Changing of the Guard

​COURTS ARE ADDRESSING whether companies should pay employees for time worked when they are changing in and out of uniforms or gathering equipment. Police and security officers have filed several cases against their employers in federal court seeking compensation for activities they conduct before and after officially clocking into work. Because clear guidelines on these issues have not previously been provided by the courts or the U.S. Department of Labor (DOL), the outcome of the lawsuits is far from clear. One of these cases is set to go to trial and the other was appealed to the U.S. Court of Appeals for the Ninth Circuit.

Laws
The cases were brought under state and federal labor laws. The statutes at issue include the Fair Labor and Standards Act (FLSA) and the Portal-to-Portal Act.

FLSA. The Fair Labor Standards Act (FLSA) was enacted by Congress in 1938. Under the FLSA, an employer must pay an employee for all hours that he or she works. An employer also must pay employees overtime for hours worked in excess of 40 hours in a work week.

The problem is that the FLSA does not define “work.” Consequently, courts are sometimes left to decide what activities are considered “work,” and thus require compensation. These activities can include donning and doffing uniforms, getting equipment, checking schedules, and loading and unloading weapons.

FLSA damages include unpaid overtime compensation, damages for willful violations, attorney fees, and court costs. (Willfulness is found when the employer knew, or should have known, that it was engaging in conduct that violated the FLSA.)

FLSA claims are the second largest segment of labor cases brought to federal court. The largest segment involves pension cases, which are brought under the Employee Retirement Income Security Act (ERISA). In the past 10 years, ERISA claims have not increased much—9,167 claims were brought in 2000 and 9,326 in 2010. However, FLSA claims have increased substantially, more than tripling over that time. From March 31, 2009, to March 31, 2010, more than 6,080 FLSA claims were commenced in federal court. For the same period 10 years ago, only 1,961 FLSA claims were brought in federal court.

Plaintiffs may also file a collective action under the FLSA. This is basically a class action lawsuit brought by a group of employees against their employer. An employee must agree to be included as a plaintiff in a collective action lawsuit under the FLSA. The group of employees must show that it was subject to the same employment policies that violated the FLSA.

Portal-to-Portal Act. In 1946, the U.S. Supreme Court held that the FLSA requires employers to compensate employees for preliminary work activities. In 1947, Congress responded to the Court’s ruling and passed the Portal-to-Portal Act to narrow FLSA’s coverage by exempting employers from paying for activities that are conducted before or after the principal work activity. Since the Portal-to-Portal Act was passed, however, courts and the DOL have struggled with the definition of “principal activities,” which has led to lawsuits against employers.

Recent Cases 
Over the past few years, there have been many cases addressing whether employees should be paid for changing in and out of uniforms and collecting equipment. Two recent lawsuits addressed whether security officers and police officers should be paid for these activities.

In Haight v. The Wackenhut Corporation (U.S. District Court for the Southern District of New York, 2010), the plaintiff and 75 other security officers sued the Wackenhut Corporation in federal court for violation of the FLSA and New York labor laws. The plaintiffs were employed by Wackenhut as security officers at the Indian Point Nuclear Facility in New York.

The security officers claimed that Wackenhut failed to compensate them for time spent on activities they performed before and after their shifts. The security officers claimed that they were not compensated for a number of activities, including donning and doffing uniforms, preparing weapons, traveling to work sites, and doing paperwork.

Wackenhut sought to dismiss the security officers’ claims regarding donning and doffing, and so-called “gun-up” and “gun-down” activities. Donning included badging into protected areas, proceeding to locker rooms, and putting on uniforms. Gun-up activities included proceeding to a command post building; checking mail, shift schedules, and notices; obtaining radios and batteries, keys, and post duties binders; and waiting to enter the gun room. Gun-down activities included badging into the command post, putting batteries into chargers, entering the lieutenant’s office to turn in patrol sheets, going to the gun locker to unload weapons, and badging out of secure areas. Doffing included proceeding to locker rooms and taking off protective equipment.

The district court found that the security officers should not be compensated for time taken to badge into protected areas because ingress and egress security procedures were not integral to the security officers’ principal activities. The court found that the same security procedures applied to visitors and other employees. The plaintiffs also were not entitled to compensation for the time taken to walk to locker rooms, as time spent walking or waiting before the principal activity is excluded from compensation.

The court further said that officers should not be compensated for obtaining radios and batteries, waiting to enter the gun room prior to actually obtaining a gun, and the concomitant task conducted at the end of their shift after the plaintiffs had returned their guns. The court ruled that hardhats, safety glasses, steel-toed boots, gun holsters, and inclement weather gear were generic protective gear and not integral to the job and, therefore, time taken to don those items was not compensable.

Also, the security officers admitted that they were not required to change on the employer’s premises and that they had the option of changing at home. Furthermore, some of the gear was optional.

