TIME SPENT GETTING INTO AND OUT OF PROTECTIVE GEAR AND CLOTHING MAY BE COMPENSABLE

by David E. Mastagni, Esq. & Straun W. Boston, Esq.

A recent U.S. Supreme Court decision requiring a meat processing company to pay its employees for time spent "donning and doffing" specialized protective clothing and safety gear has raised the possibility peace officers may be entitled to compensation for spending time getting into and out of vests, hazmat suits, bomb squad gear, and similar special equipment.

In IBP, Inc. v. Alvarez (2005) 126 S.Ct. 514, employees at a chicken processing plant in Washington sued after the company refused to pay them for the time they spent each day changing into and out of protective clothing and equipment. The employees could not work without wearing the clothing, but were paid for only four minutes of "clothes-changing" time.

The Supreme Court held the Fair Labor Standards Act (FLSA) required the company to compensate the employees for the time spent "donning and doffing" the protective clothing and equipment. Under the FLSA, "[d]offing gear that is integral and indispensable to employee's work is a principal activity" for which the employee must be paid. (IBP v. Alvarez at p. 527.)

Courts Apply Three-Part Test to "Clothes-Changing" Time

The chicken plant employees wore elaborate protective gear such as chain link metal aprons, vests, plexiglass armguards, and special gloves. The vests, "moon suits," and other equipment worn by peace officers assigned to hazmat or EOD duties similarly require significant "clothes-changing" time. Whether that time is compensable, however, depends on a three-step analysis developed by the Ninth Circuit in its review of the IBP case.

The Ninth Circuit "test" asks (1) is the "donning and doffing" an integral and indispensable activity; (2) is the activity performed for the benefit of the employer; and (3) is the time spent donning and doffing the gear or equipment de minimis?

Generally, time spent changing in and out of uniform is not compensable and is specifically excluded under the "custom or practice" exception of the FLSA. However, the Supreme Court has held that protective gear is not clothing: Rather, personal protective equipment generally refers to materials worn by an individual to provide a barrier against exposure to workplace hazards.

Because a gun belt is required gear and a bullet proof vest is considered safety gear, the question of whether these items are compensable is not clear. The issue of whether these items are 'unique' and the amount of time spent donning and doffing these items are deciding factors. Even though the time spent per officer donning and doffing their gear may be no more than a few minutes, the potential economic impact can be substantial when these minutes are multiplied by all the officers over the course of months or even years.

However, while the issue of whether standard patrol equipment is compensable is debatable, special units such as SWAT, K-9, dive team, search and rescue and mounted patrol equipment is not. The issue is weather the equipment used by the officer is unique and whether the time spent donning and doffing the special gear is not insubstantial.

For example, in the case of a SWAT team member, the required equipment is significantly different than standard patrol equipment and requires a significant amount of time to gear up properly. Thus, if the equipment is 'unique' in the sense that it is not worn by the standard patrol and the time spent donning and doffing the gear is not de minimus, the time spent donning and doffing is compensable.

In Alvarez, the court squarely addressed the issue of whether donning and doffing of safety equipment fell within the ambit of Section 203(o) and held that such activity does not fall within this statutory provision. This finding should apply to all safety equipment that a police officer or deputy sheriff is required to wear. Thus, under the FLSA an officer should be compensated for his time when he is required to wear any equipment that an is considered unique and requires more than a few moments of time to don and doff.