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Bamonte v. City of Mesa

March 25, 2010

FRED BAMONTE; JAVIER COTA; RICARDO PERINE, AND OTHER SIMILARLY SITUATED EMPLOYEES, PLAINTIFFS-APPELLANTS,
v.
CITY OF MESA, A BODY POLITIC, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding D.C. No. 2:06-cv-01860-NVW

The opinion of the court was delivered by: Rawlinson, Circuit Judge

FOR PUBLICATION

Argued and Submitted June 1, 2009 -- Las Vegas, Nevada

Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Lloyd D. George,*fn1 District Judge.

Opinion by Judge Rawlinson; Partial Concurrence and Partial Dissent by Judge Gould

OPINION

Appellants, police officers employed by Appellee City of Mesa (City), challenge the district court's entry of summary judgment in favor of the City. The officers contended that the City violated the Fair Labor Standards Act (FLSA) by failing to compensate police officers for the donning and doffing of their uniforms and accompanying gear. Because officers had the option of donning and doffing their uniforms and gear at home, the district court determined that these activities were not compensable pursuant to the FLSA and the Portal-to-Portal Act. We agree that these activities were not compensable pursuant to the FLSA, and affirm the district court's judgment.

I. BACKGROUND

The City of Mesa, like most other municipalities, requires its police officers to wear certain uniforms and related gear, usually including trousers, a shirt, a nametag, a clip-on or velcro tie, specified footwear, a badge, a duty belt, a service weapon, a holster, handcuffs, chemical spray, a baton, and a portable radio. The wearing of body armor is optional, although the officers are required to have the body armor available.

In support of their argument that the time spent donning and doffing the uniform and related gear was compensable, the police officers emphasized the relationship between their uniform and gear and the performance of their duties. Specifically, the officers relayed their belief that the uniforms and gear contribute to their command presence, thereby promoting officer and public safety in furtherance of law enforcement goals.

The officers also explained that it was preferable to don and doff their uniforms and gear at the police station. The explanation included the following considerations: (1) the risk of loss or theft of uniforms and gear at home; (2) potential access to the gear by family members or guests; (3) distractions at home that might interfere with the donning process; (4) safety concerns with performing firearm checks at home; (5) discomfort associated with wearing the gear while commuting; (6) the increased risk of being identified as a police officer while off-duty; and (7) potential exposure of family members to contaminants and bodily fluids.

The City was not oblivious to the concerns expressed by the officers. Each officer is provided a locker at the station, and facilities are available for the officers to don and doff their uniforms and related gear. In sum, officers have the option to don and doff at home or at work. No requirement is imposed on officers by the City, with the exception of motorcycle officers, who are required to don and doff their uniforms and gear at home, because their shifts begin when they leave their residences.

On these facts, the district court granted the City's motion for summary judgment, concluding that, because officers had the option and ability to don and doff their uniforms and gear at home, the specific activity of donning and doffing uniforms and gear at the workplace was not compensable. The officers filed a timely notice of appeal.

II. STANDARDS OF REVIEW

"We review de novo the district court's order granting summary judgment." San Diego Police Officers' Ass'n v. San Diego City Employees' Retirement Sys., 568 F.3d 725, 733 (9th Cir. 2009) (citation omitted). "In doing so we are governed by the same principles as the district court: whether, with the evidence viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact, so that the moving party is entitled to a judgment as a matter of law." Id. (citation omitted).

"Interpretations of the FLSA and its regulations are questions of law, and appellate courts review district court interpretations de novo." Gieg v. DDR, Inc., 407 F.3d 1038, 1044-45 (9th Cir. 2005) (citation omitted).

III. DISCUSSION

[1] "It is axiomatic, under the FLSA, that employers must pay employees for all hours worked." Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003), aff'd on other grounds sub nom. IBP v. Alvarez, 546 U.S. 21 (2005) (citations and internal quotation marks omitted). "Work, the Supreme Court has long noted, is physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer." Id. (citation and internal quotation marks omitted) (emphasis added). However, "[t]hat such activity is work as a threshold matter does not mean without more that the activity is necessarily compensable. The Portal-to-Portal Act of 1947 relieves an employer of responsibility for compensating employees for activities which are preliminary or postlimi-nary to the principal activity or activities of a given job." Id. (citation, alteration, and internal quotation marks omitted) (emphasis added).

The issue of compensation for donning and doffing clothing and gear is not new. In Steiner v. Mitchell, 350 U.S. 247 (1956), the Supreme Court considered whether workers in a battery plant must be paid as a part of their principal activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health had [sic] hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are preliminary or postliminary within the meaning of the Portal-to-Portal Act and, therefore, not to be included in measuring the work time for which compensation is required under the Fair Labor Standards Act.

Id. at 248 (internal quotation marks omitted). The case was decided against the backdrop of a manufacturing process where employees faced constant exposure to health-threatening, if not life-threatening, lead poisoning. See id. at 249-50. "[I]ndustrial and medical experts" agreed that "[s]afe operation... require[d] the removal of clothing and showering at the end of the work period." The required showering had "become a recognized part of industrial hygiene programs in the industry, and the state law... require[d] facilities for this purpose..." Id. at 250 (citation omitted). The employer's insurer "would not accept the insurance risk if [the employers] refused to have showering and clothes-changing facilities for their employees." Id. at 251.

Recognizing that changing clothes and showering "fulfilled mutual obligations" between the employer and employee, the Supreme Court agreed with the trial court that these activities "constitute[d] time worked within the meaning of the Fair Labor Standards Act." Id. at 253 (footnote reference and internal quotation marks omitted).*fn2

[2] The Supreme Court explicitly articulated that "activi-ties performed either before or after the regular work shift, on or off the production line, are compensable under the portal- to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities..." Id. at 256. The Supreme Court concluded that "it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees." Id.*fn3

As we noted in Alvarez, 339 F.3d at 902, the Portal-to-Portal Act provides that:

[N]o employer shall be subject to any liability or punishment under the [FLSA]... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947-

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postlimi-nary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities...

29 U.S.C. § 254(a) (1996).

The Department of Labor (DOL) has promulgated general policy statements regarding the Portal-to-Portal Act's effect on the determination of compensable activities. These policy statements are not entitled to deference, but are "entitled to respect... to the extent that [they] have the power to persuade." Christensen v. Harris County, 529 U.S. 576, 587 (2000) (citations and internal quotation marks omitted).

In 29 C.F.R. § 790.8, the DOL declared that principal activities "include[ ] all activities which are an integral part of a principal activity." 29 C.F.R. § 790.8(b) (footnote reference omitted). Section 790.8 also provides the following example of integral activities:

Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a preliminary or postliminary activity rather than a principal part of the ...


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