Second Circuit Provides Further Guidance on Compensability of Donning and Doffing Time

The FLSA requires that covered employees be compensated not only for time spent on the principal activities he or she is engaged to perform but also tasks that are an integral and indispensable part of those principal activities. In Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), the U.S. Supreme Court explained that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

Recently, the Second Circuit had an opportunity to apply Busk’s “integral and indispensable” standard in the context of a donning and doffing claim. In Perez v. City of New York, __ F.3d __, 2016 WL 4087216 (2d Cir. Aug. 2, 2016), Assistant Urban Park Rangers (AUPRs) employed by the City’s Department of Parks & Recreation claimed an entitlement to compensation for time spent donning and doffing uniforms and equipment. The district court granted summary judgment for the City, but the Second Circuit reversed, finding that a reasonable jury could conclude the AUPR’s donning and doffing activity was integral and indispensable to their principal law enforcement and public assistance activities.

As an initial matter, the Court of Appeals emphasized that the donning and doffing of uniforms was by all indications undertaken for the City’s benefit, as evidenced by the fact that the Parks Department (i) “prescribes the components of the uniform in painstaking detail, and AUPRs may be disciplined for non-compliance”; and (ii) “requires AUPRs to don and doff their uniforms at the workplace.” Moreover, the Second Circuit explained, “it is the professional Parks Department clothing, with its recognizable color scheme and insignias, that not only attract 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 next observed that the protective gear carried by the AUPRs appeared to be vital to the primary goal of their work in that “an AUPR’s utility belt holds items used to perform law enforcement duties” and so may be properly classified as tools of the trade: “A summons book is, of course, necessary for the issuance of summonses. A baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a radio and flashlight may prove crucial in tracking suspects and coordinating with other municipal employees.” Therefore, the Court opined, “a reasonable factfinder could conclude that the donning and doffing of an AUPR’s utility belt are integral and indispensable tasks.” Likewise, the Circuit Court concluded that “the donning and doffing of an AUPR’s bulletproof vest may also qualify as integral and indispensable” since “it guards against ‘workplace dangers that transcend ordinary risks,'” in particular “[t]he risk of sustaining gunfire while enforcing municipal laws.”

Perez offers yet another illustration of the highly fact-intensive, job-specific nature of the “integral and indispensable” inquiry.

Lawrence Peikes
Wiggin and Dana LLP

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