October 2015

Firefighters Not Entitled to Pay For Transporting Gear

Balestrieri v. Menlo Park Fire Protection District (2015) 2015 US App. LEXIS 15785

Firefighters may take the gear they are issued by the employer home if they choose.  Most firefighters choose to leave the gear at their home station instead of taking it home.  Occasionally, a firefighter volunteers or is required to take a shift at a station other than the home station.  If they volunteer by signing up to be called for these volunteer shifts if another station is short staffed due to illness or vacation, they are expected to report to the visiting station at the regular reporting time.  If they need to stop by their home stations to pick up their gear, they are not compensated for that time.  If they receive a call at home and need to report to a visiting station because of an emergency they are paid for time spent stopping by to pick up gear from the home station because emergency calls are paid from the time the firefighter receives the call.  Similarly, a firefighter would not be paid commute time to the home station on a regular workday, but would receive compensation for commute time responding to an emergency call since emergency calls are paid from the time the call is received.

The firefighters argued that they should be paid for time spent picking up and dropping off gear at the home station.  The district court disagreed and granted summary judgment for the employer.  The ninth circuit affirmed and held that the Fair Labor Standards Act does not require payment of the time spent dropping off gear, since the firefighters are free to take their gear home, most just choose not to do so.  That choice is personal to the firefighter, and not “integral” to the employment relationship.  The firefighters also argued that payout of leave time should be included in calculating their “regular rate” of pay.  The district court and ninth circuit likewise rejected this argument, holding the payout is not a “bonus” but payment for leave time not used, and the purpose is not to encourage attendance (thus arguably making the payouts an “attendance” bonus) but to manage the employer’s cash flow, and prevent large payouts for excessive banked time.

Even Without a Uniform Policy Requiring Technicians to Commute in Company-Provided Vehicles, Employees May be Under Employer’s Control for Purposes of Establishing Commonality for Class Certification

Alcantar v. Hobart Service et al. (9th Cir. 2015) ___ F.3d ___

In this putative class action, the employee class representative alleged the employer did not pay its service technicians for the time spent commuting in the employer’s vehicles from home to the job site and from the job site back home.  The employee also alleged that the employer failed to provide its technicians with meal and rest breaks.  At issue before the ninth circuit were the district court’s decisions on the employee’s motion for class certification and the employer’s motion for summary judgment.

The ninth circuit reversed the district court’s denial of class certification on the overtime claim on commonality grounds.  The district court had improperly focused on the fact that the employer did not have a uniform policy requiring technicians to commute in the service vehicles.  But, there is a common question as to whether the employer required technicians to use its vehicles for their commute notwithstanding the lack of such a policy because:  (1) there was no secured parking on site and employees were responsible for replacing any lost or stolen tools; (2) employees were expected to respond to calls on their company-issued cell phones while driving to and from their first and last assignments of the day; and (3) employees were prohibited from using the company vehicles for personal use, to carry passengers without prior approval, and from transporting alcohol.  Moreover, to establish commonality, the employee need only show that there is a common contention capable of class-wide determination, not that there is a common contention that will be answered, on the merits, in favor of the class.

The ninth circuit affirmed the district court’s denial of class certification for the meal and rest break claim on predominance grounds.  Questions as to why service technicians missed such breaks?whether because of the employer’s failure to provide them or the employees’ own choice to forgo them?would predominate over questions common to the class.

Training Costs Must Ordinarily be Paid by the Employer 

In re Acknowledgment Cases (2015) 239 Cal. App. 4th 1498

The Los Angeles Police Department (LAPD), in an effort to curtail attrition, required police officers who voluntarily left the LAPD within 60 months of graduation for another police academy, to reimburse the city for a pro-rata share of their police academy training costs.  Employees who were forced to reimburse the city sued, claiming the city’s policy violated Labor Code Section 2802, which requires employers to reimburse employees for “all necessary expenditures or losses incurred …by the employee in direct consequence of the discharge of his or her duties.” 

The court of appeal addressed for the first time the issue of whether training costs are covered by Labor Code Section 2802.  The California Department of Labor Standards Enforcement (DLSE) had previously opined that training for licensure required as a result of state or local law need not be paid by the employer, because licensure is a qualification for employment.   On the other hand, where the employer simply requires training or licensure independent of state or local law requirements, Labor Code Section 2802 would require the employer to reimburse the cost.

The court of appeal agreed with the DLSE’s analysis, holding that given the broad purpose of Section 2802, an employer must pay for the cost of training which is not required to obtain a license, but is intended solely to enable the employee to discharge his or her duties.  Since the LAPD required training above and beyond that which is required for certification to become a peace officer under state law, that additional training must be paid for by the employer, and could not be recouped if the employee did not comply with the city’s attrition requirements.  Therefore, the court held the city’s policy to be void.