Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


11/20/2014

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision. 

Introduction 

On August 7, 2013, the U.S. Office of Personnel Management (OPM) received a Fair Labor Standards Act (FLSA) claim from Mr. Gregory L. Nowlin.  The claimant contends that his agency violated the FLSA by failing to compensate him for the donning and doffing of his uniform and accompanying gear.  During the claim period he occupied the position of Officer, LE-0083-01, in the Uniformed Division (UD), U.S. Secret Service (USSS), U.S. Department of Homeland Security, in Washington, D.C.  We accepted and decided this claim under section 4(f) of the FLSA as amended.

To help decide this claim, we conducted interviews with the claimant on September 18, 2014, and his first-level supervisor on September 30, 2014.  In reaching our FLSA decision, we considered the information gained from these interviews and all other material of record furnished by the claimant and his agency.   

Background

The claimant’s agency determined that his position is nonexempt from the overtime provisions of the FLSA and we concur.      

The claimant is a Sergeant in the UD providing general supervision over officers under his command.  He is assigned to the Vice Presidential Protection Division, Naval Observatory Branch.  The UD requires the claimant to wear a regulation uniform and related protective gear while on duty.  Therefore, prior to his assigned shift and after his shift is over, the claimant changes into and out of his uniform and protective gear in a locker room provided for officers.  The claimant believes the time spent donning and doffing his uniform and safety equipment pre-shift and post-shift is compensable under the FLSA.    

On August 13, 2012, one of the claimant’s co-workers filed an internal grievance against the USSS, claiming he should be compensated for the time spent on said activities.  According to the claimant, his co-worker never received a response concerning the grievance.  The claimant subsequently filed an FLSA claim with OPM.    

Evaluation of Overtime Claim 

Donning and doffing the uniform

Under UD policy, the claimant’s regulation uniform consists of black boots, a white uniform collared shirt, black or navy blue socks, a police badge, a name badge, a tie, and slacks.  The claimant prefers to don (put on) and doff (take off) his uniform in the agency locker room, as opposed to his home, for what he cites as safety concerns.  Specifically, he writes that “Secret Service personnel in uniform alert insurgents targeting high priority government facilities when conducting pre-attack surveillance in an attempt to breach government locations.”          

The claimant believes that U.S. Supreme Court case IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), supports his claim.  In Alvarez employees in a meat processing plant were entitled to compensation for their time spent putting on and taking off protective equipment and clothing.  Alvarez makes clear that activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principle activities…”    

The claimant notes that 5 CFR 551 implements the FLSA, and it generally requires the agency to compensate employees for “preparatory or concluding” activities.  As stated in section 551.412:

(a)(1) If an agency determines that a preparatory or concluding activity is closely related to an employee’s principle activity, and is indispensable to the performance of the principle activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes, as hours of work.

We accept that the claimant does not wear the uniform for personal style or convenience; rather for the demands of his working environment.  The uniform allows the claimant to be identified while carrying out his law enforcement tasks.  Therefore, we concede that the uniform is integral and indispensable to the performance of his principle activities as an officer.  The issue before us then is whether or not the employer requires the claimant to dress on the agency’s premise.             

In its report to OPM, the agency states that per policy the uniform and all of the protective gear may be worn to and from work.  It states that there is no rule or other policy requiring that the claimant don and doff his uniform and/or protective gear in the locker room, therefore it is a personal choice and not compensable under the FLSA.  Under the Uniformed Division Manual, section UND-24, Regulation Uniforms (dated June 7, 2011): “Members may wear the police uniform to and from their residence and place of work if the uniform is worn in its entirety, including the breast badge.” 

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) administers and enforces the FLSA with respect to private employment, State and local government employment, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority.  The FLSA is administered by OPM for employees of other Executive Branch agencies, and by the U.S. Congress for covered employees of the Legislative Branch.  OPM’s administration of the FLSA must comply with the terms of the FLSA but the law does not require OPM’s regulations to mirror the DOL’s FLSA regulations.  OPM’s administration of the FLSA must be consistent with DOL’s administration of the FLSA only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the FLSA.  While OPM attempts to be consistent with DOL’s FLSA regulations, generally OPM utilizes FLSA guidance from DOL for instructive purposes only.  

Although not directly applicable to Federal employees such as the claimant, in an advisory memorandum regarding Alvarez, DOL’s WHD expressed its view that the FLSA does not require compensation for donning and doffing gear if employees have the option and the ability to change into the required gear at home when it opined:

Therefore, the time, no matter how minimal, that an employee is required to spend putting on and taking off gear on the employer’s premises is compensable ‘work’ under the FLSA. [P] However, 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 the 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 [place of employment]. Wage & Hour Adv. Mem. No. 2006-2 (May 31, 2006).

