Robert Bartlett v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-3180 & 19-3183
ARMANDO CHAGOYA, et al.,
Plaintiffs-Appellants,
and
ROBERT BARTLETT, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 18-cv-6468 & 14-cv-7225 — Charles P. Kocoras, Judge.
____________________
ARGUED OCTOBER 28, 2020 — DECIDED MARCH 25, 2021
____________________
Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.
RIPPLE, Circuit Judge. Current and former members of the
Chicago Police Department’s Special Weapons and Tactics
2 Nos. 19-3180 & 19-3183
1
(“SWAT”) Unit brought actions on behalf of themselves and
2
similarly situated SWAT operators against their employer,
the City of Chicago (“the City”). They alleged violations of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b),
the Illinois Minimum Wage Law (“IMWL”), 820 ILCS 105/1
et seq., and the Illinois Wage Payment and Collection Act
(“IWPCA”), 820 ILCS 115/1 et seq.
In their complaint, the operators related that when they
take their SWAT equipment home, they must store some of
that equipment inside their residences; it cannot be left in
their vehicles. The operators sought compensation for the
off-duty time required to transport, load, unload, and store
their gear inside of their residences.
The City moved for summary judgment on all claims,
1 This is a consolidated appeal of Bartlett, et al. v. City of Chicago,
14-cv-07225 (N.D. Ill.), and Chagoya, et al. v. City of Chicago, 18-cv-06468
(N.D. Ill.). The Bartlett plaintiffs filed suit on September 16, 2014, seeking
compensation for time spent commuting between home and work, and
time spent loading, unloading, and securing their equipment inside their
homes. In 2018, the parties filed cross-motions for summary judgment.
While the Bartlett summary judgment motions were pending, the Chago-
ya plaintiffs filed their complaint alleging identical claims on September
21, 2018. Due to the relatedness of the two cases, Chagoya was reassigned
to the judge who had been presiding over the Bartlett litigation. On Oc-
tober 1, 2019, the district court granted summary judgment to the City on
all of the plaintiffs’ claims in Bartlett. Because Chagoya presented identical
claims, the district court also entered an order terminating Chagoya.
2 “Operators” is a term employed by the Chicago Police Department for
police officers with the rank of patrolman who are members of the
SWAT Unit. Throughout this opinion, we will refer to them as “opera-
tors” and as “officers.”
Nos. 19-3180 & 19-3183 3
and the operators filed cross-motions for summary judg-
ment on the FLSA and IMWL claims. The district court
granted summary judgment in favor of the City, and the op-
3
erators filed a timely appeal. We now hold that the district
court correctly determined that the activity of transporting,
loading and unloading equipment to and from residences,
and securing equipment inside residences is not integral and
indispensable to the operators’ principal activity. We there-
fore affirm the judgments of the district court.
I
BACKGROUND
A.
The plaintiffs are current and former officers assigned to
the Chicago Police Department’s SWAT Unit. The SWAT
Unit became a full-time unit of the Chicago Police Depart-
ment (“CPD”) in 2005 and is based at the Homan Square fa-
cility on the west side of Chicago. The SWAT Unit consists of
a Commanding Officer, an Assistant Commanding Officer,
supervisors, operators, and support personnel. The Com-
manding Officer reports directly to the CPD’s Deputy Chief
of Special Functions. The SWAT Unit is organized into four
squads of operators; each squad is supervised by at least one
sergeant.
The SWAT Unit’s mission is a special and dangerous one.
It provides a tactical response to critical incidents beyond the
capabilities of normal police response, such as hostage situa-
3 The jurisdiction of the district court is premised on 28 U.S.C. §§ 1331,
1337, 1367. Our jurisdiction is secure under 28 U.S.C. § 1291.
4 Nos. 19-3180 & 19-3183
tions, barricaded or suicidal subjects, sniper or active shooter
situations, and terrorism-related incidents. SWAT operators
therefore must carry specialized gear and weaponry. Their
equipment includes ballistic entry vests, a radio, headset, gas
mask, night-vision goggles, helmet, a Glock 9mm handgun,
and an M4 carbine rifle. Some SWAT operators perform
unique roles, such as sniper, breacher, or medic, and must
carry additional gear to perform these duties.
The SWAT Unit maintains a rotation schedule. Two
squads are assigned to work in the Special Operations Re-
sponse Time (“SORT”) cars, while the other two squads en-
gage in training. Every two weeks, the squads switch as-
signments. While on a SORT-car cycle, an operator reports
for duty at Homan Square at the beginning of the shift. Op-
erators are first given fifteen minutes to transfer their weap-
ons and gear into their assigned SORT car before reporting
inside for roll call. Operators are also given at least fifteen
minutes prior to the end of their shift to transfer and secure
their weapons and gear out of their SORT cars. These trans-
fers are considered “on the clock,” and the officers are com-
pensated for the time expended on this transfer.
In the event of a critical incident, on-duty SWAT opera-
tors are the first called to respond. If additional operators are
needed, an off-duty call-out occurs. Off-duty operators are
contacted by phone and email. If an operator is available and
willing to respond, the operator responds to the call-out. As
soon as an off-duty operator agrees to respond, the operator
is considered “on duty” and is compensated starting from
the time of the off-duty call-out. This compensation covers
the time spent loading equipment stored in the operator’s
home to the operator’s vehicle, traveling to the incident site,
Nos. 19-3180 & 19-3183 5
traveling back to Homan Square after the incident is re-
solved, and attending a debriefing session at Homan Square.
Operators are also given an additional ninety minutes to two
hours of overtime compensation to organize and clean their
gear and weapons.
For the first several years of the SWAT Unit’s full-time
existence, operators were not authorized to take their rifles
home while off duty. Rather, they stored their rifles on a
SWAT weapons truck, which was kept at the Homan Square
facility. In late 2008 and early 2009, members of the SWAT
Unit asked that operators be permitted to take their weapons
home during off-duty hours. Post-incident reports in early
2009 stated that “SWAT operators responding from home
are currently not allowed to transport their rifles with
them,” which “causes great delays in intelligence gathering
and overwatch capabilities that is needed on all SWAT
4
jobs.” Another memo indicated that SWAT operators re-
sponding from home in personal vehicles faced heavy
rush-hour traffic, taking up to ninety minutes to respond.
