Balestrieri v. Menlo Park Fire Prot. Dist.
| Decision Date | 04 September 2015 |
| Docket Number | No. 12–15975.,12–15975. |
| Citation | 800 F.3d 1094 |
| Parties | Steve BALESTRIERI; Ken Babcock; Robert S. Black, Jr.; Aaron Blanford; Tim Bogner; David Bragg ; Kevin Brandon; Rodney Brovelli; Thomas Calvert; David Carr; Patrick Carrillo; Tony Ciardella; Gordon Coe; Dan Coyle; Rob Dehoney; Chris Dennebaum; David Dickinson; Marco Dito; Anthony Eggimann; Todd Ellis; Joseph L. Figone, Jr.; Ross Frazee; William Gilmore ; Daniel Giraudo; John Giraudo; Mike Grady ; Glenn Grant; Michael Harrington; Troy Holt; Felkak M. House; Michael Hughes; Jane O'Neil Hunt; Scott Hulton; Brett Jensen; Seth Johnson ; Robert Johnson; Jonathan D. Johnston; Ronald Keefer; Randall J. Kelly; Michael Lamb; Chung Lai; Mike Lemos; Ehren MacDonald; Jason Martin; Greg Mays ; William McFarland; Eric McGlennon; Matthew Menard; Martin E. Mijangos; George Miller; R. James Montalvo; Anthony Morales ; Brendan Charles Murphy; Andrew J. Murtagh; Thomas Neylaw; Kenneth L. Oliver; Phil Van Orden; Chuck Papangellin; Chris Pimentel; Matthew Pruitt ; Jason Puccinelli; Joey Quadt; John J. Quadt; John Renner; Steve Rohrer; Jeff Schreiber; Keith Slade; Thomas Smith; Michael Stahl; Kenneth Steele ; Steve Susa; Mike Sweeney; Gary Torre; Roy Trester; Walter Vidosh ; Rich J. Villa; Joe Wallace ; Kevin White; Greg Womble; John J. Wurdinger; Mark Zamparelli, Plaintiffs–Appellants, v. MENLO PARK FIRE PROTECTION DISTRICT, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Douglas L. Steele (argued) and Thomas A. Woodley, Woodley & McGillivary, Washington, D.C.; Duane Reno, Davis & Reno, San Francisco, CA, for Plaintiffs–Appellants.
Suzanne Solomon (argued), Richard Bolanos and Arlin Kachalia, Liebert Cassidy Whitmore, San Francisco, CA, for Defendant–Appellee.
Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. 4:10–cv–03102–SBA.
Before: ANDREW J. KLEINFELD, JACQUELINE H. NGUYEN, and PAUL J. WATFORD, Circuit Judges.
This is a firefighters' overtime dispute.
Firefighters and emergency medical personnel of the Menlo Park Fire Protection District claim that two of the District's policies violate the Fair Labor Standards Act. They claim entitlement to overtime for taking their gear to temporary duty stations. And they claim that the District's system for paying cash in lieu of unused leave time violates the Act. The district court granted summary judgment in favor of the District. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo,1 we affirm.
Firefighters need special pants, special coats, helmets with hoods, and other gear to fight fires. The firefighters are issued two sets of turnout pants and coats, made of fire-resistant fabric with reinforced cuffs and reflective stripes, and two bags to store them, so that one is always available while the other set is being laundered. The District issues only one set of the gear that does not need laundering—helmets and hoods, boots, and so forth. A firefighter has to have immediate access to his gear at work.
The firefighters are free to take all the gear home with them, and bring it in at the beginning of a shift. But they generally prefer to leave their gear in the fire station, because of the bulk and dirt, and concerns about exposing their families to the materials on soiled gear. The Menlo Park Fire Protection District maintains seven fire stations spread over a 30–square mile area within San Mateo County, in California.
The firefighters are organized and have a collective bargaining agreement. Pursuant to their collective bargaining agreement, firefighters work two consecutive 24–hour shifts, beginning and ending at 8 AM, followed by 96 hours off duty. Thus a firefighter might work from Monday morning at eight to Wednesday morning at eight, take another shift the following Sunday and Monday, then another the following Saturday and Sunday, and so forth. Every firefighter gets four days off between shifts.
