Litigation
The Concord Police Patrolmen’s Association has been engaged in ongoing negotiations with the City of Concord over what we had identified as a pattern of incidents regarding violations of the Federal Fair Labor Standards Act (FLSA). The Fair Labor Standards Act of 1938 is federal law that provides for minimum standards for both wages and overtime entitlement, and spells out administrative procedures by which covered work time must be compensated.
The city, after much negotiation and discussion, finally recognized and resolved the following three of our identified issues:
1) Formula adjustment in the calculation rate for Detective overtime to include taxable clothing allowance compensation.
2) Recognition that time owed calculations for overtime is legally mandated at time and a half, not straight time.
3) All employees are required to be paid for travel time when traveling to out of town locations, not just the driver of a vehicle.
The primary issue remaining is the compensation of officers for working time activities that include the "Donning and Doffing" of uniforms and protective gear beyond their currently compensable workday. The city was unwilling to work in good faith to resolve this matter. We were left with no option but to seek remedy through the federal court system.
To put things in perspective, Concord Patrol Officers are not allowed to return to the station at the end of their watch until five (5) minutes before the end of their shift. They must then clean out the vehicle and remove their gear, meet with the oncoming officer to debrief him, exchange paperwork, complete paperwork for turning in, stow away department and personal equipment, and finally doff their gear. The process takes anywhere, on average, from fifteen (15) minutes to a half hour (30) beyond their workday, and is uncompensated.
The pre shift situation and time requirements are similar when uniform and gear preparation, or donning, takes place. There is no other time period allocated for the inspection and function checking of our specialty gear and uniform preparation prior to the beginning of a shift.
The current debate over whether such time is compensable was ignited by the recent unanimous United States Supreme Court decision in IBP v. Alvarez, which both re-affirmed and expanded the courts 1956 decision in Steiner v. Mitchell, 350 U.S. 247. Under Steiner, activities such as the donning and doffing of specialized protective gear that are performed either before or after the regular work shift, on or off the production line were deemed compensable under the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.
Alvarez essentially stands for the proposition that when the protective gear is integral and indispensable to the performance of the job, the workday starts when that gear is put on in the locker room, not when the employee arrives at their designated work station. For police officers, that means their shift no longer starts when they appear fully suited for briefing.
Based on this decision, many police associations across the country have filed Federal lawsuits to be compensated for this time. Police associations in Milwaukee and Honolulu have already settled law suits, the California Highway Patrol has increased their uniform allowances by 3½% of the officers’ base pay to compensate for this time, and other law suits are pending in numerous cities across the country including Los Angeles, Denver, Mesa, and Phoenix, just to name a few.
The key question in the current dispute is whether the equipment worn by patrol officers is integral and indispensable to the performance of the job. It is unthinkable to send a police officer out into the streets to arrest bad guys without a gun, let alone the full complement of additional safety gear that is carried. Without question, officers are able to go home to their families after each shift because they wear this gear while performing their sworn duty. The hard truth is that the fundamental duty of a police officer is to protect others, safeguard lives and property, and to keep the peace. Our protective gear and tools are the next most important element following training.
The City of Concord has tried to get around the application of Alvarez to law enforcement by claiming that it only takes a couple minutes to put on all the safety gear necessary to protect and serve the community. Clearly these folks have never actually undertaken the task.
Taken together, the required uniform and safety gear weighs approximately 20-30 pounds. The body armor alone weighs approximately 10 pounds. All equipment needs to be functional and securely fastened to the uniform belt. The sheer bulk of the required uniform and safety gear is both cumbersome and awkward to put on and remove. On average, it takes approximately 15 minutes average both before and after the shift for a uniformed officer just to don and doff the required safety gear and uniform. The time can be much higher when doing so with more advanced specialty gear such as that worn by tactical officers.
The total amount of daily time spent performing this function, pre and post shift combined, is approximately 30 minutes, on average. That aggregate amount of time cannot be considered de minimis, as the city alleges. (Under the FLSA, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded as de minimis.)
The regulations interpreting that rule provide that an employer cannot arbitrarily fail to count as hours worked any part, however small, of an employee fixed or regular working time, or practically ascertainable period of time he is regularly required to spend on duties assigned to him. See 29 C.F.R. section 785.47.
It is well established under the FLSA that an employee must be paid for work performed as long as the work was suffered or permitted, by and within the constructive or actual knowledge of, the employer. The rule applies even to work performed away from the premises or job site. 29 C.F.R.section 785.12.
Thus, since the City of Concord has actual knowledge that their police officers are donning and doffing safety equipment that is indispensable to performing their job functions, the officers must be compensated for the time spent.
The Fair Labor Standards Act was enacted to provide a fair day pay for a fair day work. It takes time, energy and effort to prepare, put on and take off law enforcement safety gear. That equipment is undeniably essential to the ability of a police officer to perform the job. Other than a stubborn adherence to outdated shift scheduling practices, there is no good reason why our police officers should not be given time at the start and end of each shift to perform these required tasks.
Copyright © 2007 by Concord Police Patrolmen's Association.
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