Tuesday, August 2, 2016

Donning and Doffing claim under FLSA returns to the district court

Plaintiffs worked for the New York City in the Parks Department as Assistant Urban Park Rangers. They sued the City for overtime violations because they were not getting paid for donning and doffing, a legal term for putting on and taking off their work uniforms before and after work. The Court of Appeals says plaintiffs may have a case.

The case is Perez v. City of New York, decided on August 2. "During a shift, AUPRs are required to wear uniforms comprising both professional clothing and equipment. The professional clothing includes 'olive drab' pants and jacket, 'Smokey the Bearʹ style hats, and various Parks Department insignias, while the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder." It takes 5 to 30 minutes a day for the urban cowboys to  change into and out of the clothing. Should they get paid for this?

"The FLSA does not require payment for time spent on 'activities which are preliminary to or postliminary to' an employeeʹs principal activities." The dispute is as follows: "The plaintiffs characterize those tasks as integral and indispensable to (and thus part of) their principal activities as AUPRs [which means they get paid for it], while the defendants describe them as preliminary or 'postliminary' to all principal activities [which means they don't get paid for it]." Here is the legal standard:

An activity is therefore ʺintegral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.ʺ
ʺThe more the [pre‐ or post‐shift] activity is undertaken for the employerʹs benefit, the more indispensable it is to the primary goal of the employeeʹs work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable.ʺ Relatedly, an employerʹs requirement that pre‐ or post‐shift activities take place at the workplace may indicate that the activities  are integral and indispensable to an employeeʹs duties.
The Court of Appeals (Sack, Chin and Lohier) says plaintiffs may win the case because the donning and doffing in this case constitute "activities 'undertaken for the employerʹs benefit,' with no choice on the employeeʹs behalf." They also have to don and doff at work and not at home before or after their shifts. More fundamentally, "the uniforms appear to be vital to 'the primary goal[s] of [the plaintiffsʹ] work' during a shift." In particular,

An AUPRʹs utility belt holds items used to perform law‐enforcement duties. A summons book is, of course, necessary for the issuance of summonses. A baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a radio and flashlight may prove crucial in tracking suspects and coordinating with other municipal employees. We are inclined to classify these items as tools of an AUPRʹs trade, arguably analogous to a butcherʹs knife, a radiological technicianʹs x‐ray machine, or a K‐9 officerʹs dog.
In addition, "professional clothing appears to be comparably essential to an AUPRʹs work. Uniforms generally serve to identify employees to others, and for many jobs (waiting tables, for example) that function may be a mere convenience. In the case of law‐enforcement personnel, however, identification to the public is more fundamentally intertwined with the objectives of employment."

While the City says that donning and doffing is not compensable under the "de mininus" exception, the Court of Appeals leaves that to the district court to sort out on remand.

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