Carlo Llorca v. Sheriff, Collier County, Florida
Opinion of the Court
Plaintiffs-Appellants, former sheriff deputies in Collier and Lee County, Florida, sued the Collier and Lee County sheriffs pursuant to the Fair Labor Standards Act ("FLSA"),
*1322I. STANDARD
"We review a district court's order granting summary judgment de novo." Zaben v. Air Prods. & Chems., Inc.,
II. BACKGROUND
Carlo Llorca worked as a road patrol deputy with the Collier County Sheriff's Office. The named Lee County Plaintiffs worked as follows: Kevin Calderone worked as a road patrol deputy and as a detective; George Schwing worked as a road patrol deputy; Michael Zaleski worked as a detective; and Selena Lee worked as a traffic unit deputy. The Collier and Lee County sheriffs required all deputies to arrive for their shifts wearing a uniform and the following protective gear: a "duty belt," a radio case, pepper mace, a baton strap, a magazine pouch, a radio, a flashlight, handcuffs, a holster, a first-responders pouch, and a ballistics vest. The deputies were allowed to, and actually did, don and doff this protective gear at home. They contend that the donning and doffing process took a total of thirty minutes per shift. The sheriffs did not pay the deputies for the time that they spent donning and doffing the protective gear.
The deputies also commuted to and from work in marked patrol vehicles. The sheriffs required the deputies to have their radios on during the commute, listen to calls in the district through which they were driving, and respond to major calls and emergencies. Additionally, the sheriffs required deputies who commuted in marked patrol vehicles to observe the roads for traffic violations and engage in general traffic law enforcement during their commutes.
*1323III. DISCUSSION
In 1938, the FLSA established minimum wage and overtime compensation at one and one-half times the employee's regular rate of pay for hours over a certain number per pay period.
Congress responded in 1947 with the Portal-to-Portal Act. Congress "found that the FLSA had '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.' " Id. at 516-17 (quoting from the findings of Congress in
[N]o employer shall be subject to any liability or punishment under the Fair Labor Standards Act ... on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities ...
(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 postliminary 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. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
For purposes of determining which activities are integral and indispensable, we agree with the Second Circuit that " '[i]ndispensable' is not synonymous with 'integral.' " Gorman v. Consol. Edison Corp.,
*1324Both the Supreme Court and this Court have previously held as much. See IBP, Inc. v. Alvarez,
"The integral and indispensable test is tied to the productive work that the employee is employed to perform."
Thus, § 254(a), Integrity Staffing, IBP, Inc. v. Alvarez, and Bonilla establish for this Circuit that commuting time and other preliminary and postliminary activities are compensable only if they are both an integral and indispensable part of the principal activities. The inquiry is fact-intensive and not amenable to bright-line rules. Nevertheless, whether a particular set of facts and circumstances is compensable under the FLSA is a question of law for the Court to decide. Dade Cty. v. Alvarez,
A. The Deputies Are Not Entitled to Compensation for Time Spent Donning and Doffing Protective Gear
Even though donning and doffing protective gear may arguably be "indispensable," we hold that it is not "integral" to the deputies' principal activities. An "integral" activity "form[s] an intrinsic portion or element [of the principal activities], as distinguished from an adjunct or appendage." Integrity Staffing,
This conclusion finds support in the purpose of the Portal-to-Portal Act. As the Supreme Court set out in Integrity Staffing, in passing the Portal-to-Portal Act, "[Congress] found that the FLSA had '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.' "
Our position also finds persuasive support in the Department of Labor (DOL) regulations and a May 31, 2006 memorandum.
The deputies here were allowed to don and doff their protective gear at home and actually did so. There may be circumstances in which donning and doffing at home is so closely related to an employee's principal activities that it is integral and indispensable to those activities and therefore compensable. However, the DOL has indicated that, generally, donning and doffing at home is akin to changing clothes under normal conditions and thus not compensable. We conclude that the position of the DOL is persuasive; it is reasonable, is consistent with the agency's long-established position and is consistent with the purpose of the Portal-to-Portal Act. The deputies here do not point to any circumstances that make the donning and doffing at home in these cases particularly related to their law enforcement duties other than the necessity of the protective gear to their job performance. As noted above, the fact that the deputies need their protective gear in order to perform their principal activities is insufficient to establish that the donning and doffing process is an intrinsic part of their principal law enforcement duties. See Bonilla,
Finally, we conclude that the reliance placed by Plaintiffs on Steiner is misplaced. The donning and doffing issue faced by the Supreme Court there is vastly different from the issue in our cases. In Steiner, the battery plant workers used "dangerously caustic and toxic materials" and were "compelled by circumstances, including vital considerations of health had [sic] hygiene, to change clothes and to shower in facilities which state law [and the employer's insurer] require[d] their employer to provide."
