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by John Tennant

Ninth Circuit Rejects Police Officers’ Claims for Donning/Doffing Pay

A couple of years ago it was all the rage to file lawsuits claiming that police officers were entitled to be paid for the time they spent donning and doffing their uniforms and gear. Such lawsuits were based on a theory that a federal statute, the Fair Labor Standards Act (FLSA), required nothing less. (In the April '08 edition of this publication, I explained in my article, Donning and Doffing Primer, the history of the FLSA and the legal arguments behind the various donning/doffing lawsuits that were being filed.) In late March, the Ninth Circuit Court of Appeals - the highest federal court next to the U.S. Supreme Court for California and other western states - ruled that the FLSA does not require officers to be compensated for donning/doffing time if they have the option and ability to don/doff their uniforms and gear at home. (Bamonte v. City of Mesa, 598 F.3d 1217).

The case arose out of Mesa, Arizona, which, like most municipalities, requires its police officers to wear police uniforms and related gear (e.g., a duty belt, service weapon, handcuffs, etc.), although the wearing of body armor is optional. While providing each officer a locker and facilities at the station to don and doff their uniforms and related gear, the City allowed the officers the option of donning and doffing their uniforms and gear either at work or at home.

The plaintiff officers argued, however, that it was far preferable to don/doff at the station than at home for the following reasons: (1) the risk of loss or theft of the uniforms/gear at home; (2) potential access to the gear by family members or guests; (3) distractions at home that could interfere with donning/doffing; (4) safety concerns with performing firearm checks at home; (5) discomfort associated with wearing police gear while commuting; (6) the increased risk of being identified as a police officer while off duty; and (7) potential exposure of family members to contaminants and bodily fluids.

This question of whether it is in fact feasible and safe to don/doff police uniforms and gear at home - irrespective of a police department's allowing officers the option of donning/doffing at home - is critical to the resolution of police officers' FLSA claims. The reason this question is so critical is twofold: First, in 2006, the Department of Labor ("DOL") issued an advisory memorandum on the issue, in the wake of a Supreme Court decision that while not directly on point, seemed to many FLSA plaintiff lawyers to pave the way for police donning/doffing lawsuits (IBP, Inc. v. Alvarez, 126 S.Ct. 514 (2006)). The DOL opined that notwithstanding the Alvarez decision, so long as an employee possesses "the option and the ability to change into the required gear at home," overtime compensation under the FLSA is not required. (Wage & Hour Adv. Mem. No. 2006-2 at 3).

But this DOL advisory memorandum was, as the title suggests, only "advisory" insofar as the opinions of administrative agencies do not bind the federal courts and, more importantly, it simply begged the question of whether a police officer actually has "the ability" to don/doff at home. Indeed, in a case brought by Richmond police officers, U.S. District Court Judge Breyer rejected at an earlier procedural stage of the litigation the claim by the City of Richmond that its formal policy of permitting officers to put on and take off their protective gear at home automatically exempted donning/doffing time from the FLSA. (Martin v. City of Richmond 504 F.Supp.2d 766, 776 (N.D.Cal., 2007). Judge Breyer ruled, in essence, that the parties must proceed to trial on the issue of whether the nature of a Richmond police officer's work actually requires officers to don and doff their gear at the station. If that question were to be answered in the affirmative by a jury, then, presumably, overtime pay under the FLSA would be warranted. (One should note that Judge Breyer's court is a federal district court, which must follow applicable precedent set by the Ninth Circuit Court of Appeals.)

In Bamonte v. City of Mesa, the Ninth Circuit ruled unequivocally that in the case of the Mesa, Arizona police department, the "donning and doffing of uniforms and related gear are not required by law, rule, the employer or the nature of the police officers' work to be performed at the employer's premises." (598 F.3d at 1231). In other words the Ninth Circuit answered in the negative the question which Judge Breyer had seized upon as the determining factor in deciding donning/doffing claims under the FLSA. Rejecting concerns raised by the Mesa officers over the difficulties inherent in donning/doffing at home, the Ninth Circuit explained that "Although logical reasons exist for the police officers not to avail themselves of the at-home option, such as comfort, safety concerns, and exposure of family members to certain substances, these reasons reflect preferences rather than mandates." (Id.)

The upshot of the Ninth Circuit's decision is that donning/doffing lawsuits brought by police officers will be extremely difficult to win in the Ninth Circuit, unless one of three things happens: (1) plaintiff police officers filing such lawsuits offer stronger evidence than their Mesa counterparts that "the nature of the police officers' work" actually requires them to don/doff at work (or that the police department in fact requires them to don/doff at work); (2) the Bamonte decision is reversed by the full Ninth Circuit in what is known as an en banc proceeding; or (3) the U.S. Supreme Court grants review of the Bamonte decision and overrules it. Given the pro-employer bent of the current majority of Supreme Court justices, the last is the least likely of the three possibilities.

"Roll the Union On . . ."

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