We find that the DOL 2006 memorandum is instructive in our resolution of this claim.  It is clear to us that if donning and doffing a uniform at work is required by law, regulation, employer policy, or the nature of the job, the time spent performing such activity is compensable as it is necessarily integral and indispensable to the performance of the employee’s principal activities.  However, in the present case, neither law, regulation, nor workplace policy mandates that the claimant dress at work.  In fact, during our interview with the claimant he indicated that several officers choose to dress at home.  Therefore, dressing at home is apparently not an unrealistic option.  Accordingly, the claimant’s donning and doffing of the uniform (not including safety equipment) is not a compensable activity under the FLSA as the claimant has the option and the ability to change into the required uniform at home.       

Lastly, the claimant’s allegation of not wanting to wear the uniform to work for safety concerns is insufficient to create a persuasive argument.  By the claimant’s own admission, other officers who dress at home cover their uniform while traveling to and from work.  The claimant has not presented any evidence of any safety threats or hostile encounters stemming from donning and doffing his uniform at home. 

Donning and doffing protective gear

The claimant’s protective gear consists of a bullet-proof vest, a radio, a gas mask, and a gun belt containing a baton, magazine pouches, a flashlight, keys, and a holster for the claimant’s issued firearm.  Here, we concede that the protective gear is integral and indispensable to the performance of the claimant’s principle activities.  Indeed, it would be unthinkable to send the claimant into the streets to perform his protective duties without protective gear. 

The claimant’s bullet-proof vest is made out of Kevlar material.  It is lightweight (between 2-3 pounds) and is invisible to all but the wearer, as it is worn under the shirt.  Since the claimant wears the vest underneath his shirt, and neither law, regulation, nor workplace policy mandates that the claimant dress at work, donning and doffing the vest is not a compensable activity under the FLSA, as it too can be put on at home along with the uniform.       

The agency stated and the claimant acknowledges that he may, in theory, take the gun belt, radio, and gas mask home and put them on there.  However, given their bulk, this would be a less-than-ideal option.  These tools, which are always worn or available during the shift, are job-related protective gear.  Again, we concede that the gear is integral and indispensable to the performance of the claimant’s principle activities.  Therefore, unless the time spent gearing up is de minimis, then it is compensable under the FLSA.                 

Under the de minimis doctrine, employers will not be deemed liable under the FLSA for otherwise compensable work when only a few seconds or minutes beyond the scheduled working hours are in dispute.  Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 692 (1946).  During our on-site review of the claimant’s position, we witnessed that it takes the claimant no longer than 4-5 minutes to fasten the gun belt, strap the gas mask to his leg, and put the radio on.  When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, this time is not compensable.  It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.    Applying the de minimis doctrine, we conclude that the claimant’s time of approximately 4-5 minutes spent donning and doffing the protective gear is disregarded as de minimis and no FLSA overtime pay is due.          

Operational check of the firearm

During our interview with the claimant, he verbally introduced a new issue related to the donning aspect of his claim for FLSA overtime pay.  In general, we do not allow new assertions to be introduced during the interview since OPM customarily requests an agency administrative report (AAR) from the employing agency after accepting an FLSA claim.  In requesting an AAR, the agency is put on notice of all assertions raised by the claimant and is provided an opportunity to respond to these assertions.  Introducing newfound issues after OPM has already received the agency report negates its opportunity to respond.  Nonetheless, we will address the claimant’s assertion as we have obtained sufficient information from the agency as part of our claim investigation to resolve this issue.

After the claimant has dressed himself in the locker room, and prior to reporting for duty, he performs an operational/safety check of his firearm in a nearby room known as “the loading box.”  The room allows the claimant to inspect his duty weapon for functionality.  The loading box is located in the same building as the locker room and the room to which the claimant reports for roll call.  According to the claimant, getting to the room and inspecting his firearm takes approximately 3-4 minutes.  He is not compensated for this time and believes that it is compensable under the FLSA.

Here, we again apply the de minimis doctrine.  We conclude that the claimant’s time of approximately 3-4 minutes spent performing an operational/safety check of his firearm is disregarded as de minimis and no FLSA overtime pay is due.  We also note performing a daily operational check of one’s firearm is not a requirement mandated by the claimant’s agency.     

As a final matter, we address the claimant's request that OPM rescind a July 16, 2012 policy letter issued by the agency.[1]  Under subpart G of part 551 of title 5, CFR, OPM adjudicates FLSA claims brought by employees who seek to challenge their exemption status and/or seek unpaid compensation under the Act.  It does not extend to rescinding or changing agency policy within the proper interpretation and application of the statute or regulations.  Therefore, OPM does not have jurisdiction to consider, or issue a decision on, the request.

Decision

Based on the above analysis, the claimant is not due FLSA overtime pay.  

 

 

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