For all these reasons, we conclude that the donning and doffing at home of the deputies in our cases was not compensable under the FLSA.
B. The Deputies Are Not Entitled to Compensation for Time Spent Commuting in Marked Patrol Vehicles
The time that the deputies spent commuting in marked patrol vehicles is excluded from compensable work time by the Portal-to-Portal Act. The plain language of § 254(a)(1) indicates that commute time is generally not compensable. Even more importantly, the statute expressly *1327addresses the situation in which an employee commutes in an employer's vehicle and provides that "[f]or purposes of this subsection, ... activities performed by an employee which are incidental to the use of [an employer's] vehicle for commuting shall not be considered part of the employee's principal activities."
It would undermine law enforcement if marked patrol cars, driven by uniformed officers, routinely passed by accidents, disabled vehicles, flagrant safety violations, or even routine traffic violations. It is a matter of common experience that traffic violations multiply if there is an appearance among the public that traffic enforcement is lax. Thus, it would be highly inappropriate for uniformed officers to drive to and from work in marked patrol vehicles without observing the roads for traffic violations and other incidents. We believe that this means that such activities are incidental to the very use of the marked patrol vehicle. Thus, we conclude that such activities easily fall within the meaning of the statutory phrase: "For purposes of this subsection, ... activities performed by an employee which are incidental to the use of [an employer's] vehicle for commuting shall not be considered part of the employee's principal activities."
The DOL has issued a regulation regarding commuting in marked law enforcement vehicles that provides some additional support for our position. According to the DOL:
A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls.
*1328Moreover, even if monitoring the roads for traffic violations during their commutes were integral to the deputies' principal activities (which we do not believe it is), it is not indispensable. An "indispensable" activity is one with which an employee cannot dispense "if he is to perform his principal activities." Integrity Staffing,
Lastly, our conclusion regarding the deputies' commute time finds persuasive support in cases from sister circuits. The Federal and Sixth Circuits have held that law enforcement officers are not entitled to compensation for commuting in marked patrol vehicles, even if the officers are required to monitor their radios and, in the case of the Sixth Circuit, observe the roads for emergencies during their commutes. Adams v. United States,
C. The Deputies Are Not Entitled to Compensation Under the FMWA
The FMWA is to be interpreted as consistent with the FLSA. The Act provides, "Only those individuals entitled to receive the federal minimum wage under the federal Fair Labor Standards Act and its implementing regulations shall be eligible to receive the state minimum wage pursuant to s. 24, Art. X of the State Constitution and this section."
IV. CONCLUSION
For the foregoing reasons, we conclude that the deputies are not entitled to compensation for the time that they spent donning and doffing protective gear or the time that they spent commuting in marked patrol vehicles. We therefore affirm the district court's grant of summary judgment in favor of the sheriffs.
AFFIRMED.
We consolidate the above captioned cases for purposes of this appeal. Because the deputies are not entitled to compensation for any of the time for which they claim that they were not paid minimum wage, we do not address their argument that the district court erred by applying a work period averaging method to deny their FMWA claims.
There appear to be issues of fact regarding whether the sheriffs' policies required all Plaintiffs to be on the lookout for all traffic violations, as opposed to only looking out for flagrant violations, during their commutes. The Lee County Sheriff's Office Operations Manual provides: "While off-duty, personnel are not expected to be strict traffic infraction enforcers. However, they must not ignore flagrant violations which endanger life and/or property or could bring disrepute on the Office." But the Collier County Sheriff's Office Operations Manual does not appear to limit traffic enforcement during commutes to observing the roads for flagrant violations. Moreover, despite the Lee County provision, all of the named Lee County Plaintiffs who were allegedly not paid for commute time claim that they were required to observe the roads for all traffic violations and enforce the laws against even minor violators during their commutes. We assume for purposes of this appeal that all Plaintiffs were required to observe the roads for all traffic violations during their commutes.
