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D.Md.: Loading/Unloading of Materials Could Be Deemed “Integral and Indispensable” for Fire Protection Services; DMSJ Denied
Ross v. Wolf Fire Protection, Inc.
Plaintiffs, employees who installed fire protection services (sprinklers) on behalf of their employer, filed this lawsuit claiming that Defendant failed to pay them for all of their compensable work time. Specifically, Plaintiffs asserted that Defendant improperly failed to start their work day each day when they were required to come to Defendant’s facility to pick up expensive tools necessary for their work and load Defendant’s trucks. Similarly, Plaintiffs alleged that Defendant failed to properly pay them for time spent when they were required to return such tools (and work vehicles) to Defendant’s facility at the end of each work day. The Defendant argued that such time was precluded by the Portal-to-Portal Act, and in any event was de minimus such that it was not compensable time. The court held that the facts could support a finding that such time was “integral and indispensable” to their work, thus making it potentially compensable. As such, it denied Defendant’s motion.
Rejecting Defendant’s contentions, the court reasoned:
“The Defendants argue that the Plaintiffs “have never been instructed or directed to come to the [warehouse] before the start of the workday or at the end of the workday to pick up or drop off tools,” so loading of equipment at the warehouse cannot be an integral and indispensable part of their jobs. Defs.’ Mot. 7. The Plaintiffs contend that loading the equipment was integral because the equipment was necessary to installing sprinkler systems, and the Defendants required that they pick up the equipment at the warehouse. Pl.’s Opp’n 2–4.
An activity is “integral and indispensable” to the employee’s principal activities if it is “(1) necessary to the principal work performed and (2) done for the benefit of the employer.” Perez, 601 F.Supp.2d at 676 (citing Alvarez v. IBP, Inc., 399 F.3d 894, 902–03 (9th Cir.2003)).
The parties do not dispute that the Plaintiffs’ principal work was sprinkler system installation. See Defs.’ Mot. 6; Pls.’ Opp’n 2. Phillips’s affidavit is that the equipment he loaded and unloaded included items “necessary” to installing the sprinkler systems, such as the sprinkler heads, and because this equipment was expensive, Fire Protection “did not want [it] delivered directly to the job site” and “required [employees] to pick the[ ] [equipment] up at the warehouse, sign for [it], and account for [it].” Phillips Aff. ¶ 9.
From the evidence in Phillips’s affidavit, a reasonable factfinder could conclude that Phillips needed the equipment loaded at the warehouse to complete his job (the first part of the “integral and indispensable” inquiry). From his testimony that Fire Protection did not want expensive items delivered directly to the job sites, and required that the pipefitters pick up and sign for the equipment, a reasonable factfinder could conclude that the loading and unloading was “done for the benefit of the employer.” It is genuinely disputed whether Fire Protection required the plaintiffs to load and unload equipment, and whether the loading and unloading was “integral” to their “principal activity” requiring compensation under the FLSA.”
Rejecting Defendant’s contention that Plaintiffs were not entitled to be paid for travel time, the court explained:
“The Defendants argue that the Plaintiffs’ “voluntary carpooling” while “transporting tools, equipment and supplies” is not compensable under the FLSA. Defs.’ Reply 4. The Plaintiffs contend that because their workday started with loading the trucks at the warehouse, they must be compensated for all subsequent travel time within the workday. Pls.’ Opp’n 3–5.
The Portal–to–Portal Act did not change the “continuous workday” rule that “any walking, riding, or traveling time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … is covered by the FLSA.” Epps, 2011 WL 1566004, at *5 (internal quotation marks omitted). Applicable regulations provide that:
Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday must be counted as hours worked. Where an employee is required to report to a meeting place … to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. 29 C.F.R. § 785.38.
As discussed above, Phillips’s affidavit that Fire Protection required him to report to the warehouse to load and sign out expensive equipment Fire Protection did not want delivered directly to the job site creates a genuine dispute whether the loading and unloading was a principal activity. Viewing the evidence in the light most favorable to the Plaintiffs, it also creates a genuine dispute about whether travel from the warehouse to the job site and the return to the warehouse at the end of the day are “part of the day’s work” requiring compensation under the FLSA. The Defendants’ motion for summary judgment on the Plaintiffs’ FLSA unpaid wages claim will be denied.”
The issues discussed in this case are far from unique in the work world. However, many employers continue to violate the law, assuming that they need only pay employees for time spent at customer work sites, where the employer is profiting from the employees’ work. This case serves as a reminder that this is a misconception of the law.
Click Ross v. Wolf Fire Protection, Inc. to read the entire Memorandum and Opinion.
