FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED BAMONTE; JAVIER COTA;
RICARDO PERINE, and other No. 08-16206
similarly situated employees, D.C. No.
Plaintiffs-Appellants,
2:06-cv-01860-
v. NVW
CITY OF MESA, a body politic, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
June 1, 2009—Las Vegas, Nevada
Filed March 25, 2010
Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Lloyd D. George,* District Judge.
Opinion by Judge Rawlinson;
Partial Concurrence and Partial Dissent by Judge Gould
*The Honorable Lloyd D. George, U.S. District Judge for the District
of Nevada, sitting by designation.
4759
4762 BAMONTE v. CITY OF MESA
COUNSEL
William B. Aitchison (argued) and Breanne M. Sheetz, Atchi-
son & Vick, Inc., Portland, Oregon, for appellant Fred
Bamonte.
J. Mark Ogden, Laurent R.G. Badoux (argued), and Michael
J. Lehet, Littler Mendelson, Phoenix, Arizona, for appellee
City of Mesa.
OPINION
RAWLINSON, Circuit Judge:
Appellants, police officers employed by Appellee City of
Mesa (City), challenge the district court’s entry of summary
judgment in favor of the City. The officers contended that the
City violated the Fair Labor Standards Act (FLSA) by failing
to compensate police officers for the donning and doffing of
their uniforms and accompanying gear. Because officers had
the option of donning and doffing their uniforms and gear at
home, the district court determined that these activities were
not compensable pursuant to the FLSA and the Portal-to-
Portal Act. We agree that these activities were not compensa-
ble pursuant to the FLSA, and affirm the district court’s judg-
ment.
BAMONTE v. CITY OF MESA 4763
I. BACKGROUND
The City of Mesa, like most other municipalities, requires
its police officers to wear certain uniforms and related gear,
usually including trousers, a shirt, a nametag, a clip-on or vel-
cro tie, specified footwear, a badge, a duty belt, a service
weapon, a holster, handcuffs, chemical spray, a baton, and a
portable radio. The wearing of body armor is optional,
although the officers are required to have the body armor
available.
In support of their argument that the time spent donning
and doffing the uniform and related gear was compensable,
the police officers emphasized the relationship between their
uniform and gear and the performance of their duties. Specifi-
cally, the officers relayed their belief that the uniforms and
gear contribute to their command presence, thereby promoting
officer and public safety in furtherance of law enforcement
goals.
The officers also explained that it was preferable to don
and doff their uniforms and gear at the police station. The
explanation included the following considerations: (1) the risk
of loss or theft of uniforms and gear at home; (2) potential
access to the gear by family members or guests; (3) distrac-
tions at home that might interfere with the donning process;
(4) safety concerns with performing firearm checks at home;
(5) discomfort associated with wearing the gear while com-
muting; (6) the increased risk of being identified as a police
officer while off-duty; and (7) potential exposure of family
members to contaminants and bodily fluids.
The City was not oblivious to the concerns expressed by
the officers. Each officer is provided a locker at the station,
and facilities are available for the officers to don and doff
their uniforms and related gear. In sum, officers have the
option to don and doff at home or at work. No requirement
is imposed on officers by the City, with the exception of
4764 BAMONTE v. CITY OF MESA
motorcycle officers, who are required to don and doff their
uniforms and gear at home, because their shifts begin when
they leave their residences.
On these facts, the district court granted the City’s motion
for summary judgment, concluding that, because officers had
the option and ability to don and doff their uniforms and gear
at home, the specific activity of donning and doffing uniforms
and gear at the workplace was not compensable. The officers
filed a timely notice of appeal.
II. STANDARDS OF REVIEW
“We review de novo the district court’s order granting sum-
mary judgment.” San Diego Police Officers’ Ass’n v. San
Diego City Employees’ Retirement Sys., 568 F.3d 725, 733
(9th Cir. 2009) (citation omitted). “In doing so we are gov-
erned by the same principles as the district court: whether,
with the evidence viewed in the light most favorable to the
non-moving party, there are no genuine issues of material
fact, so that the moving party is entitled to a judgment as a
matter of law.” Id. (citation omitted).
“Interpretations of the FLSA and its regulations are ques-
tions of law, and appellate courts review district court inter-
pretations de novo.” Gieg v. DDR, Inc., 407 F.3d 1038, 1044-
45 (9th Cir. 2005) (citation omitted).
III. DISCUSSION
[1] “It is axiomatic, under the FLSA, that employers must
pay employees for all hours worked.” Alvarez v. IBP, Inc.,
339 F.3d 894, 902 (9th Cir. 2003), aff’d on other grounds sub
nom. IBP v. Alvarez, 546 U.S. 21 (2005) (citations and inter-
nal quotation marks omitted). “Work, the Supreme Court has
long noted, is physical or mental exertion (whether burden-
some or not) controlled or required by the employer and pur-
sued necessarily and primarily for the benefit of the
BAMONTE v. CITY OF MESA 4765
employer.” Id. (citation and internal quotation marks omitted)
(emphasis added). However, “[t]hat such activity is work as
a threshold matter does not mean without more that the activ-
ity is necessarily compensable. The Portal-to-Portal Act of
1947 relieves an employer of responsibility for compensating
employees for activities which are preliminary or postlimi-
nary to the principal activity or activities of a given job.” Id.
(citation, alteration, and internal quotation marks omitted)
(emphasis added).
The issue of compensation for donning and doffing cloth-
ing and gear is not new. In Steiner v. Mitchell, 350 U.S. 247
(1956), the Supreme Court considered
whether workers in a battery plant must be paid as
a part of their principal activities for the time inci-
dent to changing clothes at the beginning of the shift
and showering at the end, where they must make
extensive use of dangerously caustic and toxic mate-
rials, and are compelled by circumstances, including
vital considerations of health had [sic] hygiene, to
change clothes and to shower in facilities which state
law requires their employer to provide, or whether
these activities are preliminary or postliminary
within the meaning of the Portal-to-Portal Act and,
therefore, not to be included in measuring the work
time for which compensation is required under the
Fair Labor Standards Act.
Id. at 248 (internal quotation marks omitted). The case was
decided against the backdrop of a manufacturing process
where employees faced constant exposure to health-
threatening, if not life-threatening, lead poisoning. See id. at
249-50. “[I]ndustrial and medical experts” agreed that “[s]afe
operation . . . require[d] the removal of clothing and shower-
ing at the end of the work period.” The required showering
had “become a recognized part of industrial hygiene programs
in the industry, and the state law . . . require[d] facilities for
4766 BAMONTE v. CITY OF MESA
this purpose . . .” Id. at 250 (citation omitted). The employer’s
insurer “would not accept the insurance risk if [the employ-
ers] refused to have showering and clothes-changing facilities
for their employees.” Id. at 251.
Recognizing that changing clothes and showering “fulfilled
mutual obligations” between the employer and employee, the
Supreme Court agreed with the trial court that these activities
“constitute[d] time worked within the meaning of the Fair
Labor Standards Act.” Id. at 253 (footnote reference and
internal quotation marks omitted).1
[2] The Supreme Court explicitly articulated that “activi-
ties performed either before or after the regular work shift, on
or off the production line, are compensable under the portal-
1
With due respect to our colleague in dissent, we suggest that our hold-
ing no more announces a bright-line location rule, see Dissenting Opinion,
p. 4786, than did the courts in Steiner, Alvarez, and Ballaris [v. Wacker
Silitronic Corp., 370 F.3d 901 (9th Cir. 2004)]. Indeed, we specifically
discuss the context of the donning and doffing of police uniforms by the
Mesa police officers, including the facts that no law, rule or regulation
required on-premises donning and doffing; and that no evidence was pre-
sented of benefit to the employer. See infra p. 4772. We refer to the “dis-
parity in the circumstances” between this case and Steiner, Alvarez, and
Ballaris, without limiting the reference solely to location. See infra p.
4774.
Ironically, our colleague in dissent proposes his own bright-line rule.