One proposed solution was to allow all SWAT operators to
“have take-home cars with the ability to transport their rifles
to and from work” as it “would reduce response time to a
5
SWAT job to less than 60 minutes.” On March 16, 2009, the
CPD issued Special Functions Group Unit Special Order
09-01, which authorized and directed SWAT operators “to
transport their Department issued carbines and/or sniper ri-
fles to and from home … to maintain a constant state of pre-
4 R.193-5 at 2.
5 Id.6 Nos. 19-3180 & 19-3183
paredness and the ability to readily respond to critical inci-
6
dents.” Special Order 09-01 prohibited operators who
transport their rifles from storing their rifles in a personal or
department vehicle at any time.
The parties dispute whether Special Order 09-01 required
SWAT operators to take their rifles home or whether they
still were allowed to keep their rifles at Homan Square. On
7
April 1, 2009, Lieutenant Mark Marianovich sent out re-
vised Standard Operating Procedures, which “mandate[d]
that its members keep their equipment in a state of readiness
8
to respond quickly to a critical incident.” The Standard Op-
erating Procedures also detailed the off-hours vehicle use
policies and procedures. CPD assigned and issued some ve-
hicles for use beyond normal hours to give SWAT operators
the ability to respond to off-hours critical incidents. The goal
was for SWAT operators “to be able to respond to the scene
9
of a critical incident within one hour of the callout.” Addi-
tionally, the policy placed restrictions on the use of the de-
partment vehicle. For example, the vehicles were only to be
used for travel to and from work and for critical incident re-
sponse from home; they were not to be used for personal or
other family business. An April 2009 report observed that
“[a]lthough many operators were responding to the job in
6 R.193-8 at 1.
7The appellate briefs refer to Mr. Marianovich as “Captain.” In the text,
we use the rank at the time of his deposition, “Lieutenant.”
8 R.193-9 at 7.
9 Id. at 15.
Nos. 19-3180 & 19-3183 7
their personal vehicles, they responded to the scene with
10
their rifles and equipment already in their possession.”
Additionally, the operators “did not have to wait until the
trucks arrived on scene in order to quickly deploy to their
11
positions.”
In December 2010, CPD issued all SWAT operators
take-home vehicles. Lieutenant Raymond Hamilton instruct-
ed operators who were issued take-home vehicles to move
their equipment kits and rifles to their assigned vehicles.
With take-home vehicles, the operators were no longer au-
thorized to store their personal equipment kits inside the
equipment room or to leave their CPD rifles on the weapons
truck unless the operator was on furlough or out of town.
Sergeants had the responsibility to ensure strict adherence to
these directives. Lieutenant Hamilton further reiterated that
equipment must be secured and that weapons were never to
be left in their vehicles while off duty.
If an operator wanted an exception to the prohibition
against storing rifles on the weapons truck, the officer had to
secure the permission of a lieutenant. Plaintiff Jesus Cano
testified that Lieutenant Marianovich permitted him to store
his rifle at Homan Square while off-duty because he had
small children at home and did not have a safe in which to
store his rifle. If Officer Cano responded to an off-duty
call-out, he would meet the weapons truck at the incident
site or first pick up his weapon directly from Homan Square.
Lieutenant Tom Lamb testified that he was aware of officers
10 R.193-11 at 1.
11 Id.8 Nos. 19-3180 & 19-3183
who stored their equipment at Homan Square and of at least
five operators who stored their rifles on the weapons truck
that went to each call-out.
In March 2011, CPD headquarters recalled many de-
partment vehicles that it had assigned previously to SWAT
officers, leaving the SWAT Unit with an insufficient number
of vehicles to permit each officer to use one for commuting.
This situation resurrected the issue of where operators rely-
ing on personal vehicles could store their gear and rifles.
Lieutenant Lamb expressed concern that, without having
their weapons and gear with them, operators would have to
drive all the way to Homan Square to get their equipment
before meeting at the incident site or would have to wait at
the incident site until the weapons truck arrived with their
rifles. On March 21, 2011, Lieutenant Lamb emailed the
SWAT Unit:
No equipment will be stored in the SWAT
cage, cleaning room, or equipment room. Per
SOP each operator must have their [sic]
equipment with them [sic] in a state of readi-
ness. If an operator has reasonable issues with
rifle storage then they [sic] may meet with Lt.
Marianovich to discuss options. Please ensure
that all bags are moved out of the cleaning
12
room.
On May 2, 2016, Deputy Chief Steve Georgas reiterated
the off-duty firearms and equipment policies. He stated that
“[c]ontinuing past practice, SWAT members [we]re not re-
12 R.193-18.
Nos. 19-3180 & 19-3183 9
quired to store [their equipment] … in their personal resi-
dences,” were not required to transport their equipment to
and from their personal residences and work, and storage
lockers at Homan Square were provided to store their
13
equipment while off duty. Operators, however, who chose
to transport their rifles and SWAT gear home after their
shifts were required to unload their firearms, radio, and
night-vision goggles from their vehicles and store those
items inside their residences. All other SWAT equipment
could be left inside the locked vehicle, so long as the equip-
ment could not be seen from outside the vehicle. SWAT op-
erators stated that it took approximately fifteen minutes to
load and unload their gear and weapons from their vehicles
to their residences.
The operators believed that Deputy Chief Georgas’s
memo was a “litigation tactic,” and that the operators did
not actually have a “choice” of where to store their weapons
14
and equipment. They therefore sent a memo on May 4,
2017, to Lieutenant Lamb informing him and the CPD of
their intention to “stor[e] their SWAT equipment, weapons
and gear in their lockers and on SWAT trucks at Homan
15
Square while off-duty.” The operators acknowledged,
however, that they could not possibly maintain the constant
state of readiness required of them if they stored their weap-
ons and equipment at Homan Square.
13 R.181-9 at 2.
14 R.194-8 at 1; R.188 at 2–5.
15 R.194-8.
10 Nos. 19-3180 & 19-3183
On May 26, 2017, the CPD issued each SWAT operator a
take-home vehicle. On September 22, 2017, Lieutenant Lamb
released a memo reiterating that an operator who accepts a
Department vehicle must transport CPD-issued SWAT fire-
arms and gear in the Department vehicle at the end of the
shift. SWAT operators, however, were permitted to store
SWAT equipment at Homan Square upon request, which
would be considered on a case-by-case basis.
