NYC Parks Workers' Donning and Doffing Case Revived

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By Hassan A. Kanu

Aug. 2 — A collective action brought by current and former assistant park rangers challenging New York City's refusal to pay them for time spent putting on and taking off their uniforms and equipment was revived Aug. 2 by the U.S. Court of Appeals for the Second Circuit ( Perez v. New York , 2d Cir., No. 15099315, 8/2/16 ).

A lower court, in dismissing the group's claims under the Fair Labor Standards Act, found that “donning and doffing” uniforms doesn't qualify as compensable activity because it isn't “integral and indispensable” to their principal duties.

The “integral and indispensable” standard is “markedly `fact-dependent,' ” Judge Robert Sack wrote for the Second Circuit. The lower court classified the rangers uniforms, including their equipment, as purely protective gear. It also characterized the protective elements of the uniform, like a baton and mace, as generic safety gear.

The appeals court reconsidered the “fact-dependent” standard and then clarified the decision it reached in Gorman v. Consol. Edison Corp., 488 F.3d 586 (2d Cir. 2007).

“Both lower courts, and other circuits, had been reading Gorman to establish a per se rule that generic protective gear, as distinguished from specialized protective gear, could never be integral and indispensable,” one of the rangers' attorneys, James Reif of Gladstein, Reif & Meginniss LLP, told Bloomberg BNA Aug. 2. The lower court in this case granted summary judgment to the city on that basis, without considering the parties' other arguments, he said.

In this ruling, the Second Circuit judges “said they hadn't intended that in Gorman, which is in accordance with the majority of other courts,” Reif said.

Facts Reconsidered

Among the first considerations in these cases is the degree to which the pre- or post-shift activity is done for the employer's benefit, the Second Circuit said.

Courts should also consider whether the employee has a choice in the matter, whether the activity takes place at home or in the workplace and whether the activity is done to prepare items used to perform principal activities.

In this instance, the rangers don't have a choice as to whether to wear uniforms and are required to do so at the workplace, Sack wrote. “More fundamentally,” the uniforms are “a visible signal of authority,” and their utility belts hold items used to perform law enforcement tasks, he said.

The court said it couldn't conclude, based on those considerations, that the donning and doffing of rangers' uniforms aren't integral and indispensable to their duties.

Gorman Clarified

Gorman “did not endorse” a “categorical rule” that generic protective gear is never integral and indispensable to an employee's principal activities, Sack wrote.

Rather, the case held that the donning and doffing of generic safety gear, such as helmets and goggles, isn't integral and indispensable “because the items at issue guarded against only routine workplace risks,” he said. “The generic nature of the items may have pointed toward that” conclusion, but their generic nature “did not establish, as a matter of law, that they guarded against only routine risks,” Sack said.

The proper inquiry under Gorman is to “determine whether the gear—however generic or specialized—guards against `workplace dangers' that accompany the employee's principal activities and `transcend ordinary risks,' ” according to the appeals court. That inquiry requires a “fact-intensive examination of the gear” and its relationship to the employee's principal activities, it said.

The court noted that the “risk of sustaining gunfire while enforcing municipal laws is not, in our view, an ordinary risk of employment.” Thus, under Gorman, the rangers donning and doffing a bulletproof vest—considered separately from the rest of their uniform—“may qualify as integral and indispensable,” it said.

The court sent the case back for a consideration of the parties' remaining arguments.

Other Law Enforcement Differs

“The result here is that the court has provided greater clarity for both plaintiffs and defendants, which I think will be helpful going forward,” Reif said.

Nothing in the rangers' collective bargaining agreement “addresses the question of compensation for time spent donning and doffing,” Reif said.

The holding may not apply directly to other types of law enforcement officers, such as police, he said. “In our case the plaintiffs are, as a practical matter, required to put the uniform on at the job, and take it off at the job, whereas I think most police officers do so at home,” Reif said. “So this doesn't necessarily apply to police or correctional officers the same way it applies to park rangers.”

The city law department represented New York.

To contact the reporter on this story: Hassan A. Kanu in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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