According to the dissent and contrary to our holding in Alvarez, employ-
ees should be compensated for off-premises donning and doffing of “pro-
tective gear” if the gear is “indispensable” and “prevents unnecessary
workplace injury.” Dissenting Opinion, pp. 4795-96. Under this bright-
line rule, donning and doffing of protective gear for any profession would
be compensable. See, e.g., Haight v. Wackenhut Corp., No. 03 Civ. 9870
(SCR), ___ F. Supp. 2d ___, 2010 WL 769539, at *1 (S.D.N.Y. Mar. 2,
2010) (noting security officers’ compensation claim for the donning and
doffing of “protective equipment, including steel-toed shoes, hard[hat]
helmet, safety glasses, [and] gun holster . . .). This expansive reading of
the Portal-to-Portal Act flies in the face of expressed Congressional intent
to limit rather than expand employer liability for wage payments. See 29
U.S.C. § 251(a).
BAMONTE v. CITY OF MESA 4767
to-portal provisions of the Fair Labor Standards Act if those
activities are an integral and indispensable part of the princi-
pal activities . . .” Id. at 256. The Supreme Court concluded
that “it would be difficult to conjure up an instance where
changing clothes and showering are more clearly an integral
and indispensable part of the principal activity of the employ-
ment than in the case of these employees.” Id.2
2
Our colleague in dissent mischaracterizes our holding as a “new rule.”
See Dissenting Opinion, p. 4788 n.1. In fact, our holding simply applies
precedent as established in Steiner, Alvarez, and Ballaris. See, e.g., Alva-
rez, 339 F.3d at 903 (observing that “the donning and doffing of this gear
on the . . . plant’s premises is required by law, by rules of [the employer],
and by the nature of the work . . .) (citation, alterations and internal quota-
tion marks omitted) (emphasis added). Our colleague also laments that
“any police department that mandates that its officers don and doff their
uniforms and gear at the precinct must pay for that time, while those
departments that make the donning and doffing location optional face no
such requirement.” Dissenting Opinion, p. 4788 n.1. Contrary to the dis-
sent’s perception, there is nothing “strange” about this eventuality. Id. As
discussed above, the trilogy of definitive cases on this point, expressly
consider this very factor in determining whether donning and doffing are
compensable. See Steiner, 350 U.S. at 249 (noting that “removal of cloth-
ing and showering” was required) (citation omitted); see also Alvarez, 339
F.3d at 902 (explaining that the “donning and doffing rules were mandato-
ry”) (internal quotation marks omitted); Ballaris, 370 F.3d at 911 (recog-
nizing that “as in Alvarez, [the employer] required [the employees] to
change into and out of their uniforms at the plant . . .”) (citations, footnote
reference and internal quotation marks omitted). In addition, the employer
in this very case expressly opted to require motorcycle officers to don and
doff their uniforms and gear at home.
The dissent also cites Steiner v. Mitchell, 350 U.S. 247 (1956) in an
effort to minimize the importance of the fact that all of the precedential
cases involve required on-premises donning and doffing. Although our
colleague in dissent speculates that “it seems unlikely that the Court would
have concluded that [knife] sharpening was not compensable if the knife-
men had enjoyed the option to do this task either at home or at the plant,”
Dissenting Opinion, p. 4788 n.1, the fact remains that this case and the
other precedential cases all involved on-premises donning and doffing. No
precedential case adopts the dissent’s preferred holding. Although the dis-
sent accuses the majority of “parting ways with Steiner, Alvarez, and Bal-
laris,” Dissenting Opinion, p. 4790, it is actually the dissent that seeks to
squeeze the nonanalogous facts of this case into the holdings of Steiner,
Alvarez, and Ballaris, all of which involved required on-premises donning
and doffing.
4768 BAMONTE v. CITY OF MESA
As we noted in Alvarez, 339 F.3d at 902, the Portal-to-
Portal Act provides that:
[N]o employer shall be subject to any liability or
punishment under the [FLSA] . . . on account of the
failure of such employer to pay an employee mini-
mum wages, or to pay an employee overtime com-
pensation, for or on account of any of the following
activities of such employee engaged in on or after
May 14, 1947—
(1) walking, riding, or traveling to and from the
actual place of performance of the principal activity
or activities which such employee is employed to
perform, and
(2) activities which are preliminary to or postlimi-
nary to said principal activity or activities,
which occur either prior to the time on any particular
workday at which such employee commences, or
subsequent to the time on any particular workday at
which he ceases, such principal activity or activities
...
29 U.S.C. § 254(a) (1996).
The Department of Labor (DOL) has promulgated general
policy statements regarding the Portal-to-Portal Act’s effect
on the determination of compensable activities. These policy
statements are not entitled to deference, but are “entitled to
respect . . . to the extent that [they] have the power to per-
suade.” Christensen v. Harris County, 529 U.S. 576, 587
(2000) (citations and internal quotation marks omitted).
In 29 C.F.R. § 790.8, the DOL declared that principal activ-
ities “include[ ] all activities which are an integral part of a
principal activity.” 29 C.F.R. § 790.8(b) (footnote reference
BAMONTE v. CITY OF MESA 4769
omitted). Section 790.8 also provides the following example
of integral activities:
Among the activities included as an integral part of
a principal activity are those closely related activities
which are indispensable to its performance. If an
employee in a chemical plant, for example, cannot
perform his principal activities without putting on
certain clothes, changing clothes on the employer’s
premises at the beginning and end of the workday
would be an integral part of the employee’s principal
activity. On the other hand, if changing clothes is
merely a convenience to the employee and not
directly related to his principal activities, it would be
considered as a preliminary or postliminary activity
rather than a principal part of the activity. However,
activities such as checking in and out and waiting in
line to do so would not ordinarily be regarded as
integral parts of the principal activity or activities.
29 C.F.R. § 790.8 (c) (footnote references and internal quota-
tion marks omitted) (emphasis added). The DOL explained
that “[s]uch a [compensable] situation may exist where the
changing of clothes on the employer’s premises is required by
law, by rules of the employer, or by the nature of the work.”
Id. n.65.
In Alvarez, we applied Steiner and the Portal-to-Portal Act
in the specific context of considering whether a meat process-
ing plant must “compensate its employees for the time it takes
to change into required specialized protective clothing and
safety gear.” 339 F.3d at 897. Prior to their shifts, the employ-
ees were required to “gather their assigned equipment, don
that equipment in one of the . . . plant’s four locker rooms,
and prepare work-related tools before venturing to the slaugh-
ter or processing floors.” Id. at 898. The employees’ time was
“strictly regulated and monitored.” Id. at 899. For example,
“[w]hen departing the processing and slaughter floors-
4770 BAMONTE v. CITY OF MESA
whether to go to the cafeteria or to the restroom-employees
[were] permitted to leave only hats, hairnets, goggles, ear-
plugs, and boots in place; outer garments, protective gear,
gloves, scabbards, and chains [had to] be removed . . .” Id.
(footnote reference omitted). Applying 29 C.F.R. § 790.8(c)
n.65, we opined that “because the donning and doffing of this
gear on the . . . plant’s premises is required by law, by rules
of IBP, and by the nature of the work, this donning and doff-
ing is necessary to the principal work performed . . .” Id. at
903 (citation, alterations, and internal quotation marks omit-
ted) (emphasis added).
Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903 (9th
Cir. 2004), addressed whether the donning and doffing of uni-
forms at a silicon wafer manufacturing plant were compensa-
ble. In Ballaris, we were faithful to our precedent, observing
that:
Here, as in Alvarez, [the employer] required [the
employees] to change into and out of their uniforms
at the plant, and only at the plant, in the normal
course of the employees’ jobs. [The employer]
issued instructions to [its] employees that they must
wear the plant uniforms daily and strictly enforced
this requirement. Employees were prohibited from
leaving the plant in their uniforms and were moni-
tored by security cameras and guards to ensure com-
pliance. These facts weigh heavily in favor of a
determination that the activity is not excluded by the
Portal-to-Portal Act.
Id. at 911 (citations, footnote reference, and internal quotation
marks omitted) (emphasis added). We held that, “[a]s in Alva-
rez, because the plant uniforms were required by the
employer, and because the wearing of those uniforms was for
the employer’s benefit, the time spent putting them on and
taking them off must be included as compensable time.” Id.
(citation and internal quotation marks omitted).