The Lee County Sheriff paid deputies in the traffic unit from the time that those deputies left their homes until the time that they returned home after a shift. One of the named Lee County Plaintiffs, Selena Lee, worked in the traffic unit. Accordingly, Lee does not assert any claims based on a failure to pay her for time spent driving to and from work.
DOL interpretations of the FLSA and the Portal-to-Portal Act are not binding on this Court but may be considered to the extent that the Court finds the interpretations persuasive. See Bonilla,
The Second Circuit case Perez v. City of New York,
Plaintiff Llorca also points out that the Collier County Sheriff required him to perform a safety inspection of his vehicle and test his radar equipment before and after each shift. But in his brief on appeal, Llorca merely mentions this in his statement of the facts; he does not rely on it as evidence that his commute time was compensable. Moreover, the legislative history of the "[f]or purposes of this subsection ..." provision indicates that such activities are properly characterized as incidental. H.R. Rep. No. 104-585, at 5 (1996) ("[R]outine vehicle safety inspections or other minor tasks have long been considered preliminary or postliminary activities and are therefore not compensable."). Thus, we conclude that these activities are easily classified as incidental.
Llorca also argues that an issue of fact exists as to whether the Collier County Sheriff had a custom or practice to compensate deputies for commute time because a deceased deputy who was killed while commuting was treated as having been in the line of duty so as to qualify for a benefit to be paid to his family. We reject Llorca's argument; considering a deputy who was commuting to have been in the "line of duty" for purposes of the death benefit does not establish a custom or practice of compensating deputies for commute time.
All other arguments made by the deputies are rejected without need for discussion.
Concurring in Part
*1329I concur in full in the majority opinion, except for Section III (B) and (C). I agree with the majority opinion that the plaintiff deputies are not entitled to compensation under the FLSA or the FMWA for the time that they spend donning and doffing their police gear at home. However, based on the record in this case, I disagree about the time the deputies spend driving to and from work in their marked patrol vehicles because they are required to perform their law enforcement duties and work during that drive time.
Generally, the time spent by an employee commuting to and from work is not compensable. But there are exceptions to this rule, such as when the employee must perform work during his commute. See
Here, the record in the light most favorable to the plaintiffs reveals that the defendant sheriffs require that their deputies during their commutes not only keep their radios on and respond to emergencies if called, but also require that the deputies monitor the roads for all traffic violations and emergencies and actively use their radar detectors to determine whether other drivers are speeding. Hence, the deputies are actively working and doing much more than passively listening to their radios for emergency calls and, therefore, fall beyond the scope of the regulation relied on by the majority opinion,
Other courts assessing the compensability of commute times have made the sensible distinction between active and passive duties performed by an employee during his commute. See e.g., Reich v. N.Y.C. Transit Auth.,
The majority opinion concludes that the activities performed by the deputies during their commutes are incidental to the use of their marked patrol vehicles, reasoning that it would be "highly inappropriate" for the deputies to not observe the roads for traffic violations and emergencies during their commutes. See supra pp. 1326-27. I disagree with this analysis when applied to the facts of these cases. Indeed, the activities performed by the deputies during their commutes are some of the very traffic-related duties that the deputies were hired to perform, such as actively using their radar detectors and monitoring the roads for traffic violations. They are therefore principal law enforcement activities.
Given the record at this summary-judgment juncture, I respectfully dissent to Section III (B) and (C).
The defendant sheriffs also argue that, even if the time that the deputies spent donning and doffing their gear and commuting to and from their shifts is compensable, the sheriffs would not be in violation of the FLSA's or the FMWA's minimum wage provisions because, on average, the deputies were paid an hourly rate that exceeded the statutes' minimum wage requirements. The defendant sheriffs point out that even if the deputies spend an hour commuting each way, they are paid $31 an hour, and when all their hours are averaged, their pay is above the minimum wage. As the parties agree, five Circuits have adopted this "averaging method." U.S. Dep't of Labor v. Cole Enter., Inc.,
Reference
- Full Case Name
- Carlo LLORCA, an Individual, Plaintiff-Appellant, v. SHERIFF, COLLIER COUNTY, FLORIDA, Defendant-Appellee. Kevin Calderone, an Individual, George Schwing, an Individual, Michael Zaleski, an Individual, and Selena Lee, an Individual, Plaintiffs-Appellants, v. Michael Scott, as the Duly Elected Sheriff of Lee County, Florida, Defendant-Appellee.
- Cited By
- 26 cases
- Status
- Published