THE FAIR LABOR STANDARDS ACT

TULARE COUNTY DEPUTIES OBTAIN $1.1 MILLION FOR OVERTIME COMPENSATION FOR PRE- AND POST-SHIFT ACTIVIES

by David E. Mastagni & James R. Traber

Members of the Tulare County Deputy Sheriffs Association brought suit against the County of Tulare over violations of the Fair Labor Standards Act (FLSA) in refusing to pay them for pre- and post-shift activities. David E. Mastagni and Will Yamada, lead counsels for the plaintiffs, successfully obtained a global settlement of $1.1 million dollars for 132 deputies.

Pursuant to the FLSA, employees are entitled to receive overtime compensation at one and one-half times their “regular rate” of pay when they work more than 40 hours in a week. 29 U.S.C. § 207(a). 29 C.F.R. 553.221(b) creates an obligation for employers to compensate employees for all pre-shift and post-shift activities it suffers or permits employees to perform, which are integral and indispensable to an employee’s principal activities. This principle was recently reaffirmed by the U.S. Supreme Court in IBP, Inc. v. Alvarez, 126 S.Ct. 514 (2006), where the court held that time spent “donning and doffing” specialized protective clothing and safety gear was integral and indispensable to workers in a chicken processing plant, and thus compensable under the FLSA.

Pre- and Post-Shift Activities Performed by Deputies Assigned to Correctional Facilities

The County of Tulare had a practice of requiring deputies assigned to jails and patrol positions to perform uncompensated work before and after their scheduled shifts. The types of duties performed by the deputies varied depending on their assignment. Deputies assigned to correctional facilities performed uncompensated work before and after their scheduled shifts. Prior to their scheduled shifts, these deputies were required to perform and verify inmate counts, sign out keys, and receive briefings from outgoing deputies, as well as don safety gear. After their scheduled shifts ended, these deputies were again required to perform and verify inmate counts, exchange keys, and provide briefings for oncoming deputies.

Pre- and Post-Shift Activities Performed by Deputies Assigned to Patrol

Patrol deputies were required to arrive early to read and correct crime reports which were returned to them, and don safety gear. Patrol deputies would also receive informal briefings individually, and formal briefings as a group prior to their shifts. Patrol deputies were then required to perform vehicle inspections, load their vehicles, and load their gear into their patrol vehicles prior to their scheduled shifts. After their shifts ended, patrol deputies unloaded their vehicles, drafted reports, and provided informal briefings to oncoming deputies.

Pre- and Post-Shift Briefings and Inmate Counts Are Compensable

29 C.F.R. 553.221(b) states that “all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and re-racking fire hoses.” The Fifth and Tenth Circuits have not hesitated to require compensation for pre-shift briefing periods. Moreover, the Eleventh Circuit expressly held the time spent by police officers writing reports after the conclusion of their shifts must be compensated. The deputies’ pre- and post- shift activities were not only known to but required by their employer, and were integral and indispensable to their principal law enforcement activities in the jail and on patrol.

Settlement

After the close of discovery, the County agreed to participate in mediation. At mediation, the deputies presented a formidable argument the counts and briefings they performed before and after their scheduled shifts were “integral and indispensable” to their principal activities on patrol and in the correctional facilities for safety and security reasons.

Ultimately, the County agreed to provide $1,100,000.00 to compensate the plaintiffs for their claims for back-wages, liquidated (penalty) damages, attorney fees. The County has prospectively implemented policies to ensure that deputies are compensated for pre and post shift activities that are integral and indispensable to their law enforcement duties.