Gerard Rosano v. Township of Teaneck

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-1263
______
GERARD ROSANO; JOHN ABRAHAM, and all
persons similarly situated; ROLANDO ACOSTA;
MICHAEL ADOMILLI; MARK ADOMILLI; DOUGLAS
ALCOTT; TANYA BALSER; ANTHONY BIONDI;
RONALD BOSWELL; KEVIN BRENNAN; ANTHONY
BREZI; WILLIAM BRITTINGHAM; SARA
BRITTINGHAM;
ROSS BURNS; CHRISTOPHER BUSCAVAGE;
RAYMOND BYRNE; JOSEPH CARECCIO; ROBERT
CARNEY; THOMAS CARUSO; MICHAEL CHALOUB;
HAROLD CLARK; GLENN COLEY; KENNETH
CROONQUIST; ROBERT CROONQUIST;
WILLIAM CROONQUIST; MICHAEL CROWLEY;
DANIEL DALESSIO; MICHAEL DANENZA; JAMES
DEANNI; ARMAND DIVITE; KENNETH EGBERT;
JOHN FAGGELLO; MICHAEL FALVEY; MICHAEL
FERRANTE; PAUL FINKLER; THOMAS FINLEY;
MARK FISCO; PATRICK FORREST; DANIEL GARCIA;
JOHN GARCIA; ROBERT GLORIA; JOSE GONZALEZ;
WALTER HAASE; EDWARD HAHN; HARRY
HARRISON;
ROBERT HARVEY; JASON HOSEY; JOHN HYLAND;
KIMBERLY JOHNSON; DEAN KAZINCI; EDWARD
KAZMIERCZAK; GREGORY KERRISON; DENNIS
KLEIBER; SETH KRIEGEL; CHRISTOPHER
KURSCHNER; EDDY LIEVANO; RALPH LOCKE;
ZORAIDA LOPEZ; CRAIG LUEBECK; KEVIN
MARRERO; ANDREW MCGURR; LAMON MEEKS;
ROBERT MEHNERT; THOMAS MELVIN; GEORGE
MIROS; MICHAEL MOLIERE; GEORGE MOLINA;
RANDY MORALES; CHARLES MULLIGAN; JOHN
NOGUERAS; JAMES O'BRIEN; GLENN O'REILLY;
SPENCE OSAIGBOVO; ANGEL PAGAN; ARNO
PETERS; STEPHEN RAMIREZ; KEITH RICHTER;
MICHAEL RICHTER; JUSTIN RODRIGUEZ; GREGORY
RUCKER; RODNEY RYLAND; SAUL SANTIAGO;
GABRIEL SANTIAGO; THOMAS SULLIVAN; MICHAEL
SUNGA; SCOTT TESSER; JAMES THOMPSON;
VERONICA THORNTON; THOMAS TULLY; PERCY
WEST; JEANETTE WILLIAMS; GEORGE WRIGHT,
Appellants
v.
TOWNSHIP OF TEANECK, a political
subdivision of the State of New Jersey
______
On Appeal from United States District Court
for the District of New Jersey
(D. NJ. No. 2-09-cv-06339)
District Judge: Honorable Katharine S. Hayden
______
Argued October 29, 2013
Before: McKEE, Chief Judge, FISHER and SLOVITER,
Circuit Judges.
2
(Filed: June 10, 2014)
Marcia J. Tapia, Esq. ARGUED
Loccke, Correia, Schlager, Limsky & Bukosky
24 Salem Street
Hackensack, NJ 07601
Counsel for Appellants
Peter F. Berk, Esq.
Angelo J. Genova, Esq. ARGUED
Genova Burns Giantomasi & Webster
494 Broad Street
6th Floor
Newark, NJ 07102
Counsel for Appellee
______
OPINION
______
FISHER, Circuit Judge.
This case arises from an action brought by eighty-eight
current and former police officers ("Appellants") employed
by the Township of Teaneck ("Teaneck") in Teaneck, New
Jersey. Appellants contended that Teaneck violated the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., by
failing to: (1) pay proper overtime; (2) provide compensation
for time spent attending daily roll calls ("muster time"); and
(3) provide compensation for time spent putting on
("donning") and taking off ("doffing") uniforms and
3
equipment each day. The District Court granted summary
judgment in favor of Teaneck on all of Appellants' claims.
For the reasons set forth below, we will affirm.
I. BACKGROUND
A. Factual Background
The Teaneck Policemen's Benevolent Association,
Local 215, which represents Teaneck police officers, and the
Superior Officer's Association, which represents Teaneck
sergeants, lieutenants, and captains, have negotiated jointly
with Teaneck since 1979. The present dispute has its origins
in a collective bargaining agreement (the "Agreement") that
was in effect for an original term of January 1, 2004 to
December 31, 2007, and which remained in effect through
June 2011 due to an impasse in negotiations.
1. Overtime Compensation
The Agreement provides that police officers work
established and regularly recurring work periods of either
seven or nine days. These periods combine so that police
officers are required to work an average of 39.25 hours per
week over the course of a calendar year. Officers work under
either a "Six and Three" or a "Five and Two" plan. Those
working under the "Six and Three" plan work six eight-hour
tours over six consecutive days and then have three
consecutive days off. Those under the "Five and Two" plan
work five eight-hour tours over five consecutive days and
then have two consecutive days off.
If an officer performs work in excess of his or her
normal hours in any tour of duty, that work is considered
4
overtime which is compensated at a rate of time and one-half.