BAMONTE v. CITY OF MESA 4771
Because Ballaris parroted our holding in Alvarez, we look
to Alvarez to glean the principles we should apply while
working toward resolution of this case. In Alvarez, we
focused on the particular “circumstances presented by that
case. . . .” See Alvarez, 339 F.3d at 897, see also id. at 902
(agreeing with the district court “under the facts presented by
this case.”). Those particular circumstances included the facts
that: (1) “the meat packing industry has been one of the most
regulated businesses in the United States[,]” id. at 898; (2) all
employees were required to don “a sanitary outer garment that
[was] provided and washed each night . . .” id. n.2; (3) the
employer “restructured its shift time to include four minutes
of so-called “clothes’ time . . .” id. at 899; (4) “[o]nce a shift
[began], the . . . plant employees’ time [was] strictly regulated
and monitored, id.; (5) the employer’s “donning and doffing
rules” were mandatory, id.; and (6) the rules “fulfill[ed]
mutual obligations of employer and employee.” Id. at 901.
Applying the Portal-to-Portal Act and the holding of
Steiner to these facts, we held that the employer was required
to compensate its employees for the time spent donning and
doffing the specialized gear. See id. at 904.3
[3] We discern a three-stage inquiry utilized in resolving
the issue presented in Alvarez. The first stage addressed
whether the activity constituted “work”; the second stage
addressed whether the activity was an “integral and indispens-
able” duty; and the third stage addressed whether the activity
was de minimis. See id. at 902-03. In Alvarez, we defined
“work” as “physical or mental exertion . . . controlled or
required by the employer and pursued necessarily and primar-
3
We did not include within the umbrella of compensable activities time
spent donning and doffing “non-unique protective gear such as hardhats
and safety goggles . . .” Id. at 903. The dissent’s insistence that compensa-
tion is mandated for the donning and doffing of the “non-unique protective
gear” on the officers’ uniform belt, see Dissenting Opinion, p. 4795,
directly conflicts with this portion of our holding in Alvarez.
4772 BAMONTE v. CITY OF MESA
ily for the benefit of the employer.” Id. at 902 (citation omit-
ted) (emphasis added).4 The articulated definition of work
contains two conjunctive components — activity that is “con-
trolled or required by the employer,” id. (citation omitted)
(emphasis added), and that is “pursued necessarily and pri-
marily for the benefit of the employer.” Id. (citation omitted)
(emphasis added); see also Rodriquez v. Smith, 541 F.3d
1180, 1186 (9th Cir. 2008) (“[U]se of the conjunctive indi-
cates that all of the conditions listed must be met.”) (citation
omitted) (emphasis in the original); Marin Gen. Hosp. v.
Modesto & Empire Traction Co., 581 F.3d 941, 947 (9th Cir.
2009) (observing that both prongs must be met for a legal test
stated in the conjunctive).
[4] One could argue that under the facts of the case, the
donning and doffing of the uniforms and related gear by the
officers do not constitute work, simply because the donning
and doffing are not required by the employer to be performed
at the workplace, as was the case in Steiner, Alvarez, and Bal-
laris. Such a conclusion would foreclose the officers’ claim
under the first stage of the Alvarez analysis. However, there
is language in Alvarez that could be interpreted as supporting
a finding of compensability as a function of the employer’s
requirement that the officers wear a uniform and related pro-
tective gear. See Alvarez, 339 F.3d at 897. Giving credence to
that potential argument, as advanced by the officers in this
case, we proceed to the second stage of the Alvarez analysis
— whether the activity arguably meeting the definition of
work is contextually “integral and indispensable,” i.e. “neces-
sary to the principal work performed and done for the benefit
of the employer.” Id. at 902-03 (citations omitted) (emphasis
4
The dissent goes to great lengths to cite district court cases raising the
issue of whether the employer requires on-premises donning and doffing.
See Dissenting Opinion, pp. 4794-95. However, it is unsurprising that the
parties recognized the importance of that issue due to its prominence in the
precedential cases of Steiner, Alvarez, and Ballaris. See Alvarez, 339 F.3d
at 902 (defining “work” as “exertion . . . required by the employer . . .”)
(citation omitted) (emphasis added).
BAMONTE v. CITY OF MESA 4773
added). It is at this stage that the officers’ claims for compen-
sability fatally falters.
In Alvarez, we determined that the “donning and doffing of
job-related protective gear satisfied Steiner’s bipartite “inte-
gral and indispensable” test. Id. at 903. We relied heavily on
the fact that “the donning and doffing of this gear on the . . .
plant’s premises is required by law, by rules of [the
employer], and by the nature of the work.” Id. (citing 29
C.F.R. § 790.8(c) n. 65) (1999)) (alterations and internal quo-
tation marks omitted). We explicitly noted that the employer,
“by rule mandates the donning and doffing of clothes and gear
at various intervals throughout the workday, requiring
employees to wait for and to retrieve that gear in particular
areas at particular times on the . . . plant’s premises.” Id. (cita-
tions, alteration and internal quotation marks omitted). Our
conclusion was also predicated on the undisputed fact that the
“donning, doffing, washing, and retrieving of protective gear
[was], at both broad and basic levels, done for the benefit of
[the employer]. These . . . activities allow [the employer] to
satisfy its requirements under the law . . .” Id. (citations omit-
ted).
[5] The facts we consider in this case are diametrically
opposed to those that formed the contexts in Steiner, Alvarez,
and Ballaris. In Steiner, Alvarez, and Ballaris, the employer
mandated donning and doffing at the employer’s premises. In
this case, with the exception of motorcycle officers, donning
and doffing at the workplace are entirely optional. In Steiner
and Alvarez, the on-premises donning and doffing require-
ment was imposed to ensure compliance with the law. In this
case, the officers have cited no law, rule or regulation mandat-
ing on-premises donning and doffing. In Steiner and Alvarez,
on-premises donning and doffing “fulfill[ed] mutual obliga-
tions of employer and employee.” Alvarez, 339 F.3d at 901;
see also Steiner, 350 U.S. at 252. In this case, the officers
identify no obligation on either side that would be fulfilled by
on-premises donning and doffing. Finally, in Steiner, Alvarez,
4774 BAMONTE v. CITY OF MESA
and Ballaris, on-premises donning and doffing were expressly
determined to be for the benefit of the employer. In contrast,
in this case, the officers urged a conclusion of compensability
primarily for reasons that were of sole benefit to the employee
(risk of loss or theft of uniforms, potential access to gear by
family members or guests, risk of performing firearm checks
at home, discomfort while commuting, risk of being identified
as officer while off-duty, and risk of exposing family mem-
bers to contaminants and bodily fluids from encounters in the
line of duty). Because of the disparity in the circumstances,
we are not convinced that the holdings in Steiner, Alvarez,
and Ballaris support a similar conclusion in this case that
donning and doffing of uniforms and related gear on the
employer’s premises are compensable under the FLSA as “in-
tegral and indispensable” work activities. Alvarez, 339 F.3d at
903.
The dissent references the “context-specific” inquiry
described in Alvarez to insert a factor that was never men-
tioned in Steiner, Alvarez, or Ballaris — “the practical diffi-
culty” of donning or doffing off-site. Dissenting Opinion, p.
4789 & n.2. At the same time, the dissent ignores the other
factors articulated in those cases, i.e., whether on-premises
doffing “fulfill[ed] mutual obligations of employer and
employee[,]” Alvarez, 339 F.3d at 901; see also Steiner, 350
U.S. at 252; and whether on-premises donning and doffing
primarily benefitted the employer. See Alvarez, 339 F.3d at
902-03.
In addition, the dissent’s approach completely elides the
fact that in Alvarez, we concluded that the time spent donning
and doffing “non-unique protective gear such as hardhats and
safety goggles . . . is not compensable.” Id. at 903. Moreover,
the dissent does not explain how its analysis applies to under-
cover officers, who do not wear the assigned protective gear,
for obvious reasons. Finally, the dissent includes a litany
describing the use and importance of the protective gear. See
Dissenting Opinion, pp. 4795-96. However, there is not a
BAMONTE v. CITY OF MESA 4775
mention of why the gear is less effective if donned at the offi-
cer’s home.5
Importantly, the dissent’s argument bears no resemblance
to the case brought by the officers. The officers urged that
they be compensated because of their preference to don and
doff at the workplace, not due to any of the factors set out in
Steiner and Alvarez. Unlike the argument manufactured by
the dissent, see Dissenting Opinion, p. 4796, the officers
made absolutely no claim that donning and doffing the protec-
tive gear were done for the benefit of the employer. The dis-
sent’s contention rewrites the record of this case, and distorts
the holding of Alvarez. See Dissenting Opinion, p. 4796.
