Urban park rangers may seek pay for time spent donning and doffing uniforms

By Ronald Miller, J.D.

On remand from the Second Circuit, the claims of associate urban park rangers (AUPRs) for unpaid wages for time spent donning and doffing uniforms and equipment survived New York City’s motion for partial summary judgment. Noting that the issue of whether to compensate the AUPRs for donning and doffing had not been “‘threshed out’” in collective bargaining, a federal district court in New York declined to follow the Third Circuit’s 2001 ruling in Turner v. City of Philadelphia, which held that a “custom or practice” can arise through acquiescence. The city had improperly regarded the AUPRs as FLSA-exempt until 2013 (at which time it reclassified them); it could not claim a custom or practice was reached regarding application of the FLSA while denying that the statute applied to them, the court reasoned (Perez v. City of New York, September 27, 2017, Engelmayer, P.).

Urban park rangers. The AUPRs were employed by New York City’s Parks and Recreation Department to perform various public safety duties. They brought a number of FLSA claims, including claims that the city: (1) failed to compensate them at the overtime rate, or with 1 1/2 hours for compensatory time; (2) failed to compensate them for donning and doffing activities; (3) failed to compensate them for work performed during unpaid meal breaks; (4) failed to pay overtime in cash for those rangers who had accumulated more than 480 hours of compensatory time; and (5) failed to pay minimum wage. Additionally, the AUPRs alleged that the employer’s violations were willful.

Donning and doffing. The AUPRs were required to wear a uniform while performing their responsibilities. The uniform and equipment included an insignia and patches, bulletproof vest, a hip pouch, a utility belt, handcuffs, mace, flashlight, baton, and radio, among other items. The precise amount of time it takes a ranger to don and doff his uniform and equipment was in dispute. However, the rangers estimated it took from five to 30 minutes to change clothes.

They were covered by a collective bargaining agreement between the city and a union. The CBAs were silent regarding whether donning and doffing activities were compensable, and this topic never came up during negotiations. The AUPRs never received any pay for time spent donning and doffing. Moreover, no AUPR has ever raised the topic of receiving compensation for donning and doffing time with the union.

Remand. On January 15, 2015, the court granted the city’s motion for summary judgment on the AUPRs’ donning and doffing claims on the ground that their donning and doffing activities were not “integral” to the core purpose of their employment. However, on August 2, 2016, the Second Circuit remanded the case. It found that a reasonable factfinder could find that the donning and doffing of their uniforms was integral and indispensable to their principal work activities. It also directed the district court to address the city’s other arguments.

Statute of limitations. The employer argued that claims covering work more than two years before the filing of the lawsuit were barred by the FLSA’s two-year limitations period for non-willful violations. The AUPRs countered that the three-year limitations period for willful violations was available, and that the limitations period should be equitably tolled. The district court held that equitable tolling was not justified, but that disputes of fact prevented resolution of the alleged violations as willful. While there was no record evidence to establish that the city actually knew that its compensation of the AUPRs violated the FLSA, the evidence would permit a finding of reckless disregard of the risk that the payment arrangement violated the statute. Namely, until March 31, 2013, the city classified the AUPRs as exempt from overtime, but under applicable regulations, 29 C.F.R. § 541(b)(1), the exemption did not apply to park rangers.

Arguments on remand. Again, the city argued that the donning and doffing activities were not compensable because they were not “integral and indispensable” to the AUPRs’ principal activities. It also argued that the time spent donning and doffing the uniforms was de minimis at any rate. Finally, it contended that the time spent changing clothes reflected a “custom or practice,” under 29 U.S.C. § 203(o), in a bona fide CBA applicable to the AUPRs.

Custom or practice? There was no claim that the AUPRs’ donning and doffing time was excluded by the express terms of a CBA. All relevant agreements were silent on that point. Accordingly, the issue was whether a “custom or practice” under an agreement can be found under which time spent donning and doffing was to be excluded. At issue was whether a “custom or practice” can arise through acquiescence. No Second Circuit case is directly on point. However, the Third, Fifth, Sixth, and Eleventh Circuits have held that a custom or practice can come into existence via acquiescence.

The district court found the logic of the Third Circuit in Turner v. City of Philadelphia and the three circuits to follow it persuasive, and noted that there are no contrary precedents. In that context, the negotiating parties’ silence during successive rounds of bargaining was fairly read as acquiescence to the practice of not compensating donning and doffing. However, the employees pointed out that, unlike those cases, the issue of whether to compensate the AUPRs for donning and doffing was not “threshed out” in collective bargaining. The employer also noted that the CBAs had been in place between the parties for more than 20 years, and the issue of compensating AUPRs for donning and doffing had never been raised in collective bargaining.

“Custom or practice” didn’t factor in the FLSA. The key distinction, the court said, is that in Turner and the circuit court rulings that followed it, labor and management had negotiated a CBA on the shared premise that the FLSA applied to the employees. In contrast, the employer here had denied that the AUPRs were even covered by the statute until March 31, 2013. The court held the employer cannot claim a custom or practice was reached regarding application of the FLSA while denying that the Act applied.

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