Legal News

Ninth Circuit Clarifies Whether Donning & Doffing Is Compensable

On March 25, 2010, the Ninth Circuit Court of Appeals issued a decision addressing whether donning and doffing a police uniform and protective gear are compensable activities under the Fair Labor Standards Act.  The decision is Bamonte v. City of Mesa, 2010 WL 1131492, and it is not in our favor.   

As you may know, donning and doffing claims by peace officers became prevalent in 2005 after the United States Supreme Court decided IBP Inc. v. Alvarez (2005) 126 S.Ct. 514 — a case where the court unanimously held that time spent donning and doffing required protective gear and walking back and forth from the locker rooms to the production floor of a meat processing plant were working time. The court reached this decision because donning the safety gear was “integral and indispensable” to the employees’ “principal activities.” In addition, for various reasons, the employer also required the employees to don and doff at the employer’s place of business.

In 2006, and on the heels of the Alvarez decision, the U.S. Department of Labor responded with an advisory memorandum attempting to outline its position. In its memorandum, the department made a distinction between instances where an employer requires the donning and doffing to take place on the employer’s premises versus when it allows it to take place at home. The department concluded that donning and doffing would be compensable only if the employer required the donning and doffing to occur on the employer’s premises or when the nature of the job required it. 

In Bamonte, the Ninth Circuit adopted the Department of Labor’s position, setting a bright-line rule that donning and doffing uniforms and protective gear is integral and indispensable to police work, and thus compensable under the Fair Labor Standards Act, only if a “requirement of law, rule, the employer or the nature of the work mandates donning and doffing at the employer’s premises.” As a result, any police department that imposes any sort of requirement that an officer dress at the station or place of work automatically renders the donning and doffing compensable. Although few departments impose such a requirement, any officers that are subject to such a requirement should consult legal representation immediately to preserve their rights.

Furthermore, the Ninth Circuit’s decision does little to actually resolve the dispute. It merely changes the argument. To prevail, officers must merely show that the nature of police work requires officers to dress at the station. In point of fact, employers frequently acknowledge this both explicitly and implicitly. Many departments encourage their officers to dress at work to avoid liability during the officer’s commute. Most, if not all departments, provide officers with locker rooms, showers and other changing facilities. That the nature of the job requires donning and doffing to occur at the employer’s place of work is best demonstrated by examining the practice within a department; in most instances, a large majority of officers don and doff at the station, and this is not simply a coincidence. In Bamonte, the officers did not make the argument that the nature of their job required them to don and doff at the station, and as a result, the court had no occasion to find in their favor on that point. 

Finally, it is important to know that the Bamonte decision is not yet final. The officers will have an opportunity to file a rehearing petition with the three-member panel that issued the decision, as well as a rehearing petition before the entire Ninth Circuit. If both of those efforts fail, the officers can appeal to the United States Supreme Court. Although the Supreme Court can refuse to hear the case, effectively leaving the Ninth Circuit’s decision as the law, it may have an interest in deciding this issue. After all, it decided Alvarez just five years earlier. 

ABOUT THE AUTHOR: Michael A. McGill is a partner with the law firm of Lackie, Dammeier & McGill and serves as general counsel to the San Bernardino Police Officers Association.