The Agreement provides for the accrual of overtime pay in
blocks based on the amount of time worked after a regular
tour. For example, if an officer works less than 31 minutes
past his scheduled tour, he receives no overtime; if the officer
works between 31 minutes and 44 minutes past his scheduled
tour, he receives 30 minutes of overtime; if he works between
45 and 52 minutes past his scheduled tour, he receives 45
minutes of overtime; and if he works between 53 and 59
minutes past his scheduled tour, he receives one hour of
overtime. Any overtime beyond one hour accrues in blocks
of 15 minutes.
2. Muster Time
The Agreement also provides for inspection and roll
call, or "muster time," which takes place ten minutes prior to
the start of officers' tours and ten minutes at the end of their
tours. Officers are required to report for muster time dressed
and prepared for duty. The effect of muster time is that for
each eight-hour tour, officers may work for eight hours and
twenty minutes. On any given day, officers may work less
than the eight hours and twenty minutes depending on the
length of the post-tour muster period. In those instances,
officers are still given credit for the full eight hours and
twenty minutes.
3. Donning & Doffing
The Agreement also sets forth specific uniform and
equipment requirements to which Teaneck police officers
must adhere while on duty. The uniform components of
individual police officers depend on whether the officer is
5
assigned to the "Uniform Division" or the "Non-Uniform
Division."
Regardless of assignment, there is no rule, regulation,
or other policy requiring that police officers don or doff their
uniform at Teaneck Police Headquarters. However, some
officers choose to don and doff partially at home and partially
at work, and some choose to don and doff completely at
Teaneck's headquarters, either in the locker rooms or their
personal offices. The option to change at work is primarily
for the benefit of police officers who have indicated concerns
regarding:
(1) the risk of loss or theft of
uniforms and gear at home; (2)
potential access to the gear by
family members; (3) distractions
at home that might interfere with
the donning process; (4) safety
concerns with performing firearm
checks at home; (5) discomfort
associated with wearing the gear
while commuting; (6) the
increased risk of being identified
as a police officer while off-duty;
and (7) potential exposure of
family members to contaminants
and bodily fluids.
App. at 115.
6
The Agreement, as well as all prior collective
bargaining agreements between the parties, is silent as to
whether Teaneck officers are entitled to compensation for
time spent donning and doffing. Additionally, the officers'
unions have never requested, through contract negotiations or
other means, compensation for time spent donning and
doffing.
B. Procedural Background
On December 16, 2009, Local 215 filed a complaint
against the Township of Teaneck under the FLSA to recover
unpaid compensation for: (1) overtime; (2) time spent during
muster time; and (3) time spent donning and doffing uniforms
and equipment each day. On June 9, 2010, an amended
complaint was filed which removed Local 215 as a party to
the suit and left only the officers, in their individual
capacities, as plaintiffs.
Teaneck subsequently filed a motion to dismiss, but
the motion was terminated when the District Court stayed the
case and directed the parties to mediation. Following an
unsuccessful mediation, the District Court held a pre-trial
conference, at which Teaneck moved under Federal Rule of
Civil Procedure 37(c)(1) to bar the officers from using any
damages calculations that were not disclosed during
discovery. To that point, the only calculation of damages the
officers had disclosed during the discovery process was a
spreadsheet prepared by one of the officers' wives, which
calculated individual officers' overtime hours based upon an
eight-hour day.
The spreadsheet identified the dates each officer
worked and those in which the officer was in uniform and not
7
in uniform. It assumed that each officer worked eight hours,
plus 20 minutes in muster time, plus 30 minutes daily
donning and doffing for uniformed officers and 15 minutes
daily donning and doffing for non-uniformed officers. Thus,
according to the officers, they were entitled to overtime
compensation for every day they worked 8 hours, regardless
of how many hours they worked in a workweek or a work
period. The officers conceded that they did not produce
anything in discovery that would provide a computation of
damages under a 40-hour theory, but defended that course of
action based upon their perception that the Agreement
required overtime payment based upon an eight-hour day and
not a 40-hour work week. After hearing argument, the
District Court concluded that there was "no reason why there
should be any permission to go beyond that which was
disclosed in discovery" and granted Teaneck's motion.
Thereafter, the parties filed cross-motions for summary
judgment. The District Court granted Teaneck's motion and
denied the officers' motion on December 28, 2012. In regards
to the officers' overtime claim, the Court concluded that
Teaneck qualified for an exemption to the general overtime
provisions of 29 U.S.C. § 207(a)1, pursuant to 29 U.S.C. §
1See 29 U.S.C. § 207(a)(1) (". . . no employer shall
employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than one
and one-half times the regular rate at which he is
employed.").
8
207(k) 2, and could, therefore, raise the overtime threshold for
its employees. The Court also noted that the officers had
failed to produce sufficient evidence of missed overtime pay.
Regarding muster time, the Court concluded that the
Agreement contemplated such time as part of the "normal
hours in any tour of duty" and was already a component of
the officers' salaries. Finally, because the officers had the
option of donning and doffing their uniforms and gear at
home, and the option to change at work benefitted the officers
and not Teaneck, the District Court regarded such activities as
preliminary and postliminary to the principal activity of
police work and, therefore, were non-compensable under the
FLSA. The District Court also noted that § 203(o) of the
FLSA, which excludes donning and doffing "from measured
working time under the Agreement," provided an additional
basis for denying the officers' donning and doffing claim.
The officers' timely notice of appeal to this Court
followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331 and 29 U.S.C. § 216(b). We have appellate jurisdiction
under 28 U.S.C. § 1291.