B.
On September 16, 2014, Officers Robert Bartlett and Pat-
rick Leydon, individually and on behalf of similarly situated
SWAT operators, filed a complaint against the City of Chi-
cago. The complaint alleged violations of the FLSA, the
IMWL, and the IWPCA. In their initial complaint, the Bartlett
plaintiffs sought compensation for the time spent commut-
ing between home and work in their personal vehicles be-
cause during that commute they were transporting SWAT
equipment and were not permitted to leave their vehicles
unattended or carry civilian passengers. The Bartlett plain-
tiffs later amended their complaint, adding an additional
claim for time spent loading and unloading their equipment
and securing their equipment inside their residences. Their
final complaint added claims for time spent commuting in
department-issued vehicles, as opposed to solely personal
vehicles. On September 21, 2018, Armando Chagoya and
twenty-two other SWAT operators filed a complaint alleging
the same violations. Due to the relatedness of the two cases,
Chagoya was reassigned to the judge presiding over the Bart-
lett litigation.
In Bartlett, the City moved for summary judgment on all
three claims, and the operators moved for summary judg-
Nos. 19-3180 & 19-3183 11
ment on the FLSA and IMWL claims. The City took the view
that the off-duty driving and transportation of SWAT weap-
ons and gear during normal commutes between home and
work were not tasks integral and indispensable to the SWAT
operators’ principal activities. The City maintained that
SWAT operators were permitted to store and have stored
their SWAT equipment at Homan Square and, without tak-
ing their gear home, were still able to perform their principal
activities. Finally, the City contended that there was no
promise, agreement, or practice of compensating operators
for the time spent during a normal commute or for loading
and unloading equipment. On the FLSA and IMWL claims,
the operators contended that transporting and storing their
SWAT equipment while off duty was integral and indispen-
sable to their ability to maintain “mission readiness” and di-
rectly respond to critical incidents. As such, carrying equip-
ment from their residences to their vehicles was a compen-
sable activity that marked the start of their workday. Under
the continuous workday rule, they reasoned, the workday
would extend to when they returned home and unloaded
and secured equipment inside their residences.
The district court agreed with the City. It concluded that
the time spent loading and transporting equipment between
an operator’s residence and vehicle was not compensable
under the FLSA because it was “two steps removed” from
16
the principal activity of responding to critical incidents.
Although requiring the operators to bring their rifles and
equipment home in case of an off-duty call-out may have
16 R.257 at 12.
12 Nos. 19-3180 & 19-3183
“support[ed] the Plaintiffs’ ability to respond to critical inci-
dents,” these activities were not “integral and indispensa-
17
ble” to the officers’ principal activities. In support of its
view, the court pointed out “that SWAT operators have been
able to perform off-duty critical response efforts without
having their gear at home, meaning that such a practice is
18
not indispensable.” Because “the transportation, load-
ing/unloading, and storage of gear is not integral and indis-
pensable to a SWAT operator’s principal activity, … [t]he
practical effect of granting the Plaintiffs’ requested relief
would be to compensate them for the time spent commuting
19
to and from work.” Compensating the officers for this ac-
tivity, the court further noted, would be contrary to the Por-
tal-to-Portal Act, which explicitly excepted from compensa-
tion an employee’s commute time. See 29 U.S.C. § 254(a).
The district court then turned to the operators’ IWPCA
claim. To prevail on this claim, the operators had to establish
that they were owed compensation from the City under an
employment agreement. To fulfill this requirement, the op-
erators pointed to their employment agreement, which pro-
vided for overtime compensation. The City replied that the
overtime compensation provision was limited to “approved
overtime.” The operators then relied upon, in the alternative,
the City’s requirement that the operators transport and store
their SWAT equipment as the agreement that binds the City
17 Id. at 12.
18 Id. at 13.
19 Id.Nos. 19-3180 & 19-3183 13
under the IWPCA. The City replied that there was no
agreement between the parties that the operators would be
compensated for the transportation and loading/unloading
of equipment between their vehicles and residences. The
City also noted that it consistently had denied the operators’
requests for such overtime pay.
The district court held that “the record and the existence
of this lawsuit clearly indicate[d that] the City did not agree
to pay the Plaintiffs overtime for the transportation and stor-
age of their gear,” and granted summary judgment in favor
20
of the City on the IWPCA claim.
On October 1, 2019, the district court entered summary
judgment for the City in Bartlett. Subsequently, it entered
judgment in favor of the City in Chagoya. The parties timely
filed a joint notice of appeal.
II
DISCUSSION
We review a district court’s grant of summary judgment
de novo. Gill v. Scholz, 962 F.3d 360, 363 (7th Cir. 2020).
“Where, as here, both parties filed cross-motions for sum-
mary judgment, all reasonable inferences are drawn in favor
of the party against whom the motion was granted.” Id.Summary judgment is proper if the pleadings, the discovery
and disclosure materials on file, and any affidavits show
“that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). We begin with the operators’ FLSA and IMWL
20 Id. at 15.
14 Nos. 19-3180 & 19-3183
21
claims, which we consider together. We then will consider
separately the operators’ IWPCA claim.
A.
The operators first contend that the off-duty time spent
transporting, loading and unloading SWAT equipment to
and from their vehicles, and securing SWAT equipment in-
side their residences is compensable time because these ac-
tivities are integral and indispensable to carrying out their
principal activities. Resolution of this issue requires that we
construe and apply the provisions of the FLSA. The Supreme
Court and the courts of appeals have interpreted the text of
this statute on many occasions, and Congress has amended
the text, at least partially because of that judicial interpreta-
tion. A brief examination of that judicial-legislative dialogue
will be helpful to our analysis.
1.
