The Ninth Circuit Court of Appeals rendered a much anticipated decision in a case that could have a significant adverse effect on law enforcement personnel seeking compensation for donning and doffing of uniforms and safety equipment.  In Bamonte v. City of Mesa (Case No. 08-16206) two of the three justices affirmed the decision of a District Court judge that held that police officers from the City of Mesa, Arizona, were not entitled to compensation under the Fair Labor Standards Act (FLSA) for time spent putting on and taking off their uniforms and safety gear.  The dispositive factor according to the Court of Appeals (and the lower court) was the fact that the officers had the option of dressing at home and traveling to and from work fully attired.

 
In reaching its decision, the Court noted the FLSA's requirement that employees be paid for work that the employer requires be performed and that is for the benefit of the employer.  The Court also noted that the Portal-To-Portal Act of 1947 modified the FLSA to relieve an employer from liability for activities that are preliminary or postliminary to the principal activities of a given job.  The apparent contradiction between these statutory requirements were reconciled in Steiner v. Mitchell, 350 US 247 (1956), in which the Supreme Court held that "activities performed either before or after the regular work shift...are compensable under the portal-to-portal provisions of the [FLSA] if those activities are an integral and indispensable part of the principal activities...." Id. at 256.  A later decision in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003), affirmed on other grounds by the United States Supreme Court in IBP v. Alvarez, 546 U.S. 21 (2005), articulated a 3-part test to determine whether an employer is required to compensate employees for activities they perform that are outside their regular hours:

• The first step requires one to determine whether the activities constitute 'work' (i.e., physical or mental exertion controlled or required by the employer and pursued primarily for the benefit of the employer);
• Second, whether the activity was an integral and indispensable duty (i.e., necessary to the principal work and done for the benefit of the employer); and
• Third, whether the activity was de minimus (i.e., of trivial duration).

In support of their argument that the donning and doffing time should be compensable, the Appellant Mesa police officers emphasized the relationship between their uniforms and gear and the performance of their duties.  Specifically, the officers argued that the uniforms and gear contributed to their command presence and promoted officer and public safety in furtherance of law enforcement goals.  The officers also argued that although no department regulation prevented them from dressing at home it was preferable to dress at the station for several reasons, including: potential access to the gear by family members and guests, safety concerns with performing firearms checks at home, increased risk of being identified as a police officer while off duty, and potential exposure to family members of contaminants and bodily fluids. 

In applying the 3-part test from Alvarez, the majority opinion noted that it could be argued that donning and doffing of the uniforms and related gear by the officers did not constitute 'work', and thus it failed the first prong of the test.  On the other hand, it recognized that language from Alvarez could also be interpreted as meaning that the officers' donning and doffing should be compensable because the employer required the officers to wear uniforms and related protective gear.  Because the majority found that the officers failed to satisfy the second prong, the Court side-stepped resolving the issue.

In rather contorted reasoning, the Court held that the officers' claim failed the second prong of the Alvarez test (i.e., whether the activity was an integral and indispensable duty) because that activity could be performed at the officers' residences.  The Court held that the evidence established that engaging in donning and doffing at work was for the benefit of the employee, not the employer.  As a result, the Court did not address the third element, i.e., whether the activity was of trivial duration. 
 
The Court's analysis is difficult to appreciate and seems to be purely "result oriented".  It focuses entirely on the location of the activity, not its nature, in ascertaining whether it benefits the employer.  If the uniforms or related gear are an integral and indispensable part of the officers' job if donned and doffed on premises when so required by the employer, why wouldn't the same conclusion apply if those activities were engaged in off premises?  Interestingly, the opinion recognized precedent that held other "work" performed off premises was an integral and indispensible duty that benefitted the employer and was compensable. 
 
Presumably, according to the Court's reasoning, if the City of Mesa's policy required officers to dress at the station, such time spent dressing would be for the benefit of the employer and thus the second prong would be satisfied.  Likewise, if the activity of donning and doffing is not preliminary or postliminary if mandated to be done on premises, why wouldn't the same result follow if done off premises?  It appears that the majority made larger than life the fact that in the cases relied upon as precedent there was an on premises requirement, although that fact does not appear an essential ingredient of any of those decisions.  
 
Moreover, the decision does not address the breach of contract actions that have been asserted in addition to claims that the FLSA was violated.  Those actions were prosecuted because of the lower threshold for overtime compensation under most contracts (time worked or regarded as worked in excess of the daily work schedule, 40 hours per week or 160 hours in a 28 day period) than that articulated in the FLSA (171 hours of actual work in a 28 day period).  It appears that, because the decision did not address the first prong, it, or the pending FLSA cases, it would not preclude an independent determination in the contract actions as to whether the donning and doffing constituted work within the meaning of the applicable contract, thereby entitling the officers to contract overtime compensation.
 
A stinging dissent attacked the intellectual consistency of the majority's reasoning.  That Justice found that the donning and doffing of safety gear (not uniforms) satisfied the first two ingredients of the three part test.  He would have remanded the matter to the District Court to take evidence and decide whether the third (de minimus) prong was satisfied.
 
The officers are petitioning the Ninth Circuit Court of Appeals for a rehearing en banc.  Hopefully, more a more intellectually sound decision will be rendered at that time.