Indeed, the dissent cites only the portion of Alvarez observing
that prevention of unnecessary workplace injury inures to the
benefit of the employer. See Alvarez, 339 F.3d at 903. The
dissent makes no mention of the other factors that contributed
to the conclusion that on-premises donning and doffing bene-
fitted the employer — satisfaction of the employer’s obliga-
tions under the law and prevention of workplace
contamination. See id. Aside from deviating from the officers’
arguments, the dissent even ventures to speculate that police
may be deterred from using protective gear, and “there may
be increased injuries or even lives lost.” Dissenting Opinion,
p. 4797 n.5, a hyperbolic spectre never even hinted at by the
officers with respect to the factors that determine compensa-
bility. In fact, it is insulting to even suggest that professional
law enforcement officers would compromise their safety or
the safety of the public for the sake of a few dollars. As far
as the record reflects, donning and doffing of uniforms and
protective gear in the City of Mesa have gone uncompensated
to this day. Yet the record does not reflect that a single officer
5
The dissent makes this very point with regard to the uniforms. See Dis-
senting Opinion, p. 4794 (noting the “ability of undercover officers, who
wear no uniform, to effectively police”). The same is true of the protective
gear.
4776 BAMONTE v. CITY OF MESA
elected to forego donning protective gear due to a lack of com-
pensation.6
Subsequent to our decisions in Alvarez and Ballaris, the
DOL considered the compensability of donning and doffing
of clothing and gear at home. In a May 31, 2006, memoran-
dum, the DOL advised that:
donning and doffing of required gear is within the
continuous workday only when the employer or the
nature of the job mandates that it take place on the
employer’s premises. It is our longstanding position
that if employees have the option and ability to
change into the required gear at home, changing into
that gear is not a principal activity, even when it
takes place at the plant.
Wage & Hour Adv. Mem. No. 2006-2, at 3 (May 31, 2006)
(2006 memorandum) (citation omitted).7
We have not previously addressed whether the donning and
doffing of police uniforms and gear at home are compensable
under the FLSA, or ruled on the impact of the 2006 DOL
6
Our recent decision in Rutti v. Lojack Corp., Inc., No. 07-56599, ___
F.3d ___, 2010 WL 699946 (9th Cir. Mar. 2, 2010), does not persuade us
that compensation is appropriate in the context of this case. In Rutti, we
determined that the employee was entitled to compensation for tasks per-
formed at-home pursuant to the employer’s requirement. See id. at *9. The
facts we now consider are not analogous, as it is undisputed that, with the
exception of motorcycle officers, the officers are free to don and doff at
home or at work. No requirement either way is imposed by the City.
7
The officers maintain that the DOL memorandum is limited to an anal-
ysis of the continuous workday rule. Under the continuous workday rule,
“the workday is generally defined as the period between the commence-
ment and completion on the same workday of an employee’s principal
activity or activities.” IBP, 546 U.S. at 29 (citation omitted). However, the
DOL expressly considered in the memorandum the compensability of
donning and doffing when employees have the option and ability to con-
duct these activities at home.
BAMONTE v. CITY OF MESA 4777
memorandum. Finding the DOL memorandum persuasive,
several district courts have held that such activities are not
compensable. In Martin v. City of Richmond, 504 F. Supp. 2d
766, 773-74 (N.D.Cal. 2007), the district court determined
that the police uniform was not indispensable to the officers’
principal activities, but that the officers’ equipment was indis-
pensable to their principal activities. Nonetheless, the district
court held that “the donning and doffing of protective gear at
home typically renders that activity non-compensable under
the FLSA.” Id. at 775; see also Dager v. City of Phoenix,
2009 WL 531864, at *11 (D. Ariz. Jan. 21, 2009) (same);
Abbe v. City of San Diego, 2007 WL 4146696, at *7 (S.D.
Cal. Nov. 9, 2007) (same as to uniforms); but see Lemmon v.
City of San Leandro, 538 F. Supp. 2d 1200, 1207-09
(N.D.Cal. 2007) (determining that the donning and doffing of
uniforms and gear were compensable activities).8
We are persuaded that the district court’s analysis in Abbe
faithfully applied the precepts set forth in Steiner and Alvarez.
The district court stated:
8
Other courts have concluded that the donning of uniforms is compensa-
ble when the employees do not have the option to don them at home. See,
e.g., Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d 499, 519 (D. Md.
2009) (holding that the donning and doffing of gear was compensable,
despite a take-home option, because the employees were “required by law,
policy, and the nature of the work to don and doff their [gear] at work.”);
Lee v. Am-Pro Protective Agency, Inc., 860 F. Supp. 325, 326 (E.D. Va.
1994) (finding donning of uniform compensable where “Plaintiffs seek
compensation for the time that it takes them to change into and out of their
guard uniforms, on site, because they are not allowed to change at home
and arrive at work already in uniform.”); cf. Bagrowski v. Maryland Port
Auth., 845 F. Supp. 1116, 1121 n.6 (D. Md. 1994) (“The only substantial
pre-roll call activity in which the non-supervisory plaintiffs allegedly
engaged was putting on their uniforms. Many officers came to work in
their uniforms and nothing prevented plaintiffs from doing so. Clearly,
dressing at work was not an integral part of their activity as were the
clothes-changing and showering habits of the workers routinely exposed
to hazardous chemicals at a chemical manufacturing plant who were the
plaintiffs in [Steiner].”) (internal quotation marks omitted).
4778 BAMONTE v. CITY OF MESA
It is important to note . . . that the relevant inquiry
is not whether the uniform itself or the safety gear
itself is indispensable to the job — they most cer-
tainly are — but rather, the relevant inquiry is
whether the nature of the work requires the donning
and doffing process to be done on the employer’s
premises . . .
Abbe, 2007 WL 4146696, at *7 (emphases in the original).
We are similarly persuaded that the 2006 DOL memoran-
dum regarding the compensability of the donning and doffing
of uniform and gear at home is consistent with our analysis
in Alvarez, and should be considered in our resolution of this
case. “An agency’s rules are entitled to two possible levels of
deference. Generally, Chevron9 deference is reserved for leg-
islative rules that an agency issues within the ambit of the
authority entrusted to it by Congress.” Tablada v. Thomas,
533 F.3d 800, 806 (9th Cir. 2008) (citation omitted). “Such
rules are characteristically promulgated only after notice and
comment.” Id. (citation omitted). “If, on the other hand, the
agency rule or decision is not within an area of express dele-
gation of authority or does not purport to have the force of
law, it is entitled to a measure of deference proportional to its
power to persuade, in accordance with the principles set forth
in Skidmore v. Swift & Co., 323 U.S. 134, (1944).” Id. (cita-
tion omitted). “Under this level of review, we look to the pro-
cess the agency used to arrive at its decision.” Id. (citations
omitted). “Among the factors we consider are the interpreta-
tion’s thoroughness, rational validity, consistency with prior
and subsequent pronouncements, the logic and expertness of
an agency decision, the care used in reaching the decision, as
well as the formality of the process used.” Id. (citation, alter-
ations, and internal quotation marks omitted).10
9
Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837
(1984).
10
The dissent criticizes the majority for giving Skidmore deference to
the DOL’s interpretations of the Portal-to-Portal Act, see Dissenting Opin-
ion, p. 4790, without in any way articulating why the DOL’s interpretive
documents lack the power to persuade.
BAMONTE v. CITY OF MESA 4779
[7] We conclude that the 2006 memorandum merits Skid-
more deference,11 as it provides a rational and consistent
approach regarding the compensability of the donning and
doffing of uniforms and related gear. In particular, the 2006
memorandum’s focus on the location of the donning and doff-
ing comports with the principles established in Steiner, Alva-
rez, and Ballaris. In each of these cases, the employees were
required by their employers, by law, by rules, or by the nature
of the work to don and doff their uniforms and gear at the
employer’s premises. See Steiner, 350 U.S. at 256; Alvarez,
339 F.3d at 903; Ballaris, 370 F.3d at 911. The 2006 memo-
randum consistently opines that employees are not entitled to
compensation when they are not required by the employer to
don and doff uniforms and gear at the employer’s premises,
and have the option and ability to don and doff at home. The
2006 memorandum, therefore, provides additional support for
our determination of the non-compensability of at-home
donning and doffing, an issue not addressed in Steiner, Alva-
rez, and Ballaris.