The FLSA, enacted in 1938, established minimum wage
and overtime compensation standards for hours worked in
excess of forty hours in each workweek. 29 U.S.C. § 201 et
seq. As the Supreme Court has noted, the legislative history
indicates that “the prime purpose of the [FLSA] was to aid
the unprotected, unorganized and lowest paid of the na-
tion’s working population” in recognition of the unequal
bargaining power of these employees to secure a minimum
21 Because the IMWL parallels the language of the FLSA, the parties
agree that the same standard applies to the operators’ claims under the
FLSA and the IMWL. Accordingly, we analyze the FLSA and IMWL
claims together. See, e.g., Urnikis-Negro v. Am. Fam. Prop. Servs., 616 F.3d
665, 672 n.3 (7th Cir. 2010).
Nos. 19-3180 & 19-3183 15
subsistence wage. Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,
706–07 n.18 (1945). An employer who does not comply with
the Act faces liability for backpay, liquidated damages, and
attorney’s fees. 29 U.S.C. §§ 215–16.
The original text of the FLSA left certain key provisions
undefined; it did not define “work” or “workweek.” The
Supreme Court initially interpreted those terms broadly. In
Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,
321 U.S. 590 (1944), the Court defined “work” as “physical or
mental exertion (whether burdensome or not) controlled or
required by the employer and pursued necessarily and pri-
marily for the benefit of the employer and his business.” Id.
at 598. Shortly afterward, the Supreme Court “clarified that
‘exertion’ was not … necessary for an activity to constitute
‘work’ under the FLSA,” noting that an employer could hire
an employee “to do nothing, or to do nothing but wait for
something to happen.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25
(2005) (quoting Armour & Co. v. Wantock, 323 U.S. 126, 133
(1944)). In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680(1946), the Court defined “the statutory workweek [as] all
time during which an employee is necessarily required to be
on the employer’s premises, on duty or at a prescribed
workplace.” Id. at 690–91. Thus, under this broad reading,
the Supreme Court had held that “the time necessarily spent
by the employees in walking to work on the employer’s
premises, following the punching of the time clocks,” Ander-
son, 328 U.S. at 691, and that time spent by iron ore miners
traveling underground in mines, Tennessee Coal, 321 U.S. at598–99, constituted “work” for which employees were enti-
tled compensation.
16 Nos. 19-3180 & 19-3183
These holdings “provoked a flood of litigation,” with
“unions and employees fil[ing] more than 1,500 lawsuits
under the FLSA,” seeking almost a combined “$6 billion in
backpay and liquidated damages for various preshift and
postshift activities.” Integrity Staffing Sols., Inc. v. Busk, 574
U.S. 27, 31–32 (2014). In response to the litigation that fol-
lowed the Supreme Court’s rulings, “a flood of anti-portal
bills was introduced” in Congress. Marc Linder, Class Strug-
gle at the Door: The Origins of the Portal-to-Portal Act of 1947, 39
Buff. L. Rev. 53, 133 (1991).
Congress determined that the Act “ha[d] been interpret-
ed judicially in disregard of long-established customs, prac-
tices, and contracts between employers and employees,
thereby creating wholly unexpected liabilities, immense in
amount and retroactive in operation, upon employers,” and
declared the current situation an “emergency.” 29 U.S.C.
§ 251. It concluded that, if the Court’s interpretation of the
Act were to stand, it “would bring about financial ruin of
many employers and seriously impair the capital resources
of many others,” while allowing “employees [to] receive
windfall payments, … for activities performed by them
without any expectation of reward beyond that included in
their agreed rates of pay.” Id.“Congress met this emergency with the Portal-to-Portal
Act.” Integrity Staffing, 574 U.S. at 32. The Portal-to-Portal
Act amended the FLSA by creating two categories of
work-related activities for which employers were not liable:
(a) … [N]o employer shall be subject to any li-
ability or punishment … on account of the
failure of such employer to pay an employ-
Nos. 19-3180 & 19-3183 17
ee minimum wages, or to pay an employee
overtime compensation, for … —
(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.
29 U.S.C. § 254(a). Thus, ordinary commute times and pre-
liminary and postliminary activities that occurred before or
after the workday were no longer compensable activities
under the FLSA.
Notably, the Portal-to-Portal Act left in place the contin-
uous workday rule. Under this rule, “compensable time
comprises ‘the period between the commencement and
completion on the same workday of an employee’s principal
activity or activities … [,] whether or not the employee en-
gages in work throughout all of that period.’” Sandifer v. U.S.
Steel Corp., 571 U.S. 220, 226 (2014) (quoting 12 Fed. Reg.
7658 (1947); 29 C.F.R. § 790.6(b) (2013)). The Department of
Labor’s interpretive statements confirm the continued vitali-
18 Nos. 19-3180 & 19-3183
22
ty of this rule. Those statements provide explicitly that the
“[p]eriods of time between the commencement of the em-
ployee’s first principal activity and the completion of his last
principal activity on any workday must be included in the
computation of hours worked”; such time is unaffected by
the excepted categories created by the Portal-to-Portal Act.
29 C.F.R. § 790.6(a); see 29 U.S.C. § 254(a). Similarly, the in-
terpretive statements define “workday” as “the period be-
tween the commencement and completion on the same
22 The Department of Labor’s interpretive statements relating to the Por-
tal-to-Portal Act “are not promulgated regulations because Congress did
not authorize the Secretary of Labor to issue regulations regarding the
scope of the exemptions.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d
1340, 1343 (11th Cir. 2007); 29 C.F.R. § 790.1(c) (“[T]he interpretations set
forth herein are intended to indicate the construction of the law which
the Administration believes to be correct.”). “As an interpretive regula-
tion, it does not have the force of binding law.” Howard v. City of Spring-
field, Ill., 274 F.3d 1141, 1146 (7th Cir. 2001) (citing Shaw v. Prentice Hall
Comput. Publ’g, Inc., 151 F.3d 640, 642 (7th Cir. 1998)). The Department of
Labor’s interpretative statement, then, is “not entitled to deference, alt-
hough courts may rely on it as persuasive evidence both of Congress’s
legislative and the Secretary’s regulatory intent.” Id.; see also Gonzales v.
Oregon, 546 U.S. 243, 256 (2006) (“[T]he interpretation is ‘entitled to re-
spect’ only to the extent it has the ‘power to persuade.’” (quoting Skid-
more v. Swift & Co., 323 U.S. 134, 140 (1944))); Skidmore, 323 U.S. at 140(“[R]ulings, interpretations and opinions of the Administrator under this
Act, while not controlling upon the courts by reason of their authority,
do constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance. The weight of such
a judgment in a particular case will depend upon the thoroughness evi-
dent in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which give it
power to persuade, if lacking power to control.”).
