Under the Fair Labor Standards Act (FLSA) time spent performing preliminary or postliminary activities are non-compensable. 29 U.S.C. §254. However, the US Supreme Court held in IBP Inc. V. Alvarez, 546 U.S. 21 (2005), that time spent on activities which are "integral and indispensable" to the performance of principle activities are compensable under the FLSA. In the span of four (4) months the United States District Court for Northern District of California addressed this issue as applied to the donning and doffing of police uniforms yielding opposite results.

First, Kevin Martin a police officer for the City of Richmond, California brought suit seeking compensation for donning and doffing his police uniform. Martin v. City of Richmond, N.D. Calif., No. C 06-06146 CRB, (Aug. 10, 2007). The Richmond Police Department requires officers to be fully in uniform at the start of their shift, but officers have the option of changing at home or at the station. The court reasoned a police uniform "does not assist the officer in performing his duties" and, thus, held that time spent donning and doffing was non-compensable.

Like Officer Martin, Officer Greg Lemmon brought suit against the City of Leandro seeking an order holding that the approximately 25  30 minutes spent donning and doffing his uniform to be compensable under the FLSA. Lemmon v. City of San Leandro, N.D. Calif., No. C 06- 07107 MHP, (Dec. 7, 2007). As in Martin, Officer Lemmon was required to wear a uniform and equipment virtually identical to that of Officer Martin. Also, Officer Lemon was allowed to change at home or the station. However, Judge Patel "respectfully disagreed" with Judge Breyer's characterization of the uniform as "mere clothes." Rather, Judge Patel applying the same law to the same uniform held that the uniform is part of a "continuum of force" which is "integral and indispensable" to those activities principal to a police officer's duties. Therefore, time donning and doffing is compensable.

Martin and Lemmon illustrate the difficult nature of dealing with issues under the FLSA; not merely for employers, but also the courts themselves. While these decisions are not binding in Ohio, the facts and circumstances of theses cases are applicable to Ohio employers. As such, prudent employers are wise to be aware of continuing developments under the FLSA. Thus, employers are well advised to closely scrutinize their compensation plans in order to limit liability under the Act.