The turnout gear issues in this case arise from occasions when a firefighter works a shift in a fire station other than his home station. That happens, for example, if a firefighter at another station calls in sick or is on vacation, leaving the station understaffed. Fire stations must be adequately staffed for the contingency of a fire, requiring immediate response by an adequate number of personnel.
Firefighters sign up to be called for visiting shifts when necessary, so assignments are often voluntary although a firefighter may also be ordered to work at another station when necessary. These “temporary assignments” are lucrative because if a firefighter worked his two-day shift at his home station, he is paid at time and a half for overtime on the visiting shift. The call for a visiting shift may come in either when he is at his station or when he is home off duty. A firefighter may be told during his shift that another firehouse could use him, perhaps the next day. Then he can just load his turnout gear into his car after his shift at the home station. He will get paid when he reports at the beginning of the shift at the visiting station, with his gear. If he leaves his gear at his home station and has to pick it up for use at the visiting station, he does so on his own time and will not get compensated for that.
Or the firefighter may get a phone call at home, when he is between shifts, to take an overtime shift immediately at a visiting station. If he left his gear at his home station, he has to go there to get it before reporting to the visiting station. He is paid from the time he got the phone call, not from the subsequent time when he reports to the visiting station. After the visiting shift, the firefighter is free to take his gear home until his next shift, or drop it off at his home station. His pay starts when he gets the phone call.
A firefighter may also get a phone call at home, when he has put himself on the overtime volunteer list. That list is for firefighters asked whether they would like to take an overtime shift at a visiting station, in addition to the regular shift at their home station. If the firefighter accepts the volunteer assignment, and has left his gear at work, he has to get it before reporting at the beginning of the visiting shift. He is not compensated for the time it takes to go to his home station and get his gear.
If a firefighter arrives early for his shift, perhaps showing up at seven in the morning for a shift starting at eight, he may be told to report to a visiting station. Getting his gear out of his locker and driving over to the visiting station to begin his shift there instead of his home station at eight is not compensated.
The overtime claim at issue is for the time it takes to deal with gear in the two uncompensated situations, the voluntary acceptance of an overtime shift when the firefighter is called at home or asked if he wants it during his shift, and the time to load up gear when the firefighter has come to work early and been told to report to a visiting station. In the latter situation, he would have had uncompensated time from when he arrived at his home station until the beginning of his shift, but would not have had to spend it loading up his gear. The firefighters also claim overtime for the time it takes to drop off their gear at their home stations after taking a visiting shift.
Other than the emergency calls, if the firefighter has to drive to his station to get his gear and drive over to the visiting station, he spends a half hour or so doing that without compensation. This time is compensated in emergency situations because overtime starts from the phone call, but not when the firefighter volunteers for overtime at a visiting station. If he prefers not to take his gear home with him, he may spend another half hour or so driving his gear to his home station and dropping it off. The firefighters' view is that they ought to get paid for this work-related activity. The District's view is that if the firefighters do not want to spend their own time getting their gear, they do not have to, because they are entitled to take it home with them and have it available without the need to retrieve before going to the visiting station.
Most work requires people to do some things before they start that they would not do otherwise. A construction worker may put on steel-toed boots less comfortable than the shoes he wears to the mall on Saturday and load up his tools in his car. A lawyer may put on a suit and tie that he does not wear to the mall on Saturday. And both, like many other workers, may drive to their work locations, park, and walk to where they work, before they go on the clock. And both may as a formal or practical matter be required to do these things for work, even though they do not get paid for them. So what counts as compensable work, what counts as overtime? This question has turned out to be important, for calculating overtime, and difficult.
This overtime case must be decided under the Fair Labor Standards Act as amended by the Portal–to–Portal Act of 1947. The Act excludes from compensable work, and overtime computation, commuting time and activities that are “preliminary” or “postliminary” to the “principal ... activities” that the employee “is employed to perform”:
No one would expect to pay an office worker for the time it takes to shave and put on a suit and tie. Everyone expects to pay an...
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