We exercise plenary review over a district court’s
grant of summary judgment. Madison v. Res. for Human
Dev., Inc., 233 F.3d 175, 180 (3d Cir. 2000). Summary
judgment will be proper "if the pleadings, depositions,
2
See 29 U.S.C. § 207(k) (increased employment
overtime thresholds for public agencies engaged in fire
protection or law enforcement activities).
9
answers to interrogatories . . . show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). In exercising such review, "[w]e view all evidence and
draw all inferences in the light most favorable to the non-
movant, affirming if no reasonable jury could find for the
non-movant." Madison, 233 F.3d at 180 (citing Whiteland
Woods, L.P. v. Township of West Whiteland, 193 F.3d 177,
180 (3d Cir. 1999)).
Our review of a district court's interpretation of the
FLSA is plenary. Id. (citing Stephens v. Kerrigan, 122 F.3d
171, 176 (3d Cir. 1997).
III. DISCUSSION
Appellants' challenge to the District Court's order is
based upon a series of alleged factual and legal errors.
Specifically, Appellants argue that the District Court erred in
finding that: (1) Teaneck qualified for an exemption to the
general overtime provisions, pursuant to § 207(k); (2)
Appellants failed to meet their burden in establishing
damages; (3) Appellants are compensated for muster time as a
component of their salaries; (4) donning and doffing police
uniforms and gear is non-compensable under the FLSA; and
(5) § 203(o) of the FLSA forecloses Appellants from seeking
compensation for donning and doffing. We will address each
argument in turn.
A. Overtime Compensation
1. The § 207(k) Exemption
10
Under the FLSA, employers are generally required to
pay employees at overtime rates for work in excess of forty
hours per workweek. 29 U.S.C. § 207(a)(1). Section 207(k),
however, contains a partial exemption from the general
overtime provisions, permitting public agencies to establish a
"work period" that lasts from seven to 28 days for employees
engaged in law enforcement or fire protection activities. 29
U.S.C. § 207(k). The FLSA’s interpretative regulations
define the term "work period" as "any established and
regularly recurring period of work." 29 C.F.R. § 553.224(a).
The exemption operates mainly "to soften the impact
of the FLSA’s overtime provisions on public employers . . .
[by] rais[ing] the average number of hours the employer can
require [employees] to work without triggering overtime
requirement[s]." O’Brien v. Town of Agawam, 350 F.3d 279,
290 (1st Cir. 2003); see also Lawrence v. City of Philadephia,
527 F.3d 299, 303 (3d Cir. 2008) (recognizing that § 207(k)
exempts certain public agencies from the overtime
requirements set forth in § 207(a)). It also "accommodates
the inherently unpredictable nature of firefighting and police
work by permitting employers to adopt work periods longer
than one week." Id. Before a public employer may qualify
for the § 207(k) exemption, however, two things must be true:
(1) "the employees at issue must be engaged in fire protection
or law enforcement within the meaning of the statute and (2)
the employer must have established a qualifying work
period." Calvao v. Town of Framingham, 599 F.3d 10, 14
(1st Cir. 2010) (citing Agawam, 350 F.3d at 290). The
employer bears the burden of proving that these conditions
are satisfied. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d
1141, 1143 (3d Cir. 1983) (noting that "[t]he burden of proof
is on the employer to establish an [FLSA] exemption"); see
11
also Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).
To meet this burden, the employer must demonstrate "that the
employee and/or employer come 'plainly and unmistakably'
within the exemption's terms." Lawrence, 527 F.3d at 310(observing that FLSA exemptions should be construed
narrowly and against the employer (citing Arnold, 361 U.S. at
392)).
In the instant case, neither party disputes that Teaneck
police officers are engaged in law enforcement within the
meaning of the FLSA; thus, the only issue before us is
whether Teaneck established a qualifying work period.
Appellants argue that it was error for the District Court to
conclude that Teaneck qualified for and established a valid §
207(k) work period because Teaneck never intended to adopt
the exemption. Teaneck, on the other hand, argues that an
employer's burden under § 207(k) does not require a
demonstration of intent. The point of contention between the
parties, namely, the means by which a law enforcement
employer may establish a valid § 207(k) work period, is a
matter of first impression for this Court.
This question presents an issue of statutory
interpretation. "As with any question of statutory
interpretation, our analysis begins with the plain language of
the statute." Jimenez v. Quarterman, 555 U.S. 113, 118
(2009). We note first that the text of § 207(k) does not
specify how an employer establishes a qualifying work
period. However, one thing is quite clear – nothing in the
language of the statute requires employers to express their
intent to qualify for or operate under the exemption. See 29
U.S.C. § 207(k) ("No public agency shall be deemed to have
violated subsection (a) of this section with respect to the
employment of any employee in . . . law enforcement
12
activities if [certain scheduling requirements are met]."). As
Teaneck correctly observes, the statute only requires the
existence of a qualifying work period. Nothing more. We
will, therefore, decline to adopt a rule that requires employers
to clear a hurdle not provided for in the statutory text.
Accordingly, we hold that employers seeking to qualify for
the § 207(k) exemption need not express an intent to qualify
for or operate under the exemption. Employers must only
meet the factual criteria set forth in § 207(k).
Appellants urge that two district court cases, O’Hara
v. Menino, 312 F. Supp. 2d 99 (D. Mass. 2004) and Ackley v.
Department of Corrections, 844 F. Supp. 680, 687 (D. Kan.
