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City Defeats Police Grievance Seeking MOU Overtime For Uniform Donning And Doffing
LCW Partners Brian Walter and Geoffrey Sheldon and Associate Attorneys Danny Yoo and Emanuela Tala defeated a “class action” grievance arbitration on behalf of a city. The stakes were high as the grievance sought overtime pay going back four years prior to the filing of the grievance in November 2006 and continuing until the grievance was resolved plus interest, civil penalties, and attorney fees.
The grievance arbitration concerned the interpretation of an overtime provision in the memorandum of understanding between the city and the police union (MOU). The MOU provision stated, “All hours or portions thereof worked in excess of [regularly scheduled] work hours … shall be overtime including hours worked by an employee when on a regular day off, hours in lieu of a holiday or vacation pay.”
The union claimed that the provision obligated the city to pay MOU (as opposed to Fair Labor Standards Act (FLSA)) overtime for time peace officers spent “donning” and “doffing” their uniforms and related safety gear. The union claimed its grievance was consistent with the city’s past practice and its intent during the negotiations of the terms of the MOU.
The city claimed that the MOU overtime provision did not cover donning and doffing. To support its position, the city presented evidence that the city and union considered adding a provision to the MOU in 2009 to compensate officers for donning and doffing their uniforms, but the city ultimately rejected the provision. Also, the MOU provided for a cash payment for “the cost of uniform replacement, maintenance, and other professional expenses,” but was silent on the issue of donning and doffing uniforms.
The union argued that there was an established past practice to pay for donning and doffing. The arbitrator disagreed, noting that the city and union had been litigating this issue for years prior to his ruling on the union’s grievance. That litigation proved the absence of any mutual agreement.
The union also argued that the city’s previous rejection of an MOU provision that would compensate officers for donning and doffing did not undermine the parties’ intent that officers be compensated for donning and doffing. The arbitrator disagreed and found that if the city intended to include compensation for donning and doffing as part of the MOU, it would have indicated as much in the MOU’s various provisions concerning overtime and payments for uniforms. The arbitrator further noted that the union’s view of the city’s undisclosed intent during MOU negotiations did not determine the mutual intent of the parties.
Lastly, the union argued that even if the parties had no affirmative intent to compensate officers for donning and doffing, intent should be inferred in order to maintain compliance with the definition of “hours worked” under California law. The arbitrator held that he was precluded from addressing that argument because the union’s grievance did not address the applicability of State law. The arbitrator declined to expand the grievance to consider external law.
For these reasons, the arbitrator found that the MOU’s overtime provisions did not obligate the city to pay overtime for time officers spent donning and doffing their uniforms and related safety gear.
Wage and hour issues are often raised on behalf of a large category or class of employees and can subject public agencies to substantial liability. LCW attorneys regularly defend public agencies against allegations of unpaid overtime and can assist agencies to limit or eliminate liability.