No Pay for Alleged Pre-Shift Tasks by Police Officers
On February 13, 2009, a federal jury in the Southern District of California unanimously decided that the time that eight San Diego police officers spent performing tasks prior to their shifts was not compensable under the Fair Labor Standards Act.
Specifically, the jury determined that the officers had not performed uncompensated work that was “controlled or required by the employer, and pursued necessarily and primarily for the benefit of the employer and its business.”
The officers contended that department policy requiring them to be ready at roll call meant they had to perform routine tasks, such as loading equipment into their squad cars and checking e-mails and voicemails, before their shifts began. The officers argued that the “police department’s culture” and “unspoken policy” discouraged officers from putting in for overtime for these and other tasks. The City maintained that officers were not required to perform these tasks prior to their shifts and that officers were provided time during their shifts to perform the tasks. Indeed testimony reflected that officers performed the tasks early for other reasons, such as claiming a newer squad car.
This determination and earlier decisions and court orders may mean potential victories for the numerous public agencies across California and the nation facing similar lawsuits by police officers’ unions claiming overtime for donning and doffing uniforms and gear, performing pre-shift and post-shift activities, and performing other off-duty work such as responding to e-mails at home, cleaning weapons and preparing for court. Many of these lawsuits are set for trial over the next couple of years, which exacerbates the budget woes of public agencies amidst this recession. Agencies must spend money defending these lawsuits and face potential liabilities in the millions of dollars if they are unsuccessful.
Overview of Recent Cases on Police Officer Overtime Claims
-San Diego Police Officers’ Union v. City of San Diego(S.D. Cal. Feb. 13, 2009): Jury verdict that pre-shift activities are not compensable work.
-Dager v. City of Phoenix, Case No. 2:06-CV-01412 (D. Ariz. Jan. 21, 2009): Federal judge rules in motion for summary judgment that donning and doffing of police uniforms and protective gear are preliminary and postliminary, i.e. not necessary, to the principal activity of police work and therefore non-compensable under the FLSA because officers have the option and ability to don and doff at home.
-Maciel v. City of Los Angeles, 569 F.Supp.2d 1038 (C.D. Cal. May 29, 2008): Donning and doffing of protective equipment was compensable, and not de minimis, because it is an integral and indispensable part of the principal activities of police officers. Time spent inspecting and maintaining safety gear, such as inspecting and polishing leather equipment, was not compensable because the collective bargaining agreement provided for a maintenance and repair stipend. Time spent performing pre-shift activities are not compensable because the activities were not required and could have been completed during the regular work schedule. Time spent performing other activities off-duty or at home were also not compensable because supervisors were not aware officers were conducting these activities off-the-clock. In earlier summary judgment order, the judge ruled that donning and doffing of just the police uniforms was not compensable
–Farris v. County of Riverside, Case No. CV 05-6166 (C.D. Cal. May 2008): Jury verdict that the County willfully violated FLSA by not compensating police officers for donning, doffing, and pre-shift preparation of patrol cars. Donning and doffing of both uniforms and equipment were integral and indispensable to officers’ principal law enforcement activities.
–Bamonte v. City of Mesa, 2008 WL 1746168 (D. Ariz. Apr. 14, 2008): Donning and doffing of police uniforms and protective gear is not compensable work under the FLSA because (1) neither the law, police department, nor the nature of police work mandate that officers don or doff at the station or reporting place, and (2) officers have the option and the ability to don and doff their uniforms and gear at home.
–Lemmon v. City of San Leandro, 538 F.Supp.2d 1200 (N.D. Cal. Dec. 7, 2007): Time spent donning and doffing police uniform and gear is compensable under the FLSA subject to the de minimis rule, even if performed off the employer’s premises, because it is necessary to police work and is done for the employer’s benefit, but time spent between donning and doffing and policing (such as commuting) is not generally compensable.
–Abbe v. City of San Diego, 2007 WL4146696 (S.D. Cal. Nov. 9, 2007): Federal judge rules in motion for summary judgment that polices officers’ donning and doffing activities are not compensable as a matter of law because: (1) neither law, workplace policy nor nature of police work mandates that officers don or doff uniform and gear at work; (2) officers’ safety concerns – damage to personal vehicle, convenience of lockers, or potential target for discontented citizens – were addressed by department policy requiring officers to cover up uniforms when off-duty; (3) time spent donning and doffing safety gear is de minimis and non-compensable as a matter of law; and (4) time spent donning and doffing police uniform is not compensable because the MOU established a pattern and practice that they have never been compensated for it.
–Martin v. City of Richmond, 504 F.Supp.2d 766 (N.D. Cal. Aug. 10, 2007): Donning and doffing just the police uniform is not compensable under FLSA where officers have the option and ability to dress at home because the process of donning and doffing a police uniform is not an integral and indispensable part of carrying out police duties.