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Should workers be compensated for donning and doffing this equipment?

The U.S. Second Circuit Court has issued an opinion that attempts to further clarify when workers should be paid for putting on and taking off equipment (including safety gear) before and after their shifts. 

Assistant Urban Park Rangers (AUPR) employed by New York City’s Department of Parks and Recreation filed a lawsuit in federal court claiming they should be paid for the time spent donning and doffing required uniforms and equipment.

The parks department requested summary judgment, which a district court granted. The AUPRs appealed, and the Second Circuit recently issued its opinion, which included substantial guidance regarding payment for donning and doffing of various work gear.

The uniforms and equipment required for the AUPRs include:

  • specific shifts, pants and hats
  • a bulletproof vest
  • a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, mace, a summons book and a tape recorder.

Estimates of the time required to put on and take off the uniforms and equipment range from 5 to 30 minutes.

NYC parks and rec argued the donning and doffing time isn’t compensable for three reasons:

  1. it’s not “integral and indispensable” to the AUPRs’ principal duties
  2. the time spent is “de minimis” (short), and
  3. it’s not compensable under the rangers’ collective bargaining agreement.

The district court agreed with the first claim and found it wasn’t necessary to delve into the second and third claims.

The Second Circuit has overturned that ruling and sent the case back to decide all three issues, based upon guidance it gives in its decision.

What’s ‘integral and indispensable?’

We’ve covered the recent flurry of federal court cases regarding compensation for donning and doffing of safety gear. The Second Circuit reviews much of the recent case history and shows how it can be a guide for deciding whether to pay employees for time putting on and taking off safety gear.

Integrity Staffing Sols. Inc. v. Busk (2014) states 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.”

In Reich v. N.Y.C. Transit Auth., the Second Circuit found “the more the activity is undertaken for the employer’s benefit, the more indispensable it is to the primary goal of the employee’s work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable.”

Also, an employer’s requirement that pre- or post-shift activities take place at the workplace may indicate they are integral and indispensable.

Additional previous case law that can provide guidance, according to the Second Circuit:

  • In King Packaging, the Supreme Court found a slaughterhouse employee’s knife sharpening was an integral and indispensable activity of butchering.
  • In Kosakow v. New Rochelle Radiology Associates, the Second Circuit concluded powering up and testing x-ray machines is an integral and indispensable activity for a radiology technician.
  • In Reich, a K-9 officer’s feeding, walking and training of his dog was integral and indispensable.
  • In Steiner, the Supreme Court found the time employees at a battery manufacturing plant spent showering and changing clothes at the workplace after a shift was integral and indispensable because it prevented lead poisoning
  • On the other hand, in Gorman, the Second Circuit found nuclear plant employees didn’t protect against heightened dangers merely by donning and doffing “generic” helmets, safety glasses and steel-toed boots.

Using those precedents, the Second Circuit found it could be reasonable to conclude that the AUPRs’ donning and doffing of uniforms and equipment are integral and indispensable to their principal activities.

The appeals court remanded the case to the district court to decide not only whether putting on the gear is “integral and indispensable,” but also the questions about whether it’s de minimis and if it’s barred by a collective bargaining agreement.

(Perez et al v. The City of New York, U.S. Circuit Crt. 2, No. 15-315, 8/2/16)

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