The DOL memorandum is also true to its prior interpreta-
tions of the FLSA and Portal-to-Portal Act. For example, 29
C.F.R. § 785.24(c) provides:
Among the activities included as an integral part of
a principal activity are those closely related activities
which are indispensable to its performance. If an
employee in a chemical plant, for example, cannot
perform his principal activities without putting on
certain clothes, changing clothes on the employer’s
premises at the beginning and end of the workday
would be an integral part of the employee’s principal
activity . . .
11
The 2006 memorandum is not entitled to Chevron deference because
“[i]nterpretations such as those in opinion letters—like interpretations con-
tained in policy statements, agency manuals, and enforcement guidelines,
all of which lack the force of law—do not warrant Chevron-style defer-
ence.” Christensen, 529 U.S. at 587 (citations omitted).
4780 BAMONTE v. CITY OF MESA
29 C.F.R. § 785.24(c) (emphasis added); see also 29 C.F.R.
§ 790.8(c) (providing the same example).
The DOL has regularly interpreted these regulations to
require compensation when the donning and doffing of cloth-
ing is required at the employer’s premises. In a September 11,
1968, opinion letter, the DOL advised that “if an employee
cannot perform his principal activities without putting on cer-
tain clothes, changing clothes on the employer’s premises at
the beginning and end of the workday would be an integral
part of the employee’s principal activity and compensable
. . .” Dep’t of Labor, Opinion Letter No. 908 (Sept. 11, 1968).
However, “employees who elect to dress at home before
going to work are not working while dressing even though the
uniform they put on at home is required to be worn in the
place of their employment during working hours.” Id.
In a January 28, 1974, opinion letter, the DOL reiterated
that “clothes changing time must be counted as hours worked
if it is required by the rules of the employer.” Dep’t of Labor,
Opinion Letter No. WH-252, p. 1, 1974 WL 38691 (January
28, 1974) (emphasis in the original). The DOL opined that
such activities were compensable where “the employer has
ruled that all employees in the stated departments must be
dressed in uniforms which they are not permitted to wear
when leaving the premises, and that under company rules the
employees must change clothes on the premises at the begin-
ning and end of their work shifts.” Id. p. 2.12
12
The officers assert that the DOL’s 2006 memorandum is inconsistent
with the DOL’s 2001 opinion letter interpreting section 3(o) of the FLSA.
In that letter, the DOL explained that “[a]n employer must compensate its
employees for any activity that is an integral and indispensable part of the
employee’s principal activities, including the putting on, taking off and
cleaning of personal protective equipment, clothing or gear that is required
by law, by rules of the employer or by the nature of the work.” Dep’t of
Labor, Opinion Letter, 2001 WL 58864 (Jan. 15, 2001). Appellants main-
tain that, because this opinion letter does not mention the location of the
donning and doffing of clothing, the DOL’s 2006 memorandum is incon-
BAMONTE v. CITY OF MESA 4781
The DOL Field Operations Handbook also instructs that
“[e]mployees who dress to go to work in the morning are not
working while dressing even though the uniforms they put on
at home are required to be used in the plant during working
hours. Similarly, any changing which takes place at home at
the end of the day would not be an integral part of the
employees’ employment and is not working time.” DOL Field
Operations Handbook, Ch. 31, § 31b13 (12/15/2000).13,14
sistent. However, the fact that the DOL did not address a location require-
ment in the 2001 opinion letter does not negate the DOL interpretation
regarding donning and doffing at home. See Dep’t of Labor, Opinion Let-
ter No. 908 (Sept. 11, 1968); see also Dep’t of Labor, Opinion Letter No.
WH-252, 1974 WL 38691 (January 28, 1974).
13
Although the prior DOL interpretations involved the changing of
clothes and did not include gear, this does not diminish the 2006 memo-
randum’s persuasive effect. In Alvarez, we applied 29 C.F.R. § 790.8(c),
which deals with the changing of clothes, to the donning and doffing of
gear. See Alvarez, 339 F.3d at 903.
14
The officers’ contention that the DOL memorandum conflicts with 29
C.F.R. § 776.6 is unpersuasive. Section 776.6 provides that “[e]xcept for
the general geographical limitations discussed in § 776.7, the Act contains
no prescription as to the place where the employee must work in order to
come within its coverage. It follows that employees otherwise coming
within the terms of the Act are entitled to its benefits whether they per-
form their work at home, in the factory, or elsewhere. The specific provi-
sions of the Act relative to regulation of homework serve to emphasize
this fact.” (footnote references omitted). The general statement that
employees may be entitled to benefits for work performed at home does
not contradict the DOL’s more specific determination that the donning and
doffing of gear at home are non-compensable as non-work preliminary or
postliminary activities.
We also decline to accept the officers’ argument premised on 29 C.F.R.
§ 553.221(b) (“Compensable hours of work generally include all of the
time during which an employee is on duty on the employer’s premises or
at a prescribed workplace, as well as all other time during which the
employee is suffered or permitted to work for the employer. Such time
includes all pre-shift and post-shift activities which are an integral part of
the employee’s principal activity or which are closely related to the perfor-
mance of the principal activity . . .”). This regulation in no way establishes
that the donning and doffing of uniforms and gear are compensable activi-
ties. Rather, the regulation merely provides that once work activities are
defined, the employee must be compensated for the performance of all
those defined work activities.
4782 BAMONTE v. CITY OF MESA
[8] The 2006 memorandum’s location consideration fur-
thers the purposes undergirding the Portal-to-Portal Act, as
reflected in the extensive findings articulated in 29 U.S.C.
§ 251:
The Congress finds that the Fair Labor Standards
Act of 1938, as amended [29 U.S.C.A. § 201 et
seq.], has been interpreted judicially in disregard of
long-established customs, practices, and contracts
between employers and employees, thereby creating
wholly unexpected liabilities, immense in amount
and retroactive in operation, upon employers with
the results that, if said Act as so interpreted or claims
arising under such interpretations were permitted to
stand, (1) the payment of such liabilities would bring
about financial ruin of many employers and seri-
ously impair the capital resources of many others,
thereby resulting in the reduction of industrial opera-
tions, halting of expansion and development, curtail-
ing employment, and the earning power of
employees; (2) the credit of many employers would
be seriously impaired; (3) there would be created
both an extended and continuous uncertainty on the
part of industry, both employer and employee, as to
the financial condition of productive establishments
and a gross inequality of competitive conditions
between employers and between industries; (4)
employees would receive windfall payments, includ-
ing liquidated damages, of sums for activities per-
formed by them without any expectation of reward
beyond that included in their agreed rates of pay; (5)
there would occur the promotion of increasing
demands for payment to employees for engaging in
activities no compensation for which had been con-
templated by either the employer or employee at the
time they were engaged in; (6) voluntary collective
bargaining would be interfered with and industrial
disputes between employees and employers and
BAMONTE v. CITY OF MESA 4783
between employees and employees would be cre-
ated; (7) the courts of the country would be burdened
with excessive and needless litigation and champer-
tous practices would be encouraged; (8) the Public
Treasury would be deprived of large sums of reve-
nues and public finances would be seriously
deranged by claims against the Public Treasury for
refunds of taxes already paid; (9) the cost to the
Government of goods and services heretofore and
hereafter purchased by its various departments and
agencies would be unreasonably increased and the
Public Treasury would be seriously affected by con-
sequent increased cost of war contracts; and (10)
serious and adverse effects upon the revenues of
Federal, State, and local governments would occur.
29 U.S.C. § 251(a).15 A location consideration also supports
Congressional goals by clarifying the circumstances under
which employees must be compensated for the donning and
doffing of uniforms and gear, thereby preventing unexpected
and substantial liability to employers. Consistent with these
principles, we conclude that donning and doffing of police
uniforms and gear are not compensable under the
contextually-specific facts of this case.16 We agree with the
15
Discussion of these findings is conspicuously absent from the dissent-
ing opinion.
16
Contrary to the officers’ assertion, the 2006 DOL memorandum does
not “open a considerable loophole in the FLSA” by treating at-home donn-
ing and doffing as non-compensable. The memorandum does not provide
that at-home work is non-compensable. Instead, it narrowly focuses on the
donning and doffing of gear where the “employees have the option and the
ability to change into the required gear at home . . .” 2006 memorandum
at 3 (emphasis added). Employees, therefore, must have the ability to don
and doff their gear at home, not just the option. Appellants’ hypothetical
regarding a detective not being compensated for making investigatory
calls and conducting case research at home is, therefore, unpersuasive,
particularly as these do not generally meet the description of preliminary
or postliminary activities. See 29 U.S.C. § 254(a) (describing preliminary
and postliminary activities as acts other than “the principal activity or
activities which such employee is employed to perform.”).
