The Law Has Not Changed:  Police Officers Still Don’t Get Paid For Getting Dressed And Putting On Gear

The FLSA does not require employers to compensate their employees for putting on shirts, pants, shoes, socks, belts and undergarments for work.  Such activities are deemed incidental or “preliminary” to work and are excluded from FLSA coverage.  (See Portal-to-Portal Act, 29 U.S.C. § 252 et seq.)  The United States Supreme Court has explicitly stated that “changing clothes … under normal conditions” is not compensable under the FLSA.  (Steiner v. Mitchell (1956) 350 U.S. 247, 249.)  This rule applies not only to an office worker who daily must put on a suit and tie, a line-order cook who is required to wear gloves and a hairnet for safety reasons, or a construction worker who must put on a tool belt and a hardhat to avoid being hit by falling debris, but equally to a police officer who daily must get dressed in his or her uniform and put on gear for safety reasons.

Recently, the Supreme Court issued a ruling addressing the compensability under the FLSA of time spent by poultry workers waiting in line at the employer’s facilities to check out, and then don, an elaborate set of specially-designed protective gear prior to the start of their official work shift.  (IBP, Inc. v. Alvarez (2005) 126 S.Ct. 514.)  The Alvarez Court ruled that this employee activity, unlike normal getting dressed for work, was an “integral and indispensable” part of the employees’ principal work activities, and thus compensable. 

The Court’s decision addressed the unique situation of poultry workers required by their employer daily to perform a cumbersome, time-consuming donning and doffing ritual of special protective gear at an employer-designated locker area prior to the start of the official workday.  The Alvarez Court explained that such “integral and indispensable” work activities—daily performed at a time and place of the employer’s choosing—must themselves be deemed “principal” work activities, which must be compensated under the FLSA.  In reaching this conclusion, the Court did not break new ground but simply reaffirmed the basic FLSA principals established by the 1947 Portal Act and the 1956 Steiner decision.

Even though the Alvarez opinion explicitly reiterates that preliminary activities such as putting on standard uniforms and non-unique protective gear (e.g., hardhats, gloves, hairnets, safety glasses, earplugs, etc.) are not compensable under the FLSA, some police officer unions are claiming that Alvarez actually transformed more than half a century’s worth of FLSA jurisprudence.  They claim that law enforcement agencies are now required to compensate police officers for daily putting on their uniforms and gear.  There are several reasons why this is not so.

Donning Police Gear Is A De Minimis Activity

In Alvarez, the Court found that the employer required their factory workers daily to wait in line at the employer’s facilities prior to the official start of the work shift to check out elaborate safety gear, including heavy chain-link metal aprons, plexiglass arm guards, as well as special gloves designed to protect employees from sharp blades, saws and bone fragments.  The poultry workers then had to don this elaborate set of specialized protective gear in the employer’s designated changing area and trudge to their actual workstations.  Thus, in order to be ready to work at the start of their official shift, the employees daily had to arrive on the employer’s premises well before the start of their official work shift. 

Moreover, at the end of their shift, the workers were required to repeat the process all over again (in reverse), trudging back to the employer’s designated changing area, taking off all the special gear, and then waiting in line to check in the equipment at the employer’s special locker area.  The Alvarez Court determined that the amount of time employees daily spent on donning and doffing their gear was sufficiently large to make it administratively feasible to record such time.  On the other hand, an activity that involved a segment of time that was too small to record as a practical matter would be considered de minimis, or legally insignificant, for FLSA purposes.  This has been specifically contemplated by the Department of Labor whose regulations provide that de minimis time need not be recorded for compensation.  See 29 CFR section 785.47.

Police officer unions are estimating that it takes their officers 20-30 minutes each day to put on an equipment belt and a bullet proof vest.  20-30 minutes!?  The officers do not have to wait in line to retrieve this gear from the employer.  Neither the belt nor the vest involves a particularly unusual or cumbersome mechanism which would make it particularly difficult or time-consuming to put on.  This is not to minimize the importance of the gear or to suggest that officer safety is not paramount.  However, an officer’s pre-prepared equipment belt has much of its gear already prepared and included as part of the belt.  It is relatively easily strapped on.  Certainly, it does not take 20-30 minutes to put on such a belt.  Similarly, it is difficult to fathom how putting on a bullet proof vest, could take longer than a minute or two.  We are not talking about the importance of officer safety or the value that police officers provide to the public.  We are simply addressing whether they should be paid for the time it takes them to put on their safety gear.  It is indeed de minimis.