Nos. 19-3180 & 19-3183 19
workday of an employee’s principal activity or activities.” 29
C.F.R. § 790.6(b).
Congress again amended the Portal-to-Portal Act in 1996
with the Employment Commute Flexibility Act (“ECFA”).
This enactment “clarifie[d] the applicability of the Por-
tal-to-Portal Act to the payment of wages to employees who
use employer-provided vehicles.” Chambers v. Sears Roebuck
& Co., 428 F. App’x 400, 409 (5th Cir. 2011). The ECFA, in
relevant part, states:
[T]he 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 con-
sidered part of the employee’s principal activi-
ties if the use of such vehicle for travel is with-
in the normal commuting area for the employ-
er’s business or establishment and the use of
the employer’s vehicle is subject to an agree-
ment on the part of the employer and the em-
ployee.
29 U.S.C. § 254(a).
Therefore, the FLSA, as amended, applies only to the
employee’s “principal activity.” An employee’s “principal
activity” includes any activity “integral and indispensable”
to the principal activity. A “principal activity” commences
an employee’s workday; once started, that “workday” con-
tinues until the conclusion of the employee’s final principal
activity of the day. The Act, however, does not apply to a
worker’s “preliminary activity” or “postliminary activity.”
20 Nos. 19-3180 & 19-3183
The dichotomy between “principal activity” on the one
hand and “preliminary activity” or “postliminary activity”
on the other is an important distinction for our analysis. Just
as important, however, is a clear understanding of “principal
activity.” An employee’s “principal activity” is the activity
or activities which the employee is employed to perform. In-
tegrity Staffing, 574 U.S. at 36; see also 29 C.F.R. § 790.8(a). The
Department of Labor notes that “[t]he legislative history …
indicates that Congress intended the words ‘principal activi-
ties’ to be construed liberally … to include any work of con-
sequence performed for an employer, no matter when the
work is performed.” 29 C.F.R. § 790.8(a).
The Supreme Court consistently has interpreted “princi-
pal activity” to include all activities which are “integral and
indispensable” to the principal activity. Integrity Staffing, 574
U.S. at 33; IBP, Inc., 546 U.S. at 29–30; Steiner v. Mitchell, 350
U.S. 247, 252–53 (1956). This reading is consistent with the
Department of Labor’s interpretive statements. See 29 C.F.R.
§ 790.8(b) (“The term ‘principal activities’ includes all activi-
ties which are an integral part of a principal activity.”); id.§ 790.8(c) (“Among the activities included as an integral part
of a principal activity are those closely related activities
which are indispensable to its performance.”).
In defining “integral and indispensable,” the Supreme
Court has interpreted “those words in their ordinary sense.”
Integrity Staffing, 574 U.S. at 33. “The word ‘integral’ means
‘[b]elonging to or making up an integral whole; constituent,
component; spec[ifically] necessary to the completeness or
integrity of the whole; forming an intrinsic portion or ele-
ment, as distinguished from an adjunct or appendage.’” Id.
(alterations in original) (quoting 5 Oxford English Dictionary
Nos. 19-3180 & 19-3183 21
336 (1933)). The word “‘indispensable’ means a duty ‘[t]hat
cannot be dispensed with, remitted, set aside, disregarded,
or neglected.’” Id. (alteration in original) (quoting 5 Oxford
English Dictionary 219). Thus, “[a]n activity is therefore in-
tegral and indispensable to the principal activities that an
employee is employed to perform if it is an intrinsic element
of those activities and one with which the employee cannot
dispense if he is to perform his principal activities.” Id.
By contrast, a “preliminary activity” is “an activity en-
gaged in by an employee before the commencement of his
‘principal’ activity or activities.” 29 C.F.R. § 790.7(b). Similar-
ly, a “postliminary activity” is “an activity engaged in by an
employee after the completion of his ‘principal’ activity or
activities.” Id. “[A]n activity which is a ‘preliminary’ or
‘postliminary’ activity under one set of circumstances may
be a principal activity under other conditions.” Id. § 790.7(h).
The cases and Department of Labor statements interpret-
ing the Portal-to-Portal Act focus on the distinction between
“principal activity” on the one hand, and “preliminary” and
“postliminary” on the other. By doing so, they help illustrate
the meaning of “integral and indispensable,” which, as we
have seen, is the important descriptive phrase in our under-
standing of “principal activity.” We therefore will review
these authorities before returning to the facts of the case be-
fore us.
We begin with Steiner v. Mitchell, 350 U.S. at 247. There,
the Supreme Court held that the time spent by battery-plant
employees “changing clothes at the beginning of the shift
and showering at the end, where they must make extensive
use of dangerously caustic and toxic materials,” was integral
and indispensable to the employees’ principal activity. Id. at
22 Nos. 19-3180 & 19-3183
248. In Mitchell v. King Packing Co., 350 U.S. 260 (1956), the
Court held that “the knife-sharpening activities of
[meat-packer employees] [we]re an integral part of and in-
dispensable to the various butchering activities for which
they were principally employed.” Id. at 263. The activity was
integral and indispensable because “a dull knife would slow
down production which is conducted on an assembly line
basis, affect the appearance of the meat as well as the quality
of the hides, cause waste and make for accidents.” Id. at 262.
By contrast, in IBP, Inc., 546 U.S. at 21, the Court held that
the time spent by meat processing plant employees waiting
to don protective gear was not compensable under the FLSA
because it was “two steps removed from the productive ac-
tivity on the assembly line.” 546 U.S.at 42. The Court con-
trasted pre-donning waiting time from the actual activity of
donning certain protective gear “which is always essential if
the worker is to do his job.” Id. at 40. “[T]he fact that certain
preshift activities are necessary for employees to engage in
their principal activities does not mean that those preshift
activities are ‘integral and indispensable’ to a ‘principal ac-
tivity.’” Id. To characterize as “integral and indispensable”
activities that were merely necessary would leave “no limit-
ing principle” and lead “to the logical (but untenable) con-
clusion that the walking time at issue in Anderson would be a
‘principal activity.’” Id. at 41. Such conclusion, however, was
the judicial interpretation squarely rejected by Congress
23
when it passed the Portal-to-Portal Act.
