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Donning and Doffing Uniforms at Home May Not Be Compensable

by Chris McFadden

Under the Fair Labor Standards Act (FLSA), employees may be entitled to compensation for time spent donning and doffing uniforms if they are required to do so at work. A recent ruling by the Ninth U.S. Circuit Court of Appeals addresses the compensability of time spent donning and doffing uniforms and gear when employees have the option to do so at home.

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Background
Mesa police officers must wear uniforms and related gear, including weapons, holsters, handcuffs, batons, and radios. In addition, they have the option of wearing body armor. There is no policy requiring them to suit up or remove their uniforms at the station; they may put on and take off their uniforms and gear at home if they choose to do so.

Because the city doesn’t compensate its police force for time spent getting dressed or removing their uniforms, the officers filed a class action. Their suit sought payment under the FLSA for time spent donning and doffing their uniforms and related gear. The trial court dismissed the case in the city’s favor, and the officers appealed to the Ninth Circuit.

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Three-stage inquiry under the FLSA
Under the FLSA, you do not have to pay employees for activities that are preliminary or postliminary to the principal activities of the job. However, if activities performed before or after the regular work shift are an integral and indispensable part of the principal activities, they are compensable.

The Ninth Circuit acknowledged the three-stage inquiry used in determining whether donning and doffing is compensable. Specifically, the court considered whether the activity (1) constitutes “work,” (2) is “integral and indispensable” to the officers’ principal activities, and (3) is minimal.

With regard to the first prong, the court agreed with the officers that notwithstanding the option to don and doff uniforms and protective gear at home, those activities could be considered “work” simply because they were required by the employer.

But in analyzing the second prong, the court noted that the question wasn’t whether wearing the uniform and gear is itself integral to the job (as it most certainly is), but whether donning and doffing on the employer’s premises is integral and indispensable. The officers argued that by changing at work, they avoid:

  • risk of loss or theft of uniforms and gear at home;
  • potential access to the gear by family members or guests;
  • distractions at home that might interfere with the donning process;
  • safety concerns over performing firearm checks at home;
  • discomfort associated with wearing gear while commuting;
  • increased risk of being identified as a police officer while off-duty; and
  • potential exposure of family members to contaminants and bodily fluids.

Thus, the officers argued that changing at the station is preferable for personal reasons, but they didn’t argue that it benefits the employer in any way. Thus, the court affirmed the lower court’s decision in favor of the city.

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Bottom line
Though it’s possible that different facts would yield a different result, the court’s ruling suggests that a key factor in the analysis of compensability is whether the employer requires its employees to change in and out of uniforms at work. As a result, you may benefit from reviewing your policies and giving employees the option to change off-premises if you don’t already.