP Blast!: A California Employment Law Blog

DONNING AND DOFFING OF UNIFORMS: COMPENSABLE OR NOT?

The number of lawsuits filed by employees seeking overtime pay, pursuant to the Fair Labor Standards Act (FLSA), for pre and post shift time is continuing to grow, including those cases initiated by peace officers. A variety of peace officer groups who are required to wear uniforms or special protective or safety gear have lawsuits pending because public employers do not provide compensation for time spent putting on (donning) or taking off (doffing) such gear prior to or at the end of work shifts. To date, six district courts have addressed the issue of compensability for donning and doffing of police uniforms in extensive written opinions, with no clear consensus on the issue.

In the case of Martin v. City of Richmond, the district court granted the City's motion for summary judgment regarding the donning and doffing of uniforms, finding such time was not compensable under the FLSA. The Martin court found, however, time spent donning and doffing protective gear, "integral and indispensable" to the work performed, may be compensable under the FLSA, depending of whether such tasks were performed at work or at home, and depending on how much time was incurred.

In the case of Abbe v. City of San Diego, the district court sided completely with the employer, ruling the donning and doffing of both the uniform and protective gear was not compensable because neither the law, the employer's policies, nor the nature of the work required the donning and doffing to be done at work, and if done at home, it was not compensable under the FLSA.

In the case of Vucinich, Maciel v. City of Los Angeles, the district court agreed with the Martin court and ruled that while donning and doffing of uniforms was not compensable, donning and doffing of protective gear was integral and indispensable to the officers' work and was therefore compensable under the FLSA. Unlike the Martin and Abbe courts, the Vucinich, Maciel court did not engage in any analysis of donning and doffing protective gear at home versus at work in finding such time compensable. Following the summary judgment ruling in 2007, this case became Maciel v. City of LosAngeles and went to a bench trial, resulting in a verdict which upheld the summary judgment ruling time spent donning and doffing protective gear was compensable under the FLSA.

In the case of Lemmon v. City of San Leandro, the district court disagreed with the Martin, Abbe, and Vucinich/Maciel cases, and ruled entirely for the peace officers, holding that donning and doffing of both the uniform and special protective gear was compensable under the FLSA. The Lemmon court stated "there is no distinction between the uniform and the equipment because the police uniform, with all of its component parts, functions as an integrated whole that serves as the officer's survival suit." In addition, in direct opposition to the Martin and Abbe decisions, the Lemmon court ruled the compensability of time spent donning and doffing of the uniform and special protective gear did not depend on whether such activity occurred at the employer's premises.

In the matter of Dager v. City of Phoenix, the district court ruled the City did not have an obligation to pay its police officers for the time spent donning and doffing their police uniforms and gear because only those employees actually required to change at work could claim the time spent donning and doffing was compensable, and the uniform itself was not "necessary" to the performance of police work. Finally, in the matter of Bamonte v. City of Mesa, the district trial court granted summary judgment in favor of the City on the officer's donning and offing claims.

The Abbe, Lemmon, and Bamonte summary judgment rulings and the Maciel bench trial decision are now on appeal to the Ninth Circuit Court of Appeal. When the Ninth Circuit decision is published, the application of the FLSA to pre and post shift donning and doffing time will likely become much clearer for California peace officers. Until then, the contrary district court decisions leave public employers unsettled.

Although these cases arise in the context of police departments, they certainly have the potential for far wider reach. If any federal appellate court holds time spent changing in and out of a uniform can be compensable regardless of where it takes place, employers that require employees to wear a uniform on the job can expect a significant number of similar claims to be made by employees in a variety of industries.