23Following the Supreme Court’s decision in IBP, Inc. v. Alvarez, 546 U.S.
21 (2005), the Department of Labor issued Wage and Hour Advisory
Memorandum No. 2006-2 on May 31, 2006, reiterating that
(continued … )
Nos. 19-3180 & 19-3183 23
In Integrity Staffing, 574 U.S. at 27, the Court reiterated
that “[t]he integral and indispensable test is tied to the pro-
ductive work that the employee is employed to perform.” 574
U.S. at 36. There, employees sought compensation for the
time spent undergoing post-shift security screenings before
leaving the workplace. The principal activity of the employ-
ees, however, was to “retrieve products from warehouse
shelves and package those products for shipment to Amazon
customers.” Id. at 35. The employees were not hired “to un-
dergo security screenings” and “[t]he screenings were not an
intrinsic element of retrieving products from warehouse
shelves or packaging them for shipment.” Id. Further, “In-
tegrity Staffing could have eliminated the screenings alto-
gether without impairing the employees’ ability to complete
their work.” Id.
The Department of Labor offers two more examples of
activities considered integral and indispensable, and there-
fore principal activities:
( … continued)
… donning and doffing of required gear is within the
continuous workday only when the employer or the na-
ture of the job mandates that it take place on the em-
ployer’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 plant.
Id. at 3; see also Stuntz v. Lion Elastomers, 826 F. App’x 391, 401 (5th Cir.
2020) (affirming the district court’s determination that time spent don-
ning and doffing generic PPE was not integral or indispensable, as “em-
ployees admitted their option of either taking the PPE home or leaving
them at the facility”).
24 Nos. 19-3180 & 19-3183
(1) In connection with the operation of a lathe
an employee will frequently at the com-
mencement of his workday oil, grease or
clean his machine, or install a new cutting
tool. Such activities are an integral part of
the principal activity, and are included
within such term.
(2) In the case of a garment worker in a textile
mill, who is required to report 30 minutes
before other employees report to commence
their principal activities, and who during
such 30 minutes distributes clothing or
parts of clothing at the workbenches of oth-
er employees and gets machines in readi-
ness for operation by other employees, such
activities are among the principal activities
of such employee.
29 C.F.R. § 790.8(b)(1)–(2). The Department of Labor also
provides an example of when an activity might be integral
and indispensable in one context, but not in another:
If an employee in a chemical plant, for exam-
ple, cannot perform his principal activities
without putting on certain clothes, changing
clothes on the employer’s premises at the be-
ginning and end of the workday would be an
integral part of the employee’s principal activi-
ty. On the other hand, if changing clothes is
merely a convenience to the employee and not
directly related to his principal activities, it
would be considered a “preliminary” or “post-
Nos. 19-3180 & 19-3183 25
liminary” activity rather than a principal part
of the activity.
Id. § 790.8(c) (footnotes omitted).
With these authorities in mind, we now turn to the case
before us.
2.
a.
The operators submit that the district court should not
have granted summary judgment because a factual dispute
remains as to whether SWAT operators must take their gear
home in order to perform their principal activity of provid-
ing a tactical response to high-risk critical incidents. In their
view, the district court ignored significant evidence that
bringing their gear home was essential to providing the rap-
id response necessary to the unit’s mission. It was error, they
urge, for the district court to reach this conclusion by relying
on the one exception where an individual officer was per-
mitted to store his M4 rifle at Homan Square because he
could not provide safe storage at home.
The City points out that there is evidence in the record
that the CPD has allowed officers to store weapons at
Homan Square at various times. Even after 2017 when the
CPD made vehicles available to all the operators, officers re-
ceived permission to leave weapons at Homan Square. The
City maintains, however, that the general expectation is that
members of the SWAT Unit will take their gear home.
It is not at all clear that there is an issue of fact separating
the parties about the policy or the practice of the CPD. In
any event, any such disagreement is hardly material to the
26 Nos. 19-3180 & 19-3183
resolution of the dispute in this case. In Integrity Staffing,
where security screenings were held to be postliminary to
the principal activity of retrieving and packaging products,
the Supreme Court held that the court of appeals had “erred
by focusing on whether an employer required a particular ac-
tivity.” Integrity Staffing, 574 U.S. at 36. The Court clarified
that “[t]he integral and indispensable test is tied to the pro-
ductive work that the employee is employed to perform.” Id.
To focus merely on whether the employer required an activi-
ty “would sweep into ‘principal activities’ the very activities
that the Portal-to-Portal Act was designed to address.” Id.
Even assuming a factual dispute, the “integral and indispen-
sable” test does not turn on whether an employer required a
particular activity. As we explain further below, even if the
operators could prove these activities were fully required,
their position still fails. Therefore, whether SWAT operators
were required to transport and store their equipment in their
residences is not a material dispute and does not preclude
summary judgment.
b.
We next examine the position of the operators. In es-
sence, the operators maintain that bringing their weapons
and equipment home, removing much of it from their vehi-
cles, and storing securely the removed portion in their
homes is an integral and indispensable part of their principal
activity. They define that principal activity as responding
rapidly and systematically to critical incidents. In their view,
their workday begins when they begin to load their weapons
and gear in the CPD car at their home and ends when they
have secured that property in their home upon return. Not-
ing that the district court relied in part on the decision of the
Nos. 19-3180 & 19-3183 27
Ninth Circuit in Balestrieri v. Menlo Park Fire Protection Dis-
trict, 800 F.3d 1094 (9th Cir. 2015), they take significant care
in attempting to distinguish that case from their own.
In Balestrieri, the Ninth Circuit considered whether fire-
fighters were entitled to overtime compensation for the time
spent loading and unloading their gear from their perma-
nent to temporary duty stations while they were in an
off-duty status. The court held that this time was not com-
pensable under the FLSA because it was “two steps re-
moved” from the firefighters’ principal activity of fire sup-
pression. Because the loading and transporting of gear was a
“preliminary” activity and “not intrinsic to” fire suppres-
sion, it was not “integral and indispensable.” Here, the dis-
trict court concluded that the off-duty loading and transpor-
tation of SWAT equipment was similarly “two steps re-
moved” from the principal activity of critical incident re-
sponse.