The only way the police unions can get to 20-30 minutes is by including the time it takes officers to put on their work uniform.  But, as already stated, the time it takes an employee to put on his or her shoes, socks, pants, shirt, belt and undergarments is “preliminary” to work and not compensable under the FLSA.  The clothes portion of a police officer’s uniform is not specialized protective gear, but rather a uniform like any other public agency employee.  Police officers do not receive special treatment under the law for getting dressed.  The only question here is the time spent putting on specialized safety gear, not clothes.

Police Gear Is Not Uniquely Specialized Protective Equipment

In Alvarez, the Court found that the food processing employees were required to don elaborate chain-link metal aprons, plexiglass arm guards, and special gloves designed to protect employees from sharp blades, saws and bone fragments.  Such unique, specialized protective equipment was “integral and indispensable” to the performance of their principal work.

Alvarez explicitly contrasted this kind of specialized protective gear with standard uniforms and non-unique protective gear, such as hardhats, gloves, hairnets, safety glasses, and earplugs, which do not constitute compensable work under the FLSA.  The donning of standard issue gear belts and uniforms by police officers constitutes such excluded, “preliminary” activity. 

Nor are bulletproof vests especially unique.  For instance, they are commonly worn by private security guards and other workers.  Thus, unlike the specially designed equipment required by the Alvarez employees, bullet proof vests simply are not unique enough to be given special treatment under the FLSA.

Police Officers May Don Their Gear At Their Own Convenience

Under the FLSA, the workday—during which the employees are required to be available to work at the employer’s behest—only begins at the start of the official shift.  To be sure, all employees engage in certain preparatory activities—getting dressed, commuting and walking to their work stations—prior to beginning the primary work functions for which they are hired.  However, such activities are explicitly deemed “preliminary” under the Portal-to-Portal Act passed by Congress in 1947 and are not compensable under the FLSA.  One of the distinguishing features of such preliminary activities is that employees have considerable leeway as to when and how to perform these activities. 

In sharp contrast, the employer in Alvarez required its employees to check out and don an elaborate set of special protective gear on the employer’s premises prior to the start of the official work shift.  To be ready to work at the beginning of the work shift, the employees therefore daily had to arrive on the employer’s premises as much as half an hour prior to the start of the official shift.  The Alvarez Court held this activity to be “integral and indispensable” to these employees’ performance of their principal work duties, and thus compensable.

Police officers generally are not required to put on their uniforms on the employer’s premises.  They can get dressed, at their convenience, either at work or at home, and are not beholden to the employer’s requirement that such uniforms daily be checked in and out at an employer-designated storage area.  At worse, they may have to put on their bullet-proof vest and gear belt once they get to work.  But even for this they do not have to wait in line; they simply go to their own personal locker to retrieve the items at their convenience.  Officers are free to arrive at work just before the start of their shift or, if they choose, they can arrive 30 minutes before to get ready.  In Alvarez, the workers did not have this choice.  They had to arrive at the employer’s equipment area at the precise time the employer made the required equipment available to them, or else they would not be ready to begin work at the start of the official shift.

What Will Happen Now?  The Courts Will Decide

Notwithstanding the opinions of the advocates, the question of whether police officers will be entitled to be compensated for the time they spend getting dressed and putting on gear will likely soon be addressed by the courts.  Police unions have wasted no time in demanding payment for their members and assisting their members in filing lawsuits in federal court to get the issue decided.

Although the Alvarez decision reaffirms that the courts will make individualized determinations as to whether an employee’s particular pre-shift activity is compensable under the FLSA, the decisions which will be issued in the next few years will likely shape how police departments nationwide address the issue of compensation for donning and doffing police gear.  Since very few departments actually compensate officers for donning and doffing police gear, a ruling requiring compensation will create a unanticipated financial burden on departments.

No matter how this matter turns out, you can be assured that it will have nationwide impact.  We believe the factors outlined above addressed by the Alvarez court should result in a finding that generally, time spent by police officers putting on safety gear is not compensable.