Interestingly, the court found that checking mail, shift schedules, and notices while in the command post building were generic activities that were not essentially linked to the principal activity of providing security to the power plant. While they were required by the employer, they were not integral to the employee’s work and were not compensable.

Furthermore, the court found that even if the equipment was integral and indispensable, the time spent on such activities was de minimus and was not compensable. Under the de minimus doctrine, otherwise compensable time could still be found to be not compensable by a court.

Factors to be considered are the practical administrative difficulty of recording the additional time, the size of the claim in aggregate, and whether the claimants perform the work on a regular basis. In this case, the trial court found that the plaintiffs claimed to spend seven minutes donning and doffing uniforms. The court found that seven minutes was an insignificant amount of time and that the practical administrative difficulty of recording the additional time would outweigh the size of the claim in the aggregate.

Although the district court dismissed all of the security officers’ claims that were related to donning and doffing and gun-up and gun-down, the case is still pending on whether Wackenhut should have paid the security officers for activities conducted after the security officers were armed but before they arrived at their work post. That particular issue is scheduled to be presented to a jury later this year.

The second case is Bamonte v. City of Mesa (U.S. Court of Appeals for the Ninth Circuit, 2010). In this case, the plaintiffs are police officers employed by the City of Mesa, Arizona. The officers sued the City of Mesa, arguing that the city violated the FLSA and Arizona statutes by failing to compensate them for hours they spent donning and doffing their uniforms, protective gear, and equipment. The police officers sought unpaid overtime compensation for violation of the FLSA, an additional amount equal to the overtime, attorney’s fees, and additional costs.

The City of Mesa required its police officers to wear certain uniforms and related gear. However, like the security officers in Haight, the police officers had the option of getting in uniform at home (and similarly, going home to get out of uniform).

The police officers argued that they preferred to don and doff their uniforms and gear at the police station. The officers raised several reasons for their preference, such as potential access to their gear by family members, safety concerns with performing firearms checks at home, and increased risk of being identified as police officers. In light of the police officers’ concerns, the city provided each officer with a locker at the station but made it clear that the officers had the option to change at home.

The trial court found that since the officers had been given the option of changing into their uniforms at home, the specific activity of donning and doffing uniforms at the police station was not compensable. The officers appealed the case.

The federal appeals court agreed with the trial court and dismissed the police officers’ complaint. The court noted that the DOL and other courts have allowed compensation for donning and doffing only in situations where the employees were required by their employers—by law, by rules, or by the nature of their work—to don and doff their gear in the workplace.

The court also found that the DOL Field Operations Handbook notes that employees who dress to go to work in the morning are not working while dressing even though they are putting on required uniforms. The court found that although the police officers were logical in choosing to change at the police station, this was a preference and not a mandate.

One of the three justices, Justice Ronald Gould, disagreed and wrote a separate opinion dissenting in part. Although he agreed with dismissing the police officers’ complaint, Justice Gould’s opinion raises questions that may be raised by plaintiffs in another lawsuit.

Justice Gould argued that the U.S. Supreme Court uses a context-specific approach to collective action FLSA cases, and that the majority did not use this approach. He wrote that the proper analysis for determining compensability under the Portal-to-Portal Act entails an examination of more than a dozen factors to determine whether an activity is compensable. For example, one factor might be whether there was a written policy governing the changing of uniforms at the workplace.

The police officers have not appealed Bamonte v. City of Mesa to the U.S. Supreme Court, which would be the next step.

Avoiding Liability
A company should review all of the activities it requires employees to complete both before and after work. For example, management should be wary if employees are required to don and doff uniforms at the workplace without compensation for that time. After Bamonte v. City of Mesa, companies should be sure that a written policy explicitly spells out the rules if they allow employees to don and doff their uniforms at home—in other words, if doing so at work is optional, not required. They should ensure that employees are aware of this policy.

Employers need to review their policies on other duties undertaken before and after work as well as any mandatory training. They should review record keeping procedures and policies and ensure that overtime is properly calculated to include necessary compensation.

Employers must not plan on using precedent. Collective action cases are fact specific, and courts have held that activities anywhere from two minutes to 15 minutes were de minimus. There are no clear standards.

In any collective action case, companies should have an attorney investigate the matter. The attorney should identify potential exposure and risks, determine the scope of the complaint, and preserve all relevant records. Companies should also work with the attorney to identify and interview key personnel so that the information remains privileged.

Collective actions are on the increase and significant costs can be associated with such actions. But by being aware of the risk, attempting to avoid clear violations, and consulting attorneys when claims arise, companies can reduce the potential for problems.

Philip R. Kujawa is a partner and John C. De Koker III is an associate at Hinshaw & Culbertson LLP. Kujawa is a founder of the firm’s Alarm and Security Industry Practice Group, and specializes in representing security and alarm companies in catastrophic claims and contract matters. This article does not constitute legal advice.