The operators submit that the district court’s reliance on
Balestrieri was misplaced because (1) the principal activities
and requirements of SWAT operators are not sufficiently
similar to those of the firefighters and (2) the gear at issue
24
was simply not comparable. The operators maintain that
they cannot perform their principal activity of responding to
critical incidents if they leave their equipment at work. They
point to the goals and mission of the SWAT unit, the expec-
tations that operators respond within an hour of call-out,
and the continued emphasis on maintaining a state of readi-
ness. In their view, taking their equipment home is integral
24 Appellant’s Br. 14–18.
28 Nos. 19-3180 & 19-3183
and indispensable to maintaining a state of readiness and
responding within one hour of a call-out.
In assessing the operators’ view, we turn first to the time
spent by the operators in their CPD vehicles driving to and
from their duty station for their regular work shifts. We have
little difficulty in concluding that this time is not, standing
alone, compensable. The 1996 amendments to the Por-
tal-to-Portal Act through the ECFA make it clear that com-
muting time in an employer-provided vehicle is not com-
pensable under the FLSA. This rule is not rendered nugatory
simply because, as here, the employee carried supplies and
equipment related to the employer’s business. Nor does the
analysis change simply because the employer places certain
restrictions on the use of the vehicle.
The Eleventh Circuit arrived at a similar conclusion in
Llorca v. Sheriff, Collier County, Florida, 893 F.3d 1319 (11th
Cir. 2018). There, the court held that sheriff deputies’ com-
mute time—during which they were required to monitor the
radio and observe and enforce traffic violations—was not an
indispensable activity because the requirement to monitor
“could be dispensed with without affecting at all the depu-
ties’ performance of their law enforcement duties during
their shifts.” Id. at 1328. Even if abolition of these in-transit
duties had the effect of undermining law enforcement gen-
erally, the Eleventh Circuit concluded that the deputies
“could fully perform their law enforcement duties during
their shifts even if the sheriffs did not require them to en-
gage in traffic law enforcement during their commutes.” Id.We agree that Balestrieri and Llorca support the district
court’s view of this case. However, even in the absence of
these supportive cases from our sister circuits, we still would
Nos. 19-3180 & 19-3183 29
conclude that applicable Supreme Court precedent and con-
sonant Department of Labor interpretive statements require
the conclusion that the off-duty transportation, loading and
unloading, and storage of SWAT equipment simply is not
integral and indispensable to SWAT operators’ principal ac-
tivities. Certainly, as the operators maintain, the record sup-
ports the assertion that the SWAT unit must respond quickly
in the event of a call-out. The record does not support the
conclusion, however, that the operators could not perform
their principal duties without bringing their equipment
home. SWAT operators may be able to perform their jobs
better if they bring their weapons and other gear home, but
as they had prior to 2009, SWAT operators still are able to
perform their principal activities if they do not bring their
equipment home but rely on other arrangements. Indeed,
the record establishes that the officers who were unable to
store their rifles at home would pick up their weapons from
the weapons truck when it arrived on site. An activity that
allows a reduced response time is an activity that promotes
greater efficiency, but greater efficiency alone does not turn
an activity into an integral and indispensable one.
The expectation that the operators will respond to emer-
gency situations that occur while in transit is not an obliga-
tion in any way tied to their status as SWAT operators or to
their use of a CPD vehicle. These are obligations undertaken
by all off-duty CPD officers by virtue of the position of trust
that they hold. In the same vein, the restrictions imposed on
their use of CPD vehicles do not have even the most remote
relationship to the principal activity of the operators. The
CPD, like any employer who loans valuable property to an
employee, has the right to impose reasonable restrictions on
its use while it is in the custody of the employee. The City
30 Nos. 19-3180 & 19-3183
has every right to limit its liability exposure and to guard
against excessive depreciation of its assets.
The CPD requirement that certain equipment not be left
in the vehicle but stored in the residence is nothing more
than a reasonable directive that its officers take the precau-
tions necessary to ensure the safe and secure storage of the
weapons and equipment. This activity is very far removed,
both logically and practically, from the operators’ principal
activity of handling critical incidents. It is simply designed
to protect the public and ensure that Chicago-owned dan-
gerous equipment is not used abusively.
The record firmly establishes that the activities for which
the operators seek compensation are not integral and indis-
pensable, but rather preliminary and postliminary activities
to the workday, and explicitly excluded in the Por-
25
tal-to-Portal Act. Thus, the continuous workday rule is in-
25The operators also contend that the district court failed to consider a
number of relevant cases. These cases are distinguishable because the
pre- or post-commute tasks at issue were found to be integral and indis-
pensable to the principal activity.
In Graham v. City of Chicago, 828 F. Supp. 576 (N.D. Ill. 1993), canine
police officers who were required to board dogs at home, sought com-
pensation for the time spent transporting the dogs to and from work.
The court held that such time was compensable, as it was integral and
indispensable to the officers’ principal duties. Before transporting the
dogs, “the officers must feed the animals and prepare them for the day’s
work,” which the court found “clearly integral to their principal duties.”
Id. at 582. Similarly, transporting the dogs from work to home was “not
postliminary because the principal activities [were] still ongoing: the
dogs must still be fed and exercised.” Id. For an employee’s commute
time to be considered compensable, the court must first find that the ac-
(continued … )
Nos. 19-3180 & 19-3183 31
applicable here.
B.
We now turn to the operators’ remaining state-law claim.
The Illinois Wage Payment and Collection Act “provides
employees with a cause of action against employers for the
timely and complete payment of earned wages.” Enger v.
Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016) (cit-
ing 820 ILCS 115/3). The IWPCA defines “wages” as “com-
pensation owed an employee by an employer pursuant to an
employment contract or agreement between the 2 parties.”
820 ILCS 115/2. To state a claim under the IWPCA, employ-
ees are “required to demonstrate that they are owed com-
pensation from defendants pursuant to an employment
agreement.” Enger, 812 F.3d at 568; see also Brown v. Lu-
lulemon Athletica, Inc., No. 10-cv-05672, 2011 WL 741254, at *3
(N.D. Ill. Feb. 24, 2011) (“It is well established that an em-
( … continued)
tivities done before or after the commute were integral and indispensa-
ble.
