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What do street cops have in common with people who carve up slaughtered cows, pigs and other animals for a living? A couple of wage-and-hour plaintiff lawyers say both must be paid for the time it takes to change into protective clothing and safety gear. There’s not much question, thanks to federal case law, that this right applies to meatpackers who cover themselves in mesh wiring and Kevlar to shield their bodies from flying knives, bones, blood and gore. But so far, the courts have not directly addressed whether public safety officers should also be paid under federal labor laws for getting dressed for work. Alison Berry Wilkinson, a name partner at the East Bay firm Rains, Lucia & Wilkinson, is determined to change that. In an amended complaint filed this month in the U.S. District Court for the Northern District of California, Wilkinson claims that the city of Richmond broke the Fair Labor Standards Act by not paying more than 100 police officers for the time it takes to “don and doff” their uniforms and clean their cars and guns. The complaint demands overtime pay for activities that are “integral and indispensable” to the primary duties of law enforcement. In an interview, Wilkinson pointed to Alvarez v. IBP, 339 F.3d 894. In that 2003 decision (.pdf), the Ninth Circuit U.S. Court of Appeals applied the “integral and indispensable” standard, awarding employees at a Washington state meatpacking plant compensation for the time they spent putting on certain specialized gear. Though Alvarez focused on the meat processing business � not law enforcement � Wilkinson noted that the Ninth Circuit made specific reference to a bulletproof vest, one example of specialized gear that could be worn in the workplace. “Why they reached for ballistic vests, I don’t know. But without question, it goes to law enforcement,” Wilkinson said. Shortly after the Supreme Court affirmed Alvarez, Wilkinson’s firm began contacting various public agencies about the ruling’s implications for their employees. She said the responses from government officials were all over the map. The city of Berkeley, for example, had already been compensating officers for tasks carried out when they were technically off the clock. The California Highway Patrol had not. So the highway patrolmen’s union negotiated a 3.5 percent pay raise for similar duties, she said. Then, five months ago, Wilkinson filed the first of 10 suits against public agencies that her firm says dug in their heels and refused to give extra pay to the cops. By a rough estimate, Wilkinson said she now represents some 2,000 officers in these cases, including about 700 in Oakland and 125 in Richmond. “In some of the jurisdictions, Oakland and Richmond for example, we have 100 percent participation. In the vast majority of [other police] organizations, we have 90 to 95 percent of members who qualify,” she said. Renne Sloan Holtzman Sakai partner Christine Maloney is one of several attorneys who are separately defending police agencies against the so-called “donning and doffing” claims. As outside counsel for the city of Richmond, she challenged the original complaint as too vague. U.S. District Judge Charles Breyer agreed, but allowed the plaintiff’s side to amend.
‘You’re talking about a half an hour of overtime per shift for each officer.’

Alison Berry Wilkinson Rains, Lucia & Wilkinson

Maloney claims there is language in the Alvarez ruling that distinguishes between meatpackers and police officers. She also said there are obvious factual differences. “I don’t think they’re at all analogous,” she said. “The majority of [officers] get dressed at home, put on a jacket, get in the car and go to work.” What’s more, Maloney said, there are examples in case law that suggest employees cannot make an FLSA claim unless they are required to suit up on their own free time. She pointed to the Ninth Circuit opinion in Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, as one example, where the court approved extra pay for computer-chip makers who were required to put on airtight gowns at work to preserve their super-sanitary workspace. Plaintiff lawyer Wilkinson said that if the police overtime suits succeed, potential damages could run about $5,000 per officer per year, though the payout would likely vary from city to city. It’s unclear if the statute of limitations would cover two or three years, she said. “You’re talking about a half an hour of overtime per shift for each officer,” Wilkinson said. Anticipating a trial demonstration of policemen slowly getting dressed, Maloney sounded eager to disprove the claim that it would take this long. “I envision an O.J. glove demonstration,” she said, referencing the famous scene in the O.J. Simpson murder trial where Simpson appeared to struggle while slipping on the glove prosecutors used to try to tie him to the murder scene. Other defense lawyers are skeptical of the half-hour estimate as well. “All police managers not involved in this lawsuit will tell you that it takes no more than two or three minutes to put this stuff on,” said Kathy Mount, a partner at Meyers, Nave, Riback, Silver & Wilson who is defending the cities of San Leandro and Union City. Some lawyers note that plaintiffs outside California have already used similar claims under the FLSA to obtain settlements. Hawaii policemen and firefighters represented by the Pacific Northwest firm Aitchison & Vick settled three cases for a combined $3.8 million about two years ago, and last year the firm reached a separate deal with the city and county of Honolulu, according to a Web site devoted to that litigation. (Citing a confidentiality agreement, name partner Will Aitchison would not disclose the amount of the Honolulu settlement.) Maloney said that if Wilkinson’s suits follow the path that Aitchison’s took, as she expects, the California litigation will probably expand beyond the issue of getting dressed. Ultimately, she said, Aitchison’s suits against Hawaiian police agencies targeted “every conceivable FLSA violation.” One claim in the Hawaii litigation, for example, challenged a requirement that workers take unpaid anger management sessions. “To call these ‘donning and doffing’ cases is, I think, a misnomer. To me, these cases are really about a fishing expedition to gather any potential violations they can find and make a class action out of it,” Maloney said. Aitchison said it’s common for plaintiffs to add multiple FLSA claims as a suit develops. “It’s very rare to find an employer who’s violating the FLSA in only one way,” he said. Until now, lawyers say few California employers have seen “donning and doffing” claims in an overtime suit. And predictably, defense lawyers say it’s a stretch to think they can be proven in court. “There is nothing worse than having to put on pantyhose after you come out of the gym hot and sweaty,” said Mount. “Nobody pays me for that.” Due to a reporting error, this article originally stated that Rains, Lucia & Wilkinson partner Alison Berry Wilkinson said she helped a highway patrolmen’s union negotiate a pay raise. In fact, Wilkinson had pointed to the raise simply as an example of one public agency’s response after the U.S. Supreme Court affirmed Alvarez v. IBP, 339 F.3d 894. She said Thursday that the California Association of Highway Patrolmen assigns some disciplinary and criminal cases to her firm, but handles union negotiations with in-house counsel. We regret the error.

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