4784 BAMONTE v. CITY OF MESA
district court that it is undisputed in the record that officers
other than motorcycle officers retain the complete option and
ability to don and doff their uniforms and gear at home. There
is no rule, regulation, policy or practice of the City that limits
the officers’ option in any way. Although logical reasons exist
for the police officers not to avail themselves of the at-home
option, such as comfort, safety concerns, and exposure of
family members to certain substances, these reasons reflect
preferences rather than mandates. In sum, donning and doff-
ing of uniforms and related gear are not required by law, rule,
the employer or the nature of the police officers’ work to be
performed at the employer’s premises.
Our analysis is consistent with the reasoning employed by
the court in Haight v. Wackenhut Corp., No. 03 Civ. 9870
(SCR), ___ F. Supp. 2d ___, 2010 WL 769539 (S.D.N.Y.
Mar. 2, 2010). In Haight, security officers sought compensa-
tion for the time spent donning and doffing hardhats, safety
glasses, steel-toed boots, and gun holsters. See id. at *5.
Although an argument could certainly be made that this pro-
tective gear enabled the security officers to better perform
their assigned tasks, the district court nevertheless concluded
that the donning and doffing of the protective gear was not
integral to the principal work activities performed by the
security officers. See id. The court found “[m]ost signifi-
cant[ ]” the fact that the security officers were “not required
to change on [the] employer’s premises and have the option
of changing at home.” Id. at *6 (citation omitted).
The district court expressly relied on the Second Circuit’s
decision in Gorman v. Consolidated Edison Corp., 488 F.3d
586 (2d Cir. 2007) to conclude that the equipment at issue
was “generic protective gear” that was “non-integral and non-
compensable under [the] FLSA.” Haight, 2010 WL 769539,
at *5 (citation omitted). In turn, the Second Circuit looked to
Steiner, Mitchell, and Alvarez for guidance. See Gorman, 488
F.3d at 590-91. The Second Circuit recognized that only
activities “that are integral and indispensable to principal
BAMONTE v. CITY OF MESA 4785
activities are compensable under the FLSA . . .” Id. at 590
(citation and internal quotation marks omitted) (emphasis
added). The Second Circuit astutely recognized that there is
a difference between an indispensable activity and an integral
activity. That an activity is indispensable does not necessarily
mean that the activity is integral to the principal work per-
formed. See id. at 592-93. While expanding on the distinction,
the Second Circuit explicitly noted the narrow interpretation
“invite[d]” by Steiner. Id. at 593. The Second Circuit rea-
soned that “Steiner therefore supports the [narrow] view that
when work is done in a lethal atmosphere, the measures that
allow entry and immersion into the destructive element may
be integral to all work done there . . .” Id. The Second Circuit
contrasted the equipment at issue in Steiner with the gear
donned and doffed by the employees of a nuclear power plant,
emphasizing that although the helmet, safety glasses and
steel-toed boots might “be indispensable to plaintiffs’ princi-
pal activities[,]” they were not necessarily integral to those
principal activities. Id. at 594.
The Second Circuit observed that “[t]he donning and doff-
ing of such generic protective gear was not different in kind
from changing clothes and showering under normal condi-
tions, which, under Steiner, are not covered by the FLSA.” Id.
(citation and internal quotation marks omitted).17
To the extent Haight and Gorman imply that generic pro-
tective gear is never compensable, we do not adopt this con-
clusion. See Alvarez, 339 F.3d at 903 (observing that certain
non-unique protective gear may be integral and indispens-
able). However, as with Alvarez, Haight and Gorman exem-
plify that the compensability analysis is “context-specific.”
17
The Second Circuit also stated that “[t]he donning and doffing of
generic protective gear is not rendered integral by being required by the
employer or by government regulation.” Id. (citations omitted). We do not
adopt this premise. Rather, as recognized in Alvarez, see 339 F.3d at 903,
that is one factor to be considered in the compensability determination.
4786 BAMONTE v. CITY OF MESA
Alvarez, 339 F.3d at 902. The dissent disregards this require-
ment and automatically assumes that the donning and doffing
of protective gear are compensable. See Dissenting Opinion,
pp. 4794-96. This assumption, without regard to the options
available to the police officers, contravenes our precedent and
creates needless intercircuit tension.
IV. CONCLUSION
[9] We readily acknowledge and applaud the many law
enforcement officers throughout this Circuit who put their
lives on the line daily to ensure the continued safety of our
communities. Our ruling in no way should be interpreted as
denigrating the vital role these officers fill in the rubric of
society. Nevertheless, our analysis of the governing statutes,
as informed by the DOL interpretation, our precedent, and
other analogous cases; leads us to the conclusion that the
donning and doffing of police uniforms and related gear are
not compensable activities in this case. No requirement of
law, rule, the employer, or the nature of the work mandates
donning and doffing at the employer’s premises, and none of
the other factors articulated in Alvarez weigh in favor of a
conclusion of compensability. No material issue of fact was
raised on the record of this case that donning and doffing of
police uniforms and related gear are compensable work activi-
ties under the FLSA, as amended by the Portal-to-Portal Act.
The district court, therefore, properly granted summary judg-
ment in favor of the City.
AFFIRMED.
GOULD, Circuit Judge, concurring in the judgment in part
and dissenting in part:
I would not announce a bright-line location rule that con-
trols the compensability of preliminary and postliminary
BAMONTE v. CITY OF MESA 4787
activities under the FLSA. The location where an activity is
performed is just one of many useful tools in the fact-sensitive
compensability analysis. Location is not in and of itself the
controlling test. Because I disagree with the majority’s
approach and its holding with respect to job-related protective
gear, I concur in the judgment only with respect to the majori-
ty’s determination that the donning and doffing of police uni-
forms is non-compensable. I would hold that the donning and
doffing of protective gear is compensable, subject to a de
minimis analysis on remand. Thus I respectfully dissent in
part.
I
The majority creates a bright-line rule that donning and
doffing uniforms and protective gear is integral and indispens-
able to police work, and thus compensable under the FLSA,
only if a “requirement of law, rule, the employer, or the nature
of the work mandates donning and doffing at the employer’s
premises.” Op. at 4786. This new rule is contrary to the
Supreme Court’s context-specific approach to determining
compensability. Even absent that conflict, I doubt that the
new rule will do much to clarify the law governing when the
donning and doffing of police uniforms and gear is compensa-
ble.
A
First, “[t]he Supreme Court’s approach to this principal,
integral and indispensable duty question is context-specific.”
Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003) (inter-
nal quotation marks omitted), aff’d, 546 U.S. 21, 32 (2005)
(citing with approval our “context specific” description of the
compensability determination). Steiner and Mitchell, the two
Supreme Court cases illustrating the proper approach for
determining compensability under the Portal-to-Portal Act,
examined more than a dozen factors between the two cases in
determining compensability. In Steiner, the Court concluded
4788 BAMONTE v. CITY OF MESA
that changing clothes and showering were compensable activ-
ities performed by battery-plant employees in Steiner after
looking to industrial standards, state-law requirements,
insurance-carrier requirements, operational-efficiency consid-
erations, who provided the work clothes, the location and tim-
ing of clothes changing and showering, the absence of a
written policy governing clothes changing and showering, the
testimony of the plant foreman that an unwritten policy
required post-shift bathing, and the exception to the bathing
policy for an injured worker who did not use the common
showers. Steiner v. Mitchell, 350 U.S. 247, 250-51 & n.1
(1956). In Mitchell, the companion case to Steiner, the Court
determined that butchers’ time sharpening knives and saws
was compensable after looking at who furnished the knives
and sharpening tools, the importance of sharp knives to butch-
ering, when and where the sharpening was done, and how
many knives were sharpened per day. Mitchell v. King Pack-
ing Co., 350 U.S. 260, 261-62 (1956). Although the location
of the clothes changing and knife sharpening formed part of
the analysis in both Steiner and Mitchell, location did not
dominate or control the inquiry.1
1
In Mitchell, the meat-packing plant housed a room with an emery
wheel and grindstone where the knifemen sharpened their tools. 350 U.S.
at 262. Because of the centrality of knife sharpening to butchering, it
seems unlikely that the Court would have concluded that sharpening was
not compensable if the knifemen had enjoyed the option to do this task
either at home or at the plant. Either way, the knifemen had to sharpen
their knives and saws to properly perform their jobs, so the task would
presumably have been compensable. See id.