The court in Pizano v. Big Top & Party Rentals, LLC, No. 15-cv-11190,
2017 WL 1344526 (N.D. Ill. Apr. 12, 2017), did conclude that ride time
could be compensable under the FLSA, but the court did not determine if
compensation was actually warranted. The order the operators cite to,
however, did not decide the case—a factual issue remained, and discov-
ery had not yet begun. The court stated that “[a]ssuming that Plaintiff
establishes that he performed such tasks and that these tasks are integral
and indispensable to Defendants’ principal activity,” then the travel time
would be compensable under the continuous workday rule. Id. at *5.
Still, Pizano does not support the operators’ case here if the loading and
unloading of equipment are held to be only preliminary and postlimi-
nary activities.
32 Nos. 19-3180 & 19-3183
ployee can have no claim under the IWPCA unless the em-
ployer and employee agreed that the former would compen-
sate the latter for the particular work allegedly performed.”).
Such an “employment agreement need not be a formally
negotiated contract.” Landers-Scelfo v. Corp. Off. Sys., Inc., 827
N.E.2d 1051, 1059 (Ill. App. Ct. 2005). A plaintiff “does not
need to plead all contract elements if she can plead facts
showing mutual assent to terms that support the recovery.”
Id. The IWPCA, however, “provides no substantive relief
beyond what the underlying employment contract requires.”
Enger, 812 F.3d at 570; see also Wharton v. Comcast Corp., 912
F. Supp. 2d 655, 658 (N.D. Ill. 2012) (“The IWPCA therefore
does not provide an independent right to payment of wages
and benefits; instead, it only enforces the terms of an existing
contract or agreement.”). Thus, the IWPCA holds the em-
ployer only to its promise under the employment agreement.
Enger, 812 F.3d at 570.
The Collective Bargaining Agreement between the City
and Chicago police officers provides that “[a]ll approved
overtime in excess of the hours required of an officer by rea-
son of the officer’s regular duty, whether of an emergency
nature or of a non-emergency nature, shall be compensated
26
for at the rate of time-and-one-half.” According to the op-
erators, the City effectively “pre-authorized and
pre-approved” them to work overtime by requiring them to
transport, load and unload, and secure their SWAT equip-
27
ment while off duty. Moreover, the operators continue, be-
26 R.185-1 at 41; R.185-2 at 30–31.
27 Appellant’s Br. 8, 26–28.
Nos. 19-3180 & 19-3183 33
cause the City gives the operators on-the-clock time to trans-
fer the equipment from their take-home vehicle upon arrival
at work and to transfer it again at the end of the shift, “the
28
City has determined it is compensable work.” The City,
however, maintains that there was no such agreement, “ei-
ther by written contract or by their actions,” that the opera-
tors’ compensable work included their commute time, the
loading and unloading of equipment from their vehicles to
their residences, and the securing of that equipment inside
29
their residences.
We start our evaluation of this argument by noting that
there is nothing in the Collective Bargaining Agreement—or
the record—to establish the existence of an express agree-
ment between the parties that the City would compensate
the operators for the off-duty time spent transporting, un-
loading, and securing their equipment inside their residenc-
es. It is not enough to allege “the existence of any employ-
ment contract or agreement”: the operators must “alleg[e]
the existence of a contract or agreement that specifically
gives [the Operators] a right to the wages [they] seek[].”
Dominguez v. Micro Ctr. Sales Corp., No. 11-cv-8202, 2012 WL
1719793, at *1 (N.D. Ill. May 15, 2012) (dismissing IWPCA
claim for failure to allege specific agreement beyond general
30
employment contract). However, as the operators submit,
28 Id. at 27.
29 Appellee’s Br. 39.
30 See also, e.g., Grant v. Bd. of Educ. of City of Chi., 668 N.E.2d 1188, 1196
(Ill. App. Ct. 1996) (rejecting IWPCA claim because collective bargaining
agreement did not require the payment of accumulated unused sick
(continued … )
34 Nos. 19-3180 & 19-3183
express agreements are not required in IWPCA cases. An
agreement “can be entirely implicit.” Landers-Scelfo, 827
N.E.2d at 1058. Indeed, an employer’s acquiescence or the
existence of a custom or practice may constitute an agree-
ment to compensate for such activities. See Blakes v. Ill. Bell
Tel. Co., 77 F. Supp. 3d 776, 781–82 (N.D. Ill. 2015).
Here, the record is also devoid of any implicit agreement
between the parties or of any acquiescence by the City that
operators would be compensated for the activities at issue.
Several operators stated that they were unaware of any
agreement that the City had an obligation to pay the opera-
tors for the time at issue. The evidence of a custom or prac-
tice is even weaker. Indeed, several operators first submitted
overtime slips in March and April 2016 for the time spent
transporting, loading and unloading, and securing their
equipment in their residences. Other operators admitted that
they never submitted overtime slips until March 2016 be-
cause they knew their slips would be denied. And in May
2016, the City denied the overtime slips submitted for such
activities. The officers contend that “[t]he fact that the City
never paid Plaintiffs for their uncompensated work or de-
nied Plaintiffs’ requests to be paid for said work does not
31
prove that there was no agreement to [pay] for said work.”
However, without any other evidence in the record beyond
personal convictions that they should have been paid, the
( … continued)
leave); Brand v. Comcast Corp., No. 12-cv-1122, 2013 WL 1499008, at *6
(N.D. Ill. Apr. 11, 2013) (“It is not sufficient for an IWPCA claimant to
allude to a ‘policy’ to pay overtime.”).
31 Appellant’s Br. 28.
Nos. 19-3180 & 19-3183 35
operators have failed to demonstrate a genuine dispute of
material fact to survive summary judgment.
Conclusion
The off-duty activities of transporting, loading and un-
loading, and storing SWAT equipment are too removed
from the operators’ principal activity of responding to criti-
cal incidents. Additionally, there was no agreement—
explicit or implicit—between the parties that the City would
provide overtime compensation for such activities. Accord-
ingly, the judgments of the district court are affirmed.
AFFIRMED