1994), support a different outcome. In O'Hara, a group of
police officers brought an action against the city in which
they worked, alleging violations of the FLSA regarding
overtime compensation. 312 F. Supp. 2d at 103. The district
court in that case concluded that the city was not entitled to
the § 207(k) exemption because it had neither adopted a
qualifying work period during the time at issue, nor was one
in place. Id. at 106. The court relied on language found in a
footnote in Agawam, which noted that employers were
required to "announce and take bona fide steps to implement
a qualifying work period" in order to take advantage of the §
207(k) exemption. Id. at 105 (citing Agawam, 350 F.3d at291 n.21).
Similarly, in Ackley, the district court held that the
defendant had not met its burden of proving that it adopted a
§ 207(k) workweek exemption. Ackley v. Dep't of Corrs.,
844 F. Supp. 680, 687 (D. Kan. 1994). The district court
relied on an interdepartmental memorandum pertaining to
overtime compensation, which stated that all non-exempt
employees were eligible for overtime compensation for hours
13
worked in excess of 40 hours in a work week. Id. Based
upon this memorandum, the district court concluded that the
employer compensated its employees in accordance with §
207(a). Id. The district court concluded that the employer
failed to produce any evidence that would contradict such a
conclusion, and made note that the employer's § 207(k)
argument appeared to have only been raised after suit was
filed to avoid liability. Id. Appellants rely on Ackley to
support their argument that Teaneck's Personnel Policies and
Procedures Manual (the "Manual"), as well as testimony from
Teaneck Police Department personnel, prove that the § 207(k)
exemption should not apply to Teaneck. Regarding the
Manual, Appellants contend that the document fails to
provide any indication that overtime payment for officers
would be in accordance with § 207(k). Regarding the
testimony, Appellants assert that not one agent of Teaneck
could even testify as to what the § 207(k) exemption was or
whether it had been adopted.
Neither O'Hara nor Ackley alter our analysis.
Appellants’ reliance on O’Hara, as well as the footnote citing
to a First Circuit decision, is unpersuasive and foreclosed by
more recent case law from the First Circuit, which rejects the
notion that an employer is required to expressly state its intent
to adopt a § 207(k) work period. See Calvao, 599 F.3d at 16("On the undisputed facts, the Town’s actions were sufficient
to establish a qualifying work period, despite the asserted lack
of notice to its employees."). The instant case can be further
distinguished from O'Hara because the employer in that case
never implemented a qualifying work period, which played a
significant role in the outcome of the case. Here, Appellants
do not argue that Teaneck's "Five and Two" and "Six and
Three" plans fail to meet the requirements of § 207(k). Their
14
only argument is that Teaneck never made its intent to adopt
the § 207(k) exemption known, which is not a requirement
under § 207(k).
Appellants’ reliance on Ackley is also foreclosed by
more recent case law from the Tenth Circuit, which rejects a
requirement that an employer expressly intend to adopt a §
207(k) exemption. See Spradling, 95 F.3d at 1505 (stating
that an employer may establish a § 207(k) work period either
by public declaration or by actually meeting the requirements
of the exemption). Appellants’ reliance on Ackley is further
tainted by factual differences between that case and the
instant case. There, the district court noted that the defendant
failed to produce any evidence that it defined a work period
as 28 days and had actually compensated its employees in
accordance with § 207(a). Here, the undisputed facts, as well
as current and former Agreements, reveal that officers work
and are paid in accordance with "established and regularly
recurring work periods" of either seven or nine days. Finally,
as concluded above, the relevant inquiry into whether an
employer has established a qualifying work period does not
include a subjective component. Nor is there a requirement
that employers make a public declaration or an express
statement that the work period has been or will be adopted.
Thus, Appellants' argument regarding the Manual and the
testimony of Teaneck personnel also fails.
Finally, we note that our holding here is in accordance
with that of our sister Circuits. All courts of appeals to
consider this issue have held that, in order for an employer to
qualify for the § 207(k) exemption, only a factual inquiry is
involved and no notice or declaration of intent is required on
the part of the employer. See, e.g., Calvao, 599 F.3d at 12(rejecting the plaintiffs’ argument that the Town was required
15
to notify affected employees before establishing a valid work
period under § 207(k)); Barefield v. Vill. of Winnetka, 81 F.3d
704, 710 (7th Cir. 1996) (noting that nothing in the language
of § 207(k) requires employers to express a "declaration of
intent" to qualify for the exemption – an employer need only
meet the factual criteria); Milner v. Hazelwood, 165 F.3d
1222, 1223 (8th Cir. 1999) (holding that FLSA police and
firefighters exemption need not be established by public
declaration); Spradling v. City of Tulsa, 95 F.3d 1492, 1505
(10th Cir. 1996) (stating that an employer may establish a §
207(k) work period either by public declaration or by actually
meeting the requirements of the exemption); Freeman v. City
of Mobile, 146 F.3d 1292, 1297 n.3 (11th Cir. 1998)
(rejecting Appellants’ argument that the City never
"intended" to avail itself of the § 207(k) exemption).
Turning to the merits of the instant appeal, the record
clearly demonstrates that Teaneck adopted a valid § 207(k)
work period. The Agreement provides, and Appellants
concede, that police officers work either a seven-day or a
nine-day period on a regularly recurring basis. Indeed,
Appellants fail to even assert now that they do not work a
seven-day or a nine-day schedule. Appellants' only
contention is that the exemption does not apply because
Teaneck did not intend to do so, which we now conclude is
irrelevant as to whether an employer meets the requirements
of § 207(k). Because neither party disputes that the Teaneck
police officers are engaged in law enforcement within the
meaning of the FLSA, and the record supports a finding that
the officers work either a seven-day or a nine-day schedule on
a regularly recurring basis, it was proper for the District Court
to conclude that Teaneck qualified for the § 207(k)
exemption.
