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Pay & Leave Claim Decisions

Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Cory W. Fuller
Officer-Technician
LE-0083-01
Uniformed Division
Protective Operations
U.S. Secret Service
Washington, D.C.
Compensation for preparatory and concluding activities
No FLSA overtime pay is due
F-0083-01-01

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

11/20/2014


Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision. 

Introduction

On April 15, 2013, the U.S. Office of Personnel Management (OPM) received a Fair Labor Standards Act (FLSA) claim from Mr. Cory W. Fuller.  The claimant contends that his agency violated the FLSA, 29 U.S.C. 201 et seq., by failing to pay proper overtime.  During the claim period he occupied the position of Officer-Technician, LE-0083-01, and was assigned to the Emergency Response Team (ERT), Special Operations Division, Uniformed Division (UD), U.S. Secret Service (USSS), U.S. Department of Homeland Security, in Washington, D.C.  We accepted and decided this claim under section 4(f) of the FLSA as amended.

To help decide this claim, we conducted an on-site interview with the claimant on July 7, 2014; and his first-level supervisor, Sergeant-Technician Jon Stewart, on July 31, 2014.  In reaching our FLSA decision, we considered the information gained from these interviews and all other material of record furnished by the claimant and his agency.   

Background

The claimant’s agency determined that his position is nonexempt from the overtime provisions of the FLSA and we concur. 

As a member of the ERT, the claimant is responsible for safeguarding the White House and its grounds.  He routinely works the night shift, which runs from 10:00 p.m. to 6:30 a.m.  Approximately forty-five minutes prior to his shift, he parks his personally-owned vehicle at the U.S. Naval Observatory parking lot, located at 3450 Massachusetts Avenue, NW, Washington, D.C.  He then drives a Government vehicle in a carpool with other UD Officers who also park their vehicles at the Observatory, to 1111 18th Street, NW, Washington D.C., where they report for roll call.  The distance between the Naval Observatory and 1111 18th Street is approximately 2.33 miles.  The time it takes to travel between the two locations varies depending on the amount of traffic.  The claimant is not paid for this time and he believes that this travel time, which takes place before and after each shift, is compensable under the FLSA. 

Once the claimant arrives at 1111 18th Street, he enters a locker room provided for officers to change into and out of their uniforms and/or protective gear.  Generally the claimant wears his uniform to work and back home.  Under UD policy, the ERT uniform consists of black BDU pants, black shirt, issued holster, radio with ear piece, black boots, and a black load-bearing vest with “USSS Police” markings.  However, the claimant does not wear his required protective gear into work, which consists of a ballistic vest and a gun belt containing an issued weapon, flashlight, radio, extendable baton, handcuffs, gas mask, and a magazine pouch.  As the vest is bulky and could impede his movement, the claimant chooses not to wear it or the gun belt home.  Instead, he leaves the vest and the gun belt in the locker room and puts both on before his shift and takes them off after his shift.  The claimant is not paid for this time and believes that putting on and taking off the protective gear is compensable under FLSA provisions.               

After putting on his protective vest, the claimant walks to the roll call room, where his shift officially begins, for a briefing.  This time typically lasts around fifteen minutes.  After roll call the claimant reports to a nearby bunker to obtain an assignment-specific weapon.  The claimant then drives from his roll call location to his duty post.    

On March 11, 2013, the claimant filed a grievance against his agency to recover unpaid compensation under the FLSA for: (1) time spent traveling between his roll call location and his duty post before and after each scheduled shift; and (2) time spent putting on (“donning”) and taking off (“doffing”) required protective equipment each day.  After failing to receive a response to his grievance, the claimant filed an FLSA claim with OPM.    

After conduct of the on-site audit, the claimant asserted an additional claim for overtime pay for time spent traveling between the U.S. Naval Observatory parking lot and 1111 18th Street, the roll call location.  We address each claim separately below:        

Evaluation of Overtime Claim 

Time spent traveling between the Naval Observatory and roll call location

The FLSA regulations governing time spent traveling are found in section 551.422 of title 5, CFR.  As stated in section 551.422:

(a) Time spent traveling shall be considered hours of work if:

(1) An employee is required to travel during regular working hours;

(2) An employee is required to drive a vehicle or perform other work while traveling;

(3) An employee is required to travel as a passenger on a one-day assignment away from the official duty station; or

(4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours.

Under the FLSA, travel may be considered hours of work only if one of the above four criteria are met.  In the present case, traveling between the Naval Observatory and roll call location takes place before and after regular working hours, therefore, criterion (1) is not met.  The claimant is not required to drive the agency’s vehicle or perform work while traveling, but rather chooses to, therefore criterion (2) is not met.  The claimant is not engaged in assignments away from his official duty station, therefore criteria (3) and (4) cannot be met.       

