Yes to Getting Paid for Getting Dressed? Doesn’t Meet the Test, Says 11th Circuit

by Bradley Arant Boult Cummings LLP
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When do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation. As we have written about before, the primary legislation dealing with dressing for and driving to and from work is the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996. That act states that an employer is not on the hook to pay its employees for time travelling to and from work (a regular commute) or for activities that are “preliminary to or postliminary to” the “principal activity” of the job. The U.S. Supreme Court established a test that preliminary or postliminary work could only be compensable if it was an “integral and indispensable part of the principal activities.” Easy, right?

The Facts

Mr. Llorca and his cohorts were deputy sheriffs in Collier County, Florida, and were required to show up for work wearing their uniforms and certain protective gear. They were allowed to put on this equipment and clothing at home—and they did that. The deputies also commuted to and from work in marked patrol cars. During that commute, they were required to have their radios on and to respond to any emergencies if they heard them. The county did not pay the deputies for the time spent donning the protective equipment and uniform or for any time just riding to and from work—although they were paid if they had to respond to an emergency. Plaintiffs filed suit under the FLSA for that uncompensated time. The lower court dismissed their case, and they appealed.

Where and How You Get Dressed May Matter

The Eleventh Circuit opinion addressed the donning protective equipment and commuting claims separately. On the dressing claim, the court looked at whether putting on the protective equipment was both integral and indispensable to the deputies’ primary job of law enforcement. The opinion notes that this inquiry is “fact-intensive and not amenable to bright-line rules.” The court found that donning and doffing the uniform and protective equipment was an entirely separate activity from the deputies’ principal law enforcement duties—enforcing traffic laws, responding to emergencies and engaging in crime protection—so not compensable. The court also relied on DOL regulations that held that changing clothes normally is among the preliminary and postliminary activities that are non-compensable.

The court also found it significant that the deputies were allowed to dress at home. The DOL has found that changing clothes at home is not compensable and the court compared the situation to a chemical plant employee who has  to don specific chemical exposure suits while at the plant. That type of changing activity would be considered both integral and indispensable to the job and therefore recoverable. In this case, the Eleventh Circuit denied the wage claim.

Riding to and from Work

With regard to the commuting time claim, the court stated that this type of travel is exactly what the Portal-to-Portal Act attempted to exempt from the wage requirements of the FLSA—even if you are in a company vehicle. The fact that the officers might also have to be responsive to possible emergencies did not trouble the Eleventh Circuit in finding that it was not compensable time. Again, a DOL regulation also provided the court with support by holding that a police officer who is off duty, but has to have the radio on for emergency calls, is not working during the travel time. Other circuits had agreed on this point and the court noted those cases in denying the claim.

Is Dressing and Driving Always Non-Compensable?

As the court explicitly stated, these types of claims are decided on a case-by-case basis and are very fact driven. However, there are some good tips we can take from this case.

  • If an employee is able to dress at home, that is most likely not going to be a compensable activity. However, if there are pre-or post-shift activities that have to occur on site–specific location-based protective equipment, showering due to workplace exposures, etc.–that might be compensable.
  • Just because an employee drives a company vehicle doesn’t make the time compensable. But if you require someone to check the mail on the way into work or deliver a bank deposit on the way home that may turn part of the ride into a compensable event.

Again, the best bet is to have discussions with your employees about their work requirements and set expectations for how you plan to pay them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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