Second Circuit Gives Second Life to FLSA Claim Against New York City Parks Department

Edgar M. Rivera, Esq.

In Perez v. The City of New York, the Second Circuit analyzed what factors were relevant for a district court to determine whether an employer must compensate its employee for time spent putting on and taking off (“donning and doffing”) their uniforms.  Vacating the district court’s decision that donning and doffing of uniforms were not compensable activities under the Fair Labor Standards Act (FLSA), the Perez court found that it could not determine as a matter of law that the donning and doffing of uniforms were not “integral and indispensable to [plaintiffs’] principal activities.”  Plaintiffs, Assistant Urban Park Rangers, claim that defendants—the Parks Department and its Commissioner, along with the City of New York and Mayor de Blasio—provided inadequate compensations for their work by, among things, failing to pay wages for time spent donning and doffing their uniforms before and after each shift.

Assistant Urban Park Rangers are required to wear uniforms comprising both professional clothing and equipment.  The professional clothing includes “olive drab” pants and jacket, ranger-style hats, and various Parks Department insignias; the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.  The plaintiffs estimate that to don and doff those uniforms takes five to thirty minutes each day.

Assistant Urban Park Rangers provide public services, such as: giving directions and other information to persons seeking to use parks or pools; offering assistance to those persons involved in accidents or those who may be victims of unlawful activity and investigating such accidents or activity; implementing crowd control procedures at special events; propagating safety and educational information to the public; and issuing summonses to or making arrests of persons suspected of unlawful conduct under laws, including New York City rules and regulations.

The FLSA generally mandates compensation for “the principal activity or activities which an employee is employed to perform,” including tasks that are “an integral and indispensable part of the principal activities.”  However, the FLSA does not require payment for time spent on “activities which are preliminary to or postliminary to” an employee’s principal activities.  An activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”  The more the activity is undertaken for the employer’s benefit, the more indispensable it is to the primary goal of the employee’s work; the less choice the employee has in the matter, the more likely such work will be found to be compensable.  Efforts to protect against “workplace dangers that transcend ordinary risks” may also qualify as “integral and indispensable.”  Courts have concluded that a butcher’s sharpening a knife, a radiological technician’s powering up and testing of an x-ray machine, and a K-9 officer’s feeding, walking, and training of a dog were integral and indispensable to their respective jobs.

With those precedents in mind, the Second Circuit found that it could not conclude as a matter of law whether an Assistant Urban Park Ranger’s donning and doffing of his uniform was not integral and indispensable to their principal activities as Assistant Urban Park Rangers. First, the court noted that plaintiffs were required to wear the uniforms and sanctioned for noncompliance.  Second, the uniforms appeared to be vital to the “primary goals of the plaintiffs’ work”: the utility belt holds items used to perform law-enforcement duties; the summons book is necessary for the issuance of summonses; a baton, mace, and handcuffs are critical in effecting an arrest; radio and flashlight may prove crucial in tracking suspects and coordinating with other employees.  Third, the bulletproof vests guards against “workplace dangers that transcend ordinary risks”: the risk of sustaining gunfire is not an ordinary risk of employment.  Finally, the uniform itself, adorned with Parks Department insignias and in a recognizable color scheme, is a visible signal of authority, attracting citizens in need of assistances and establishing the Assistant Urban Park Rangers as an authority.  In the end, the Second Circuit could not conclude that the plaintiffs’ donning and doffing of uniforms was not integral and indispensable to their principal activities and remanded the case back to the district court.

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