16
2. Calculation of Overtime Damages
When an employee brings a claim under the FLSA, he
ordinarily bears "the burden of proving that he performed
work for which he was not properly compensated." Anderson
v. Mt. Clemens Pottery, 328 U.S. 680, 687 (1946), superseded
by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-
262, as recognized in IBP, Inc. v. Alvarez, 546 U.S. 21, 25-26
(2005); see also Reich v. Gateway Press, Inc., 13 F.3d 685,
701 (3d Cir. 1994). Because the FLSA requires every
employer to keep records of the "wages, hours, and other
conditions and practices" of its employees, 29 U.S.C. §
211(c), an employee easily discharges this burden by securing
the production of those records, Anderson, 328 U.S. at 687.
Such a burden becomes difficult to meet, however, where an
employer has not maintained its records. Martin v. Selker
Bros., Inc., 949 F.2d 1286, 1297 (3d Cir. 1991). Under those
circumstances, "[t]he burden of any consequent imprecision
[in an employee's calculation of damages] must be borne by
th[e] employer," id. (citing Anderson, 328 U.S. at 688), and
the employee will only be required to "submit sufficient
evidence from which violations of the [FLSA] and the
amount of an award may be reasonably inferred." Id. Once
this inference is created, the burden shifts to the employer to
rebut that inference. Id. (citation omitted).
Appellants argue that the District Court erroneously
applied the burden of proof standard when it concluded that
they failed to establish overtime damages. Appellants argue
that Teaneck’s records were so inaccurate as to render the
proper calculation of damages impossible and, therefore, the
burden of proof should have been shifted to Teaneck to rebut
Appellants' proffered evidence. Teaneck, on the other hand,
argues that it did maintain adequate employment records.
17
Teaneck points out, however, that the District Court's entry of
summary judgment resulted not from a failure to shift the
burden of proof, but from Appellants' failure to set forth any
evidence of alleged uncompensated overtime, whether it be
actual or estimated.
We agree with Teaneck's characterization of the
District Court's opinion. The District Court highlighted the
fact that the only evidence submitted by the officers of
alleged overtime damages was a spreadsheet, which based its
calculations on the assumption that overtime accrued for any
time worked beyond an eight-hour tour. As the District Court
correctly observed, such a framework does not provide any
basis for discerning whether the hours worked by each
individual officer exceeded the necessary threshold for
overtime under the FLSA, which defines overtime entitlement
based upon a work period and not a work day. See, e.g., 29
U.S.C. § 207(a)(1) ("no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless
such employee receives compensation for [the excess hours] .
. ."). The spreadsheet also fails to account for Teaneck's
exemption under § 207(k), which increases the number of
hours Teaneck officers may work in a work period before
triggering overtime requirements. See 29 C.F.R. § 553.230(c)
(overtime threshold of 43 hours for seven-day cycles and 55
hours for nine-day cycles). An estimation of damage, which
fails to set forth the proper method of calculation and does not
account for day-to-day differences in officer scheduling,
hardly provides a foundation for an inquiring court to
"reasonably infer[]" FLSA violations or the amount of an
award. Martin, 949 F.2d at 1297.
To be clear, the spreadsheet did indeed provide an
estimation of muster time and time spent donning and
18
doffing, but it failed to make clear whether each officer
worked the entirety of his or her tour or how that tour fit into
each officer's broader work period. Such a failure proves key
here. The uncontested facts demonstrate that: (1) a Tour
Commander handwrites each officer’s scheduled hours on a
"Daily Blotter", App. at 97; (2) the Daily Blotter records
regularly scheduled hours, as well as muster time, overtime
worked on a given day, sick time, vacation days or time due,
and any shift exchanges among officers, id.; (3) Teaneck
maintains, in addition to the Daily Blotter, records of the time
officers actually work overtime pursuant to the Agreement,
App. at 106; (4) when officers work overtime, they are
required to punch a timecard, after which approval is obtained
by a superior officer and eventually the Chief officer, id.; (5)
officers are permitted to "sign out" with the Tour Commander
during the last ten minutes of their eight hour and twenty
minute tour, but still receive credit for the full eight hours and
twenty minutes; and (6) Teaneck maintains overtime records,
which reflect the reason for the overtime, necessary approvals
for it, the method of compensation for it, and the overtime
both worked and paid pursuant to the Agreement, id.Despite all of the above information, Appellants
conceded that not a single officer was able to provide an
estimate of his or her uncompensated overtime damages or
time worked for which they believe they were not
compensated. App. at 116. They also conceded that they
were unable to provide any documentation that could be used
to refute the hours set forth in Teaneck's records. Id. Amidst
all of their concessions, Appellants do not argue that they
lacked access to the records maintained by Teaneck, nor are
19
there any allegations that Teaneck withheld those records. 3
Absent any evidence to support the officers' estimates of their
overtime damages, Appellants' calculations on the
spreadsheet become mere speculation, and are insufficient to
support the requisite inference necessary to meet their burden.
Martin, 949 F.2d at 1297 (the employee must "submit
sufficient evidence from which violations of the [FLSA] and
the amount of an award may be reasonably inferred.")
(emphasis added). Because Appellants had the burden of
proving that they performed work for which they were not
properly compensated, and failed to do so, the District Court
3
To be clear, our analysis does not reach the issue of
whether Teaneck's records were adequate for purposes of
recordkeeping requirements under the FLSA. Our analysis
merely notes that the parties do not dispute that certain
records were made and highlights the fact that none of those
records were used to support or refute estimates of overtime
damages.