The facts here are analogous. Regardless of the location where donning
and doffing takes place, police officers perform the same series of steps
to ready their uniforms and gear. Under the majority’s new rule, any
police department that mandates that its officers don and doff their uni-
forms and gear at the precinct must pay for that time, while those depart-
ments that make the donning and doffing location optional face no such
requirement. Perhaps I missed something, but it seems quite strange that
the exact same activity would be only sometimes compensable under the
FLSA if we follow the majority’s rule.
BAMONTE v. CITY OF MESA 4789
The two prior Ninth Circuit FLSA cases involving clothing
and protective gear have emphasized the location where gear
was donned and doffed, but both of those cases featured gear
that was impractical or dangerous to remove from the plant.
See Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903-04
(9th Cir. 2004) (discussing the full-body “bunny suit” that
must be worn to prevent contamination from outside, ambient
air); Alvarez, 339 F.3d at 898 n.2 (listing gear designed to
repel blood and liquid associated with animal-carcass disas-
sembly that must be cleaned after each shift). No such practi-
cal difficulty exists with respect to police uniforms and
protective gear, and I would distinguish Ballaris and Alvarez
as involving practical requirements of on-site donning and
doffing that are not presented here.2
The majority conflates the requirement that a piece of
clothing or gear be donned on-site with the importance that
the piece of gear has for the job performed. See Op. at 4778
(“[T]he relevant inquiry is whether the nature of the work
requires the donning and doffing process to be done on the
employer’s premises.”) (alteration omitted) (citing Abbe v.
City of San Diego, 2007 WL 4146696, at *7 (S.D. Cal.
2007)). This error perhaps arises because the nature of a par-
ticular piece of clothing or gear simultaneously determines (1)
whether it can practically be donned and doffed off-site, and
(2) whether wearing the gear is integral and indispensable to
the work performed. Although related, the two inquiries
2
The majority is concerned that I discuss the practical difficulty of
donning and doffing off-site even though it was not explicitly addressed
in the Ballaris and Alvarez cases. Op. at 4774. The majority’s assumption
that the collection of factors that may properly be considered in the com-
pensability analysis was closed after Ballaris and Alvarez highlights the
incorrect view it takes of the compensability inquiry. It is appropriate to
consider every fact relevant to donning and doffing police uniforms and
gear, and to evaluate those total circumstances under the previously estab-
lished law. But the majority in substance has artificially narrowed the
inquiry to one factor: location. In so doing, the majority eschews Alvarez’s
context-specific approach.
4790 BAMONTE v. CITY OF MESA
should remain distinct. While Ballaris and Alvarez may sug-
gest that on-site donning will usually be sufficient to trigger
compensability under the FLSA, on-site donning is not neces-
sary to make work-related activity, like putting on protective
gear, compensable. Rather, the only necessary conditions
remain those set out by the Supreme Court in Steiner: donning
the clothing or gear must be an “integral and indispensable
part of the principal activities for which [the officers] are
employed.” 350 U.S. at 256. It is how the piece of equipment
is used, not just where it is donned or doffed, that makes
donning and doffing integral and indispensable.
The majority says that it is not announcing a bright-line
location condition for donning and doffing to be compensa-
ble. But we must evaluate the likely interpretive effects of its
rationale. First, it adopts the Department of Labor’s “focus on
the location of donning and doffing.” Op. at 4779. Second, in
parting ways with Steiner, Alvarez, and Ballaris—cases that
compensated donning and doffing—the majority does not rea-
son that donning and doffing were “integral and indispens-
able” there but not here, as Supreme Court precedent requires.
See Steiner, 350 U.S. at 256. Instead, the majority asks
whether “on-premises donning and doffing” were required in
Steiner, Alvarez, and Ballaris. Op. 4774 (emphasis added). By
limiting the discussion of Steiner, Alvarez, and Ballaris to the
“on-premises” changing requirement, the majority narrows a
many-factored test into a one-fact inquiry. Only by transform-
ing on-premises donning and doffing into the signal fact of
those cases can the majority assert that the facts in this appeal
are “diametrically opposed” to Steiner, Alvarez, and Ballaris.
See Op. at 4773. The final point demonstrating that the opin-
ion in effect creates a bright-line rule jumps out from the
majority’s conclusion, which holds that donning and doffing
is not compensable “where no requirement . . . mandates
donning and doffing at the employer’s premises.” Op. at 4786
(emphasis added).
In short, whether the majority is cognizant of it or not, its
reasoning in substance imposes a location prerequisite before
BAMONTE v. CITY OF MESA 4791
donning and doffing can be compensable. In making mere
location such a salient and dispositive factor, the majority
errs. I do not believe the Supreme Court’s context-specific
FLSA jurisprudence reasonably supports the imposition of a
location requirement for donning and doffing that does not
apply to other work activities. The location where the activity
is performed should inform, but not control, our inquiry. I
would continue to use location as one of many ingredients in
the compensability determination but would not make it dis-
positive in a subset of FLSA cases.
B
The second problem I see with the bright-line location
requirement is that it will not effectively create the bright line
that the majority seeks. The majority adopts the position taken
by the Department of Labor in a 2006 Advisory Memoran-
dum written to Department staff.3 That memorandum states
that “[i]t is our longstanding position that if employees have
the option and ability to change into the required gear at
home, changing into that gear is not a principal activity, even
when it takes place at the plant.” Dep’t of Labor, Wage &
Hour Adv. Mem. No. 2006-2 (May 31, 2006).
The language about the “option and ability” to change at
home gives rise to the argument that donning and doffing is
compensable where employees do not have the true ability to
perform the tasks at home. This argument—that a de facto
requirement forces the employee to don and doff on-site—has
been repeatedly advanced by police officers in our circuit,
often in response to the employer’s invocation of the 2006
Advisory Memorandum. See, e.g., Valladon v. City of Oak-
3
Neither the 2006 Advisory Memorandum nor the Department’s State-
ments of General Policy regarding the Portal-to-Portal Act carry the force
of law because they are not the product of formal adjudication or notice-
and-comment rulemaking. See 29 C.F.R. § 790.1(b)-(c); Christensen v.
Harris County, 529 U.S. 576, 587 (2000).
4792 BAMONTE v. CITY OF MESA
land, 2009 WL 3401263, at *9-10 (N.D. Cal. 2009) (denying
city’s motion for summary judgment because sufficient evi-
dence supported a de facto policy requiring officers to don
and doff on-site); Dager v. City of Phoenix, 646 F. Supp. 2d
1085, 1100 (D. Ariz. 2009) (finding that option to don and
doff at home was not “illusory” because twenty-nine officers
changed completely or partially at home); Maciel v. City of
Los Angeles, 569 F. Supp. 2d 1038, 1049 (C.D. Cal. 2008)
(finding that “[f]or all practical purposes, the equipment must
be donned and doffed at the assigned station”); Lemmon v.
City of San Leandro, 538 F. Supp. 2d 1200, 1206 (N.D. Cal.
2007) (finding “strong indicia that the donning and doffing of
the uniform at the police station is a de facto requirement”);
Martin v. City of Richmond, 504 F. Supp. 2d 766, 776 (N.D.
Cal. 2007) (finding genuine issue of material fact as to
whether the nature of police work permits off-site donning
and doffing). Indeed, the allegation of a de facto policy
requiring on-site donning and doffing was raised in this very
case. Bamonte v. City of Mesa, 2008 WL 1746168, at *6 (D.
Ariz. 2008). The majority opinion endorses this argument by
explaining that employees “must have the ability to don and
doff their gear at home, not just the option.” Op. at 4783 n.16.
Rather than clarifying whether donning and doffing of
police uniforms and gear is compensable, the majority’s
approach will just change the terms of the debate. Employees
will now focus their energies on showing either that (1) their
employer maintains a de facto policy requiring on-site donn-
ing and doffing, or (2) that the nature of their work requires
it. The bright-line location requirement will do little to resolve
the issue of when police officers must be compensated for
donning and doffing their uniforms and gear. While straying
from the Supreme Court’s context-specific principles, the
majority’s approach will in effect provide little actual guid-
ance.