D.Colo.: Time Spent By Police Officers Donning And Doffing Their Uniforms And Equipment Is Compensable, Because It Is Integral And Indispensable To Their Police Duties
Rogers v. City and County of Denver
This case was before the Court on the parties’ respective motions for summary judgment. Plaintiffs made several claims for unpaid wages based on a variety of “off-the-clock” claims. Although the Court denied the parties’ motions with respect to most of the claims–either because the record was not fully developed, or because there were issues of fact–it held that the donning and doffing of uniforms and equipment by certain officers was compensable time.
“The first claim seeks compensation for time spent putting on and taking off the police uniform and equipment required for conducting police activity. For convenience of analysis, this claim is considered as it applies to patrol officers. The DPD Operations Manual prescribes the basic uniform to be worn on duty. It consists of a uniform shirt, uniform trousers, trouser belt, socks and authorized footwear. (DPD Op. Manual § 111.02.) A uniformed officer is generally required to carry a metal badge and nameplate, current DPD identification card, a valid Colorado driver’s license, and a standard uniform belt (“duty belt”) containing an authorized holster and firearm, ammunition case and ammunition, handcuffs and handcuff case, department issued tear gas and holder, flashlight, baton ring and belt “keepers.” (Id. § 111.03.) Uniformed officers are not required to wear basic hats or reflective apparel or carry batons, but officers must have those items available at all times. (Id. §§ 111.02(1), 111.02(12) & 111.03(13)). The Operations Manual describes particular situations in which basic hats and reflective apparel must be worn. The wearing of ballistic vests is encouraged, but not required. (Id. § 111.05(2)(e)).
The DPD does not require that donning and doffing the basic uniform take place at the assigned work station. Some district headquarters have storage lockers and rooms available for use at the officer’s individual choice. Some district buildings are too small and the officers must report in full uniform. The City argues that the option to put on and take off the uniform at home or elsewhere distinguishes this case from precedents established in the context of the meat industry and other hazardous occupations.
The option to change away from the duty station is not determinative. The principal activity of the patrol officers is policing the community. The police uniform is not “clothing” in any ordinary sense. It is the visible sign of authority and an essential element of the officer’s ability to command compliance with his commands and directives. It is analogous to the judicial robe. The uniform includes the equipment that are the tools that enable the officer to use physical force, including deadly force, for the protection of himself and others as circumstances require.
The City argues that the Plaintiffs’ clothes changing activities are excluded from compensation under 29 U.S.C. § 203(o). That section provides:
Hours Worked.-In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
CBAs between the City and the Denver Police Protective Association have been in effect since January 1, 1996. DPD officers have never been compensated for donning and doffing their uniforms and personal equipment. The City contends that this history of non-compensation shows an established custom or practice under the CBAs.
That argument is not persuasive. Silence in collective bargaining is not the equivalent of a custom or practice of non-compensability.
In December 1985, the United States Department of Labor (“DOL”) issued a Wage and Hour Opinion Letter, stating that the time spent by a uniformed police officer donning and doffing the required uniform was not compensable time under the FLSA, where a collective bargaining agreement between a city and the union had no express provision regarding the compensability of clothes-changing time and there had been no custom or practice between the parties to consider such clothes changing time compensable. Wage & Hour Opinion Letter, Dec. 30, 1985, 1985 WL 1087351, Def.’s Ex. A-98. That opinion letter is not persuasive, but may be considered with respect to the issue of willfulness. Similarly, Wage & Hour Advisory Memorandum No.2006-2 dated May 31, 2006 (opining that changing into gear is not a principal activity if employees have the option and the ability to change at home) is relevant only to the issue of willfulness.
The judicially-created de minimis rule provides an exception to the FLSA’s requirement that all work be compensated. There are genuine issues of material fact regarding the time and effort required to don and doff the DPD uniform and protective gear. The City’s de minimis defense is a factual issue for trial.
While donning and doffing the patrol officers uniform and equipment is compensable time under the FLSA as activity that is integral and indispensable to their police duties, the continuous work day does not begin or end with that activity. The plaintiffs are not asking for time spent commuting for those officers who chose to change at home. This ruling is applicable only to the uniformed officers on official duty. The facts concerning wearing uniforms and equipment during secondary employment are not adequately presented in the papers filed. Similarly there is no clear evidentiary record concerning detectives and other non-uniformed officers.”
This decision appears to be in direct conflict with the Ninth Circuit’s recent decision discussed here, which held that time spent donning and doffing police uniforms and equipment was not compensable, because officers had the option of doing it at home.
Click here to read the entire decision.