20
properly granted summary judgment on their claim for
overtime damages.4
B. Muster Time
Appellants next argue that the District Court
incorrectly interpreted the Agreement in reaching the
conclusion that Teaneck officers are compensated for muster
time as a component of their base salaries. They contend that
the Agreement provides that officers are paid based upon an
eight-hour tour of duty and, therefore, the additional twenty
minutes of daily muster time constitutes time for which they
are uncompensated. Teaneck, on the other hand, argues that
officers are paid for muster time as a component of their base
salaries, and that officers have always been aware of this
arrangement. Teaneck points out that the parties have
4
Appellants dedicate a significant portion of their brief
to arguments in support of their position that Teaneck failed
to maintain its records. Based upon this allegation,
Appellants claim that the District Court should have "shifted
the burden of proof" to Teaneck to rebut their proffered
evidence of overtime damages. As our analysis sets forth
above, this argument misses the mark. Regardless of whether
Teaneck maintained its records or not, Appellants still had the
burden, albeit more relaxed in the latter situation, to prove
entitlement to overtime damages. See Martin, 949 F.2d at
1297 (noting that, where an employer has failed to maintain
adequate records, the employee will only be required to
"submit sufficient evidence from which violations of the
[FLSA] and the amount of an award may be reasonably
inferred."). Because Appellants failed to set forth any
evidence that would assist in even estimating damages,
Appellants have not met their burden under either standard.
21
negotiated terms of employment and compensation for years
through collective bargaining and it would make little sense
for the officers to repeatedly enter into an agreement under
which they performed uncompensated work. This dispute, as
the District Court correctly observed, presents a matter of
contract interpretation.
Although federal law governs the construction of a
collective bargaining agreement ("CBA"), traditional rules of
contract interpretation apply when not inconsistent with
federal labor law. Teamsters Indus. Emps. Welfare Fund v.
Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir.
1993). "[W]here a court is called on to interpret a [CBA] it is
generally appropriate for the court to look beyond the face of
the [CBA]." Se. Pennsylvania Transp. Auth. v. Bhd. of R.R.
Signalmen, 882 F.2d 778, 784 (3d Cir. 1989). The Supreme
Court has affirmed this method of interpretation because:
A [CBA] is not an ordinary
contract for the purchase of goods
and services, nor is it governed by
the same old common-law
concepts which control such
private contracts. It is a
generalized code to govern a
myriad of cases which the
draftsman cannot wholly
anticipate. The collective
agreement covers the whole
employment relationship. It calls
into being a new common law –
the common law of a particular
industry.
22
Transp.-Commc'n Emps. Union v. Union Pac. R.R., 385 U.S.
157, 161 (1966) (citations and internal quotation marks
omitted). Thus, when interpreting such agreements, "it is
necessary to consider the scope of other related [CBAs], as
well as practice, usage and custom pertaining to all such
agreements." Id.Appellants set forth a number of arguments to support
their position that muster time constitutes time for which
officers are uncompensated. None of those arguments
provide any basis upon which we can rely in interpreting the
Agreement and the employment relationship between the
parties "as a whole." For example, Appellants direct our
attention to a section of the Agreement that states that officers
are required to work an average of thirty-nine and a quarter
hours per week over a calendar year cycle. Appellants claim
that it is "mathematically impossible to arrive at an eight-hour
and twenty-minute tour and still work an average of thirty
nine and a quarter hours per week." We find this argument to
be flawed. The key language here is that officers work an
average of thirty-nine and a quarter hours per week over a
calendar year cycle. The implication underlying this
language is that some weekly hours will exceed that average
and others will not. Appellants concede that officers have
been able to leave prior to the time indicated on the Daily
Blotter and that they often do not actually attend twenty
minutes of muster time per day. Thus, it would appear that
the Agreement accounts for early release, as well as the
possibility of officers having to stay for a few extra minutes.
Regardless, Appellants' calculations provide no basis for this
Court to conclude, on the whole, that muster time is not
compensated as a component of the officers' base salaries.
23
The same can be said for Appellants' next argument.
Appellants claim that the Agreement provides for overtime
based on an eight-hour day, rather than an eight-hour and
twenty-minute day. Appellants point out that the Agreement
provides for full overtime compensation once officers reach
the overtime threshold; thus, it defies reason that Teaneck
would pay twice for time it already deems compensated.
Again, this argument fails to prove one way or another
whether muster time is compensated as a component of the
officers' base salaries. The mere fact that the parties may
have negotiated a generous overtime compensation package
once a threshold timeframe is met provides little assistance in
analyzing the question of muster time compensation.
Finally, Appellants direct our attention to two cases
which they believe support their position that muster time
should be compensated separately from their regular work
schedules. See O’Brien v. Town of Agawam, 350 F.3d 279,
298 (1st Cir. 2003) (concluding that roll-call pay had to be
included in officers' weekly hours worked under the FLSA
and compensated as overtime since it pushed the officers'
weekly hours worked over the forty-hour threshold);
Barvinchak v. Ind. Reg’l Med. Ctr., 2007 U.S. Dist. LEXIS
72805 (W.D. Pa. Sept. 28, 2007) (analyzing the viability of a
claim for straight time compensation under the FLSA where
the plaintiff has worked overtime under § 207). However,
neither of those cases align factually with that of the instant
case, nor does the same legal standard apply. The Court in
O'Brien, for example, found that the employer failed to
establish a qualifying work period under § 207(k). As a
result, the employer was required to adhere to overtime
requirements set forth in § 207(a)(1), which required that it
pay overtime once an officer’s weekly hours exceeded the 40-
24
hour threshold. O'Brien, 350 F.3d at 297. Here, Teaneck has
established its eligibility for the § 207(k) exemption, so the
overtime threshold for Teaneck officers is 43 hours for
officers under the seven-day work plan and 55 hours for those
under the nine-day plan. See 29 C.F.R. § 553.230(c). Twenty
minutes of daily muster time for Teaneck officers, regardless
of whether they work a "Five and Two" plan or the "Six and
Three" plan, does not push them over the applicable overtime
thresholds as it did in O'Brien. Appellants' reliance on
Barvinchak is similarly flawed as the Court's analysis was
also based upon an overtime threshold of forty hours.