II
Applying a context-specific approach to the Mesa officers’
claims, I agree with the majority that the time officers spend
BAMONTE v. CITY OF MESA 4793
donning and doffing their uniforms is not compensable. I
would hold, however, that the time spent donning and doffing
the protective gear is compensable, subject to a de minimis
analysis.
A
Where uniforms are concerned, we start with the baseline
understanding that changing clothes under “normal condi-
tions” is a non-compensable preliminary or postliminary
activity under the Portal-to-Portal Act. Steiner, 350 U.S. at
249. For clothes changing to become compensable in this
case, it must be integral and indispensable to policing, mean-
ing that it is necessary to the principal policing activities and
done for the benefit of the employer. See Alvarez, 339 F.3d
at 902-03.
In the cases where donning and doffing a “uniform” has
been found compensable Steiner and Ballaris—the uniform
performed a job-related function other than merely identifying
the wearer with a particular occupation. In Steiner, the “old
but clean work clothes” provided by the employer and worn
by the employees helped protect workers from lead oxide poi-
soning. 350 U.S. at 250-51. Clothes changing also helped the
employees avoid injury related to severe sulphuric acid burns.
Id. at 250. In Ballaris, some employees were required to wear
a uniform consisting of a polo shirt, pants, and shoes under
their protective bunny suit. 370 F.3d at 903-04. The uniform,
according to the employee manual, was necessary for many
reasons, including to “limit potential cleanroom contamina-
tion from the clothing worn under the cleanroom suits.” Id. at
904. The uniform aided the manufacture of silicon wafers by
limiting air-borne impurities introduced through street
clothes. Id. at 903. In both Steiner and Ballaris, it was the
functional role of the uniform, not the fact that it identified the
employee, that triggered compensability.
The Mesa officers’ uniforms identify them as police offi-
cers, and they argue that this creates a “command presence”
4794 BAMONTE v. CITY OF MESA
that is necessary to their work in arresting suspects or quieting
volatile situations. Yes, the uniform connotes authority, but
the long-sleeved shirt, tie, nametag, trousers, socks, and
authorized footwear do not assist the officers in making
arrests, interviewing witnesses, or writing reports—to name a
few of their principal activities—any more than substitute
clothing would. The ability of undercover officers, who wear
no uniform, to effectively police illustrates the point. I agree
with Judge Breyer’s view:
Aside from the authority they connote, [the articles
of an officer’s uniform] do not help catch suspects,
and they do not protect officers from violence.
Something more than the salutary effect of a uniform
on those who recognize its cultural significance is
necessary to make its donning and doffing “integral
and indispensable” to an officer’s “principal activi-
ties” of law enforcement. If the law were otherwise,
all uniforms would entitle their wearers to compen-
sation under the FLSA.
Martin, 504 F. Supp. 2d at 774. Because I conclude that the
officers’ uniforms are not necessary to the principal work of
policing, I concur in the portion of the judgment holding that
the time spent donning and doffing the uniforms is not com-
pensable.
B
The analysis with respect to the protective gear is entirely
different. The Mesa officers are required at all times to wear
a duty belt, belt keepers, firearm and holster, magazine cases,
handcuffs and case, CAP-STUN spray and holder, telescopic
baton and holder, TASER with holder, and a portable radio
with holder. A bullet-proof vest, helmet, and traffic vest must
be available to the officers at all times, and the donning of
these items is mandatory in certain circumstances, such as
when the officer executes a search warrant or directs traffic.
BAMONTE v. CITY OF MESA 4795
The officers are also required to have leg and arm restraints
and a flashlight available at all times while on shift. The City
of Mesa issues most of this gear and reimburses officers for
the purchase of their bullet-proof vests. These tools, which are
always worn or available during the shift, are “job-related
protective gear.” See Alvarez, 339 F.3d at 903.
The police protective gear is similar to the sanitary aprons,
liquid-repelling sleeves, metal-mesh gear, and Kevlar gloves
at issue in Alvarez. The meat-processing employees were
required to don and doff the protective gear “at various inter-
vals throughout the workday.” Id. Because the Alvarez
employees were required by law, employer policy, and the
nature of the work to don and use the protective gear, that
gear was “necessary to the principal work performed.” Id.
Finally, donning and doffing the job-related protective gear
was done for the benefit of the employer, because the gear
helped the employer satisfy legal requirements, prevent con-
tamination, and avoid workplace injury. Id.
Analogizing the protective gear worn by police to the gear
in Alvarez, I conclude that the time spent donning and doffing
the police protective gear is integral and indispensable. The
gear is necessary to making arrests and protecting the public
from injury, two of the principal activities performed by the
Mesa officers. More specifically, officers use the flashlight to
locate suspects and evidence, and use the portable radio to
call for backup. The firearm, baton, CAP-STUN spray, hand-
cuffs, and TASER all help the officers restrain and subdue
suspects and protect the officers and members of the public
from dangerous persons. The helmet, traffic vest, and bullet-
proof vest further protect the officers’ safety while they
engage in dangerous principal activities. This gear is indis-
pensable to the task of policing, and the flexibility surround-
ing where the gear may be donned and doffed cannot
singlehandedly alter that fact.
Donning and doffing the protective gear is also done for the
benefit of the employer, one of the main considerations in
4796 BAMONTE v. CITY OF MESA
determining compensability. Alvarez, 339 F.3d at 902. Gear
that prevents unnecessary workplace injury is donned for the
employer’s benefit. Id. at 903. The protective gear helps offi-
cers avoid injury or death during violent situations. Likewise,
officers use their protective gear to help keep the public safe
while on the roads or when threatened with violence. The gear
serves the dual function of protecting the officers and protect-
ing the public, and it is therefore donned for the benefit of the
City of Mesa. Having determined that the job-related protec-
tive gear is necessary to the principal work performed and
donned for the benefit of the employer, I would hold that
donning and doffing of this gear is integral and indispensable
to the principal policing activities. See id.; Ballaris, 370 F.3d
at 910-11.
The last step in the compensability analysis is a determina-
tion of whether an otherwise-compensable activity is not com-
pensable because the time required to complete it is de
minimis. Op. at 4771; see also Alvarez, 339 F.3d at 903 (cit-
ing Lindow v. United States, 738 F.2d 1057, 1061-62 (9th Cir.
1984)). The Supreme Court has said that the FLSA does not
compensate “a few seconds or minutes of work beyond the
scheduled working hours.” Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 692 (1946). We have said that “periods of
approximately 10 minutes” are often considered de minimis.
Lindow, 738 F.2d at 1062 (citing cases finding periods
between two and fifteen minutes de minimis). I might imagine
that the time it takes to put on and take off a belt and vest runs
only in seconds, or a few minutes, and is not compensable
under the de minimis test, but, given the district court’s
approach, the parties did not make a record on the de minimis
issue.4 So, on my theory of the case, a remand would be nec-
4
Even if the time to put on and take off the protective gear is not de
minimis and is compensable under the FLSA, the officers’ commute time
would not thereby be rendered compensable. Commute time is specifically
excluded from FLSA compensability. 29 U.S.C. § 254(a)(1); 29 C.F.R.
§ 785.16. That is true even where some at-home activities following the
BAMONTE v. CITY OF MESA 4797
essary for an evidentiary hearing to determine whether the
time spent to don and doff the protective gear is de minimis.
III
I disagree with the location-based bright-line rule created
by the majority, prompting me respectfully to dissent.5 I
would instead conclude that the donning and doffing of police
protective gear is compensable unless the time involved is de
minimis. I concur in the judgment to the extent that it holds
that the donning and doffing of the police uniform is not com-
pensable.
commute are compensable. See Rutti v. LoJack Corp., No. 07-56599, slip
op. 3247-3258 (9th Cir. Mar. 2, 2010) (holding that data transmissions
performed at home are an integral and indispensable part of the principal
job activity, but nonetheless holding that the off-the-clock activity did not
extend the workday or render commute time compensable).
5
Although I ground my disagreement on a different view from the
majority about the Supreme Court’s controlling precedent, I also have
grave pragmatic reservations about the consequences of the majority’s
rule. It may be penny wise but pound foolish to save the expense of com-
pensating for protective gear donned at home. This is only an illusory sav-
ing if the work was de minimis in any event. Worse, to the extent that the
majority’s holding may deter some police from using protective gear,
there may be increased injuries or even lives lost. Consider that officers
might intervene to address problems threatening public safety while they
are en route to work, and if so dangers increase absent protective gear.
That the majority labels this possibility “hyperbole” does not resolve my
concern.