By Ariel D. Fenster and Brett C. Bartlett
Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court’s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.
Should we be paying our employees before their shifts start? The answer is highly fact dependent. In recent weeks, the Eleventh Circuit affirmed the Middle District of Florida’s decision that the time deputies spent putting on their police gear at home and driving to and from work in their patrol cars was not compensable. In Llorca v. Sheriff Collier County, Florida, the Eleventh Circuit analyzed what type of pre-shift activities may qualify for hourly compensation. The decision provided a deep analysis of the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996. In relevant part, the act states that an employer does not have to pay its employees for activities that are “preliminary or postliminary” to the “principal activity” of the job. The U.S. Supreme Court has long interpreted the term “principal activity or activities” to include all activities that are an “integral and indispensable part of the principal activities.”
What Does “Integral and Indispensable” Mean?
In order to determine what activities are integral and indispensable, it is important to understand the definitions of these types of activities. The United State Supreme Court’s decision in Integrity Staffing provides guidance on the matter and defines the words as follows. An integral activity “forms an intrinsic portion or element of the principal activities as distinguished from an adjunct or appendage.” An indispensable activity “means a duty that cannot be dispensed with, remitted, set aside, disregarded, or neglected.” The test is tied to the productive work an employee is employed to perform. Thus, the fact that an employer requires or benefits from the activity does not establish it integral and indispensable. As you can imagine, cases analyzing whether activities are integral and indispensable are highly fact-dependent and there is no bright-line test. A look at the facts in Llorca helps to illustrate the integral and indispensable test and build off of the Supreme Court’s decision in Integrity Staffing.
Plaintiffs are former deputy sheriffs in Florida. As part of their job, Plaintiffs were required to arrive at work dressed in their uniforms and equipped with a number of protective gear items. Plaintiffs contend it took them up to thirty minutes at home to get “suited up.” Plaintiffs also commuted to and from work in marked patrol cars. During their commute time, they were required to have their radios on and respond to any major calls or emergencies. They were also told to observe the roads for traffic violations and engage in traffic law enforcement during their commutes. Of note, Plaintiffs were paid for any time they spent actually responding to emergencies or enforcing traffic violations. Plaintiffs filed suit alleging they should have been paid for: (1) the time they spent donning their uniform and protective equipment at home and (2) their commute time.
Getting Dressed: Is That Compensable Time?
After analyzing the facts of the case, the court held that uniform and protective gear may arguably be “indispensable,” but it is not “integral.” The gear is arguably indispensable because the deputies need the items to perform their job. The court held that the act of donning and doffing the gear, however, is not integral to the job activities. The court’s reasoning hinged on the fact that the Plaintiffs were allowed to don and doff their protective gear at home and actually did so. In relying on a DOL opinion, the court explained that dressing in uniform is akin to changing clothes under normal conditions and that time is not compensable.
An important takeaway: where an employee gets dressed matters. In a slew of other decisions, courts have held that giving the employee the option to change at home is important. Even if an employee chooses to get dressed at work, the option to change at home lends itself to the time not being compensable.
Commuting To Work: Is That Compensable Time?
With regard to the commute time, the court stated this is the very type of time excluded from the Portal-to-Portal Act. The general rule is that the time a worker spends driving to and from work is not compensable, and the Federal and Sixth circuits have similarly held that a law enforcement officer’s monitoring of a police radio or observing the roads for emergencies while en route to work do not qualify as exceptions to that general rule. The court noted, “it would be highly inappropriate for uniformed officers to drive to and from work in marked patrol vehicles without observing the road for traffic violations and other incidents.” The court explained that while the commute time could be integral to the job, it is not indispensable. While it would undermine the very essence of law enforcement to ignore traffic law violations during their commute, the deputy sheriffs could fully perform their job without observing the road to and from work.
These cases are highly fact-dependent and decided on a case-by-case basis. Even so, there are still some lessons to be learned from the Eleventh Circuit’s recent decision.
- Review any uniform changing policies. If employees have the option of wearing clothes and equipment to and from work, a court is less likely to conclude that those employees are entitled to compensation for time spent donning and doffing such clothes and equipment.
- If you do need to require employees to change in and out of clothing or protective gear on your premises, keep track of the actual time each employee spends doing so.
- Think about what activities the employees are completing during their commute time. Are the activities indispensable to the position? For example, think about whether the employee is making stops to and from work to complete job duties.