Turning to the Agreement in the instant matter, we
think it is clear that muster time was contemplated as a
component of the officers' base salaries. Article VII of the
Agreement sets forth that "[a] normal tour of duty shall be an
eight (8) hour time division of the day for the purposes of
assignment." See App. at 96 (emphasis added). That same
section goes on to state that "[e]mployees will report for duty
ten (10) minutes prior to the start of their tour . . . and . . . will
be dismissed from duty ten (10) minutes after the end of their
tour." Id. The only reasonable interpretation of this language
is that an officer's work schedule, on any given day, is eight
hours and twenty minutes. Such a reading would therefore
encompass the tour of duty, the assignment, and pre- and
post-tour muster time. This reading of the Agreement lends
itself to the conclusion that muster time is a required
component of an officer's daily tour schedule, a fact that both
parties were aware of at the time employment-related
negotiations took place.
We note that our conclusion is reinforced by the
parties' extensive history of collective-bargaining
negotiations, which began in 1979 and continued every few
25
years thereafter. There is no indication that muster time has
ever been treated as a separate entity from an officer’s normal
tour of duty, or that it was ever compensated separately. Nor
is there any indication that the officers disputed the
arrangement. Taking the Agreement as a whole, combined
with the actions of both parties over the course of thirty years,
we conclude that Teaneck officers are compensated for
muster time as a component of their negotiated salaries.
Accordingly, we will affirm the District Court's grant of
summary judgment as it relates to Appellants' claim regarding
muster time.
C. Donning and Doffing
Appellants assert various arguments regarding their
donning and doffing claim, including allegations that the
District Court: (1) failed to consider that their uniforms are
necessary to the principal work performed by the officers; (2)
erred in holding that the uniforms are not for the benefit of
the employer; (3) erred in concluding that § 203(o) of the
FLSA applied to police uniforms; and (4) failed to consider
their claim regarding safety equipment. The arguments set
forth by Appellants essentially claim that two exclusions to
the wage and hour requirements, the Portal-to-Portal Act of
26
19475 and § 203(o), do not apply to their daily donning and
doffing. Because the § 203(o) exclusion speaks directly to
the issue of clothes-changing time where a CBA governs the
employment relationship between an employer and its
employees, and a CBA governs the relationship between
Teaneck and its officers, that is where we will begin our
analysis.
Section 203(o) of the FLSA sets forth that, when
determining hours worked for purposes of the wage and hour
laws:
[T]here shall be excluded any
time spent in changing clothes or
washing at the beginning or end
of each workday which was
excluded from measured working
time during the week involved by
the express terms of or by custom
or practice under a bona fide
collective-bargaining agreement
applicable to the particular
employee.
5
The Portal-to-Portal Act of 1947 relieves employers
of responsibility for compensating employees for activities
which are preliminary or postliminary to the principal activity
or activities of a given job. See 29 U.S.C. § 254(a)(2);
Alvarez, 546 U.S. at 27. Preliminary and postliminary
activities are compensable under the FLSA only where "those
activities are an integral and indispensable part of the
principal activities for which covered workmen are employed
and are not specifically excluded by [§ 254(a)(1)]." Steiner v.
Mitchell, 350 U.S. 247, 256 (1956).
27
29 U.S.C. § 203(o); Turner v. City of Philadelphia, 262 F.3d
222, 224-25 (3d Cir. 2001). Essentially, where a CBA
governs the relationship between an employer and its
employees, employees will be foreclosed from seeking
compensation for donning and doffing if the following are
true: (1) donning and doffing was excluded from measured
working time by the express terms, or by custom or practice,
of a CBA; and (2) the donning and doffing involves clothes.
See 29 U.S.C. § 203(o). We will address each element in
turn.
1. The Agreement
We note first that the express terms of the Agreement
in this case are silent as to whether Teaneck officers are
entitled to compensation for time spent donning and doffing.
We, therefore, must determine whether there is a "custom or
practice" under the Agreement of excluding change time from
compensable hours worked.
We confronted this issue head on in Turner v. City of
Philadelphia. In that case, 200 current and former corrections
officers brought a class action suit against the City of
Philadelphia and the City Prisons Commissioner seeking
overtime compensation under the FLSA for the time they
spent changing into and out of their uniforms. 262 F.3d at
224. The express terms of the applicable CBA between the
parties did not mention an exclusion of change time from
hours worked and, therefore, the dispositive issue was
whether there was a "custom or practice under a bona fide
28
collective-bargaining agreement" in the corrections system of
excluding change time from compensable hours worked. Id.
at 225. We concluded that there was. Id. at 227. In reaching
this conclusion, we highlighted the district court’s reliance on
the following undisputed facts: (1) the employer had not
compensated corrections officers for change time for over
thirty years; (2) every agreement between the officers and the
employer had been silent as to compensation for uniform
change time; (3) the union never made any requests for a
uniform maintenance allowance or overtime compensation
for mandatory pre-shift roll calls; and (4) the union never
filed a grievance or demand for arbitration based on a lack of
compensation for change time. Id. at 225. Because the facts
established the officers’ long-standing acquiescence to a
"custom or practice" of the non-compensability of change
time, we affirmed the district court’s conclusion. Id. at 227.