An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal “home to work” travel; such travel is not hours of work.  5 CFR 551.422(b).  OPM has long held that normal commuting time from home to work and from work to home is not hours of work.  While the claimant picks up a Government vehicle and drives it to the roll call location, this is merely an extension of his commute.  This situation is analogous to an employee who can take an official Government vehicle home and use it for commuting.  The fact that the claimant drives a Government vehicle for part of his commute does not mean that activity is compensable under the FLSA.  See Jerry Bobo v. United States, 136 F.3rd 1465 (Fed. Cir. 1998).  The time the claimant spends driving between the Naval Observatory and the roll call location is not hours of work under the FLSA.  As noted by the agency, employer-provided parking is usually a benefit for an employee.  Thus, this claim is denied and no FLSA overtime pay is due.       


Time spent donning and doffing protective gear

The claimant notes that 5 CFR 551 generally requires the agency to compensate employees for “preparatory or concluding” activities.  As stated in section 551.412:

(a)(1) If an agency determines that a preparatory or concluding activity is closely related to an employee’s principle activity, and is indispensable to the performance of the principle activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes, as hours of work.

The claimant also believes that U.S. Supreme Court case IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), supports his claim.  Alvarez makes clear that activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities…” 

In its report to OPM, the agency states that per policy the uniform and all of the protective gear may be worn to and from work.  It states that there is no rule or other policy requiring that the claimant don and doff his uniform and/or protective gear in the locker room; therefore, it is a personal choice and not compensable under the FLSA.  Under the Uniformed Division Manual, section UND-24, Regulation Uniforms (dated June 7, 2011): “Members may wear the police uniform to and from their residence and place of work if the uniform is worn in its entirety, including the breast badge.” [1] 

We accept that the claimant does not wear the required protective gear for personal style or convenience, rather for the demands of his working environment.  The protective gear is undoubtedly integral and indispensable to the performance of his principal ERT activities, as the gear directly aids him in protecting the White House, and protecting himself.  Therefore, we concede that the gear is integral and indispensable to the performance of his principal activities as an officer.  Although the claimant may, in theory, take the protective gear home and put it on there, given its bulk, this is not a realistic option.  Therefore, unless the time spent gearing up is de minimis, then it is compensable under the FLSA and the Portal-to-Portal Act.  Under the de minimis doctrine, employers will not be deemed liable under the FLSA for otherwise compensable work when only a few seconds or minutes beyond the scheduled working hours are in dispute.  See Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 692 (1946). 

During our on-site review of the claimant’s position, we witnessed that it takes the claimant no longer than 1 to 2 minutes to put the protective vest/gear on.  Also, in an email to OPM, dated July 7, 2014, the claimant details his time spent on this activity.  In it he writes that “Donning and Doffing of protective gear (1.5 mins each way).”  When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, this time is not compensable.  It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.  Anderson v. Perdue Farms, Inc., 604 F. Supp.2d (2009).  Applying the de minimis doctrine, we conclude that the claimant’s time spent donning and doffing the protective gear is substantially less than 10 minutes, and is properly disregarded as de minimis.  Therefore, this claim is denied and no FLSA overtime pay is due.           

Time spent traveling between roll call location and duty post

In his original letter to OPM, the claimant requested compensation for time spent traveling between roll call and his duty post.  He wrote, “I am required to take a government vehicle 6 blocks to begin my shift... and 6 blocks back to end my shift… at no time during my five years in this assignment have I been compensated for this time.” 

The agency refuted this assertion in its July 29, 2013, administrative report to OPM.  In it, the agency wrote:

“Mr. Fuller states… in his claim to OPM that he drives from his roll call location to his duty post.  Although this statement is correct, this activity is subsequent to roll call.  As a result, Mr. Fuller is already in a pay status for this activity.  At the conclusion of his shift, Mr. Fuller drives from his duty post back to the roll call location to return his assignment-specific weapon to the bunker and then report to the roll call room to check off with the sergeant.  All officers are in a pay status until such time as they check off with sergeant.” 

In a subsequent undated letter to OPM, the claimant wrote: “The agency is correct that travel time after roll call is compensated…”  Therefore, this claim is denied and no FLSA overtime pay is due.    

Decision

Based on the above analysis, the claimant is not due FLSA overtime compensation.


[1] Though the agency writes “per policy the uniform and all of the protective gear may be worn to and from work,” we note that the UD Manual, section UND-24, Regulation Uniforms (dated June 7, 2011) does not directly speak to protective gear. 

 

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