Supervisors, beware: VT court allows minefield of claims to proceed

Wage and Hour Law

Many employers struggle with determining whether certain activities constitute hours worked for which employees should be paid. If an employer gets it wrong, it can be a costly mistake. Therefore, employers must pay careful attention to the issue. Luckily, the U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) recently issued a decision that provides helpful guidance in answering the perpetual “to pay or not to pay” question.

Facts

Assistant urban park rangers (AUPRs) are employed by New York City to perform a range of public services in its parks, including providing directions and other information to individuals using the parks; helping individuals involved in accidents or victims of unlawful activity; investigating accidents and illegal activity; implementing crowd control procedures at special events; providing safety and educational information to the public; and issuing summonses to and making arrests of persons suspected of unlawful conduct. AUPRs are required to wear uniforms and carry specific equipment. The city requires them to wear an “olive drab” jacket and matching pants, a “Smokey Bear”-style hat, and various park department insignia. As for their equipment, AUPRs wear a bulletproof vest and a utility belt equipped with handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.

A group of AUPRs brought a collective action against the city arguing they were inadequately compensated under the Fair Labor Standards Act (FLSA). In particular, the AUPRs argued that the city improperly failed to pay them for compensable work activities performed immediately before and after their regularly scheduled shifts—namely, the time they spent putting on and taking off their uniforms and equipment (otherwise known as “donning” and “doffing”). The AUPRs estimated that the time needed to don and doff their uniforms each day ranged from approximately five to 30 minutes.

The city asked the court to dismiss the AUPRs’ FLSA claim, maintaining, in part, that the time they spent changing into and out of their uniforms was not integral and indispensable to their principal activities during their shifts and was therefore noncompensable. The court agreed with the city, concluded that the AUPRs’ donning and doffing of uniforms were not compensable activities, and ordered the case closed. The AUPRs appealed the court’s decision to the 2nd Circuit.

Legal framework The FLSA regulates the manner in which employees must be paid and requires payment of wages for the principal activities that employees are employed to perform, including tasks that are an integral and indispensable part of their principal activities, even if those tasks are completed outside regularly scheduled shifts. Conversely, the FLSA does not require payment for time spent on activities that are preliminary or postliminary to employees’ principal activities.

For an activity to be integral, it must be intrinsically connected to a principal activity that employees were hired to perform. An activity is indispensable if it is necessary to the performance of a principal activity. Combining the two requirements, an activity is integral and indispensable—and therefore compensable—if it is an intrinsic element of employees’ principal activities and one the employee cannot do away with if he is to perform his job.

2nd Circuit’s decision

On appeal, the 2nd Circuit began its analysis of the AUPRs’ claim by noting that a robust, fact-dependent inquiry is required before reaching a conclusion on whether performing a specific activity qualifies as an integral and indispensable job duty or whether the activity is more appropriately described as a noncompensable preliminary or postliminary task. The court explained that several factors are evaluated in determining whether an activity is an integral and indispensable part of employees’ principal activities, including:

• Is the activity undertaken for the employer’s benefit?
• Does the employer require the employees to perform the activity?
• Are the employees required to perform the activity at the workplace?
• Can the activity be characterized as a legitimate effort to protect against heightened workplace dangers that transcend ordinary risks?

The court explained that affirmative responses to those questions indicate that, more likely than not, the activity will be viewed as integral and indispensable to employees’ work duties and therefore will be deemed work time for which they should be compensated.

The court then carefully evaluated each of the relevant factors in light of the facts pertinent to the donning and doffing of the AUPRs’ uniforms and equipment. In doing so, the court noted that the AUPRs wear the uniforms for the city’s benefit and lack any choice in the matter. Indeed, the city prescribed the components of the uniform in detail, and the AUPRs could be disciplined for noncompliance. The court also observed that the city required the AUPRs to don and doff their uniforms at the workplace rather than allowing them to report to work already dressed.

Even more significant, the court noted that the uniform seemed vital to the primary goal of the AUPRs’ work. The court elaborated by stating that the AUPRs’ utility belts held items used to perform their essential law enforcement duties, such as a summons book, a baton, mace, and handcuffs. Likewise, the court remarked that the AUPRs’ flashlights and radios could provide crucial help in tracking suspects and coordinating with other municipal employees. The 2nd Circuit classified the utility belt equipment as tools of the AUPRs’ trade, drawing an analogy to a butcher’s knife, a K-9 officer’s dog, and a radiologic technician’s X-ray machine.

The court also focused on the AUPRs’ bulletproof vests, stating that although they closely resemble other necessary protective equipment such as helmets, safety glasses, and metal mesh, the vests truly function solely to protect against risks unique to law enforcement (i.e., sustaining gunfire). Therefore, the act of putting on and taking off the vests was clearly collateral to the AUPRs’ principal activities.

Finally, the court observed that the professional clothing required by the city also appeared to be essential to the AUPRs’ work. The uniforms serve to identify AUPRs to the public, an objective that is fundamentally intertwined with the purpose of the AUPRs’ employment. The court stated that the clothing, “with its recognizable color scheme and insignias, not only attracts citizens in need of assistance but also establishes an AUPR’s authority to investigate violations, issue summonses, make arrests, and otherwise intervene in emergency situations.” The court focused on the fact that the AUPRs’ uniforms served as a visible signal of authority that effectuated their efforts to instruct the public and enforce park rules.

After considering the pertinent facts, the 2nd Circuit ultimately concluded that the donning and doffing of uniforms and equipment constituted activities that were integral and indispensable to the principal job functions of the AUPRs. The court noted that the uniforms and equipment were essentially tools of the trade for the AUPRs to use in the performance of their workrelated tasks. Thus, the 2nd Circuit threw out the opinion of the lower court and sent the case back for further proceedings.

Significance for Vermont employers

While each situation depends on the unique set of facts presented, this case serves as a useful guide for employers that have employees who spend time putting on or taking off uniforms or protective equipment before or after their scheduled shifts. The key for employers is closely and carefully examining the uniform or gear at issue, employees’ specific principal activities, and the relationship between them.

Amy McLaughlin can be reached at amclaughlin@dinse.com or 802-859-7031.