The instant case is factually similar to Turner. The
record demonstrates that the relationship between Teaneck
and its police officers has been governed by CBAs for the
past thirty years. App. at 88. During that time, and over the
course of various periods of negotiation, none of the
agreements have compensated police officers for change
time. App. at 116. The record makes clear that the police
officers' unions neither requested compensation for change
time during those negotiations, nor did they even consider
raising the issue. Id. Indeed, Appellants concede that
Teaneck officers were aware that Teaneck had a policy of not
providing additional compensation for donning and doffing
and the unions never even filed a grievance or demand for
arbitration based on such non-compensability. Id. Those
facts certainly establish a longstanding acquiescence on the
part of the officers and the unions to a "custom or practice" of
29
non-compensability of change time. Because the facts
indicate that there is a custom or practice under a bona fide
CBA of not compensating Teaneck officers for time spent
donning and doffing, the first element of § 203(o) applies.
2. Time Spent "Changing Clothes"
The Supreme Court recently defined the term
"clothes," as used in § 203(o), as "items that are both
designed and used to cover the body and are commonly
regarded as articles of dress." Sandifer v. United States Steel
Corp., 134 S. Ct. 870, 877 (2014). While the Court noted that
its definition clearly "leaves room for distinguishing between
clothes and wearable items that are not clothes, such as some
equipment and devices," id. at 878, it cautioned that its
"construction of 'clothes' does not exclude all objects that
could conceivably be characterized as equipment," id. at 878
n.6.
Where a court assesses the compensability of
particular items for purposes of § 203(o), and the items in
question fall within the above-stated definition of "clothes,"
time spent changing into and out of those items would be
non-compensable. See 29 U.S.C. § 203(o). The analysis
becomes more challenging where some items fall within the
definition and others do not. Mindful of the onerous task that
would face federal judges when "separating the minutes spent
clothes-changing and washing from the minutes devoted to
other activities," the Supreme Court set forth the following
guidelines:
30
The question for courts is whether
the period at issue can, on the
whole, be fairly characterized as
'time spent in changing clothes or
washing.' If an employee devotes
the vast majority of the time in
question to putting on and off
equipment or other nonclothes
items . . . the entire period would
not qualify as 'time spent in
changing clothes' under § 203(o),
even if some clothes items were
donned and doffed as well. But if
the vast majority of the time is
spent in donning and doffing
'clothes' as we have defined that
term, the entire period qualifies,
and the time spent putting on and
off other items need not be
subtracted.
Sandifer, 134 S. Ct. at 881 (emphasis in original).
Applying the foregoing principles to the facts of this
case, we hold that Appellants' donning and doffing of the
uniforms and equipment at issue qualifies as "changing
clothes" within the meaning of § 203(o). Appellants have
pointed to the following items for Uniform Division officers:
a uniform hat; uniform jacket; shirts; pants; dress blouse;
leather gear; shoes/boots; socks; tie; winter/summer uniform;
31
sweaters; gloves; rainwear; bullet resistant vest; nightstick;
handcuffs; nameplate; medals; awards; Shield and
Department I.D. card; notebook and pen; firearm and
ammunition; whistle; baton; watch; pepper spray (when
issued); and a flashlight.6 The first fourteen items clearly fit
within the Supreme Court's definition of "clothes" set forth
above: "they are both designed and used to cover the body
and are commonly regarded as articles of dress." 7 See id. at
879. The last thirteen items, by contrast, do not satisfy the
standard. We recognize that the number in each category is
close, but we cannot say that the "vast majority of the time in
question" is spent picking up, for example, a nightstick,
handcuffs, nameplate, medals, awards, and a flashlight, or
maintaining a department identification card and notebook
and pen. Clearly, picking up and maintaining those items is
not the same as donning and doffing the clothing at issue
here. Accordingly, the vast majority of the time in question is
spent donning and doffing "clothes" for purposes of § 203(o).
Therefore, the entire period qualifies as time spent changing
clothes or washing, and the time spent picking up or
maintaining the other items need not be subtracted.
6
Non-Uniform Division officers must have a
conforming uniform available at all times and are subject to
other requirements regarding their business garb, the majority
of which consists of items that fit plainly within the definition
of "clothes." App. at 110-111.
7
Neither the District Court nor the parties to the case
define or describe "leather gear." We presume it to mean
holsters, belts, straps, boots, gloves and/or jackets, most of
which are "clothes."
32
In sum, we conclude that there is a custom or practice
under a bona fide CBA of not compensating Teaneck officers
for time spent donning and doffing, and that the vast majority
of the time in question is spent changing "clothes," as defined
by the Supreme Court. Because both elements necessary for
application of the § 203(o) exclusion apply to the instant case,
the Teaneck officers are precluded from seeking
compensation for time spent donning and doffing their
uniforms and safety equipment.8 Accordingly, we will affirm
the District Court's grant of summary judgment as it relates to
Appellants' donning and doffing claim.
IV. CONCLUSION
For the reasons set forth above, we will affirm the
order of the District Court.
8
Because the § 203(o) exclusion applies, we need not
address Appellants' argument that the remaining exclusion,
regarding the preliminary and postliminary activities, does
not apply.
33