No Overtime Pay to Firefighters to Pick Up Protective Gear

By Michael N. Westheimer and Lauren E. Ball Oct 15, 2015
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Firefighters did not have to be paid for time spent retrieving protective gear at their home fire station before reporting for shifts at a visiting fire station, the 9th U.S. Circuit Court of Appeals ruled.

Plaintiffs are firefighters at the Menlo Park Fire Protection District who occasionally work shifts at visiting stations. The firefighters have protective gear that must be immediately accessible to them while at work – pants, coats, helmets and boots. They are allowed to take their gear home with them at the end of the shift, but many prefer to leave the gear at their home station.

Working at a visiting station can arise in several circumstances. Firefighters who arrive early to a shift at their home station may be told to report to a visiting station instead. Firefighters also can volunteer to take overtime shifts at visiting stations, and may be called at home and told to report to a visiting station the following day. In both scenarios, the firefighters do not start getting paid until they arrive at the visiting station to begin the shift, and are not paid for the time it initially takes to collect and transport their gear from their home station.

The 9th Circuit rejected the firefighter’s claims that they should be paid for gear retrieval time. The court observed that the air Labor Standards Act (FLSA) was amended by the Portal to Portal Act, which excludes activities from compensable time that are preliminary or postliminary to the principal activities the employee is employed to perform.

The court distinguished preliminary and postliminary activities, which are not compensable under FLSA, from activities that are an integral and indispensable part of the employee’s principal activities and are compensable. An activity may still be preliminary or postliminary, and thus not compensable, even when the employer requires the activity and it is for the employer’s benefit. To be considered integral and indispensable, the activity must be an intrinsic element of the employee’s principal activities and one that cannot be dispensed with if the employee is to perform his or her principal activities.

Applying this rationale to the firefighter’s claims, the court found that the firefighters can take their gear home with them when they sign up for overtime calls to visiting stations, which would dispense with the need to stop by their home station first to pick up their gear. The court further found that firefighters who report early to their home station are not paid for their time before the start of the shift, so spending what otherwise would be leisure time gathering and transporting gear to a visiting station is not intrinsic to their firefighting duties. Since the activities at issue are not an integral and indispensable part of the firefighters’ principal activities, they are not compensable.

Balestrieri v. Menlo Park Fire Prot. Dist., 9th Cir., No. 12-15975 (Sept. 4, 2015).

Professional Pointer: A preliminary or postliminary activity that is not an integral and indispensable part of an employee’s principal activities need not be compensated under the FLSA, even when the employer requires the activity and it is for the employer’s benefit.

Michael N. Westheimer is a shareholder and Lauren E. Ball is an associate in the San Francisco office of Ogletree Deakins, a labor and employment law firm representing management.

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