Date: 09-04-2015

Case Style: Steve Balestrieri v. Menlo Park Fire Protection District

Case Number: 12-15975

Judge: Andrew J. Kleinfeld

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Northern District of California (Alameda County)

Plaintiff's Attorney: Douglas L. Steele (argued) and Thomas A. Woodley,
Woodley & McGillivary, Washington, D.C.; Duane Reno,
Davis & Reno, San Francisco, California, for Plaintiffs-
Appellants.

Defendant's Attorney: Suzanne Solomon (argued), Richard Bolanos and Arlin
Kachalia, Liebert Cassidy Whitmore, San Francisco,
California, for Defendant-Appellee.

Description: 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.
1 Bamonte v. City of Mesa, 598 F.3d 1217, 1220 (9th Cir. 2010).
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 5
I. TURNOUT GEAR
A. Facts
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 fireresistant
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.
BALESTRIERI V. MENLO PARK 6 FIRE PROT. DIST.
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.
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 7
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
BALESTRIERI V. MENLO PARK 8 FIRE PROT. DIST.
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.
B. Analysis
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”:
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 9
(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.2
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 electrical worker for the time it takes to carry
conduit from the pile of construction materials at the site to
the location on the site where the conduit is to be installed.
The issue in this case is whether, in the disputed
circumstances, a firefighter’s activities of collecting and
loading into his car his turnout gear, and driving it to a station
other than his home station, are “preliminary” or
“postliminary” to the “principal activities” for which
firefighters are employed. The district court held that as a
matter of law they are and thus uncompensable under the Act.
We agree.
After the enactment of the Fair Labor Standards Act of
1938, the Supreme Court held in Tennessee Coal, Iron &
2 29 U.S.C. § 254(a).
BALESTRIERI V. MENLO PARK 10 FIRE PROT. DIST.
Railroad Co. v. Muscoda Local No. 123 that the time miners
spent on their difficult and dangerous trip, largely
underground, after checking in for work, on their way to the
working face, was compensable work under the Act.3
Anderson v. Mt. Clemens Pottery Co. held that the minimum
necessary time spent walking from the time clock to the
pottery workers’ benches “along clean, painted floors of the
brightly illuminated and well ventilated building” where they
were free to take whatever route they wished and make
personal visits along the way, counted as compensable work
for overtime purposes, just as much as the dangerous and
difficult miners’ underground movement.4
Congress responded to these and lower court decisions
with the Portal-to-Portal Act of 1947, finding that the Fair
Labor Standards Act had been “interpreted judicially in
disregard of long-established customs,” creating “wholly
unexpected liabilities, immense in amount and retroactive in
operation,” that would “bring about financial ruin” or
“seriously impair the capital resources of many
[employers].”5 The Portal-to-Portal Act narrowed the
coverage of the Fair Labor Standards Act.6 It added the
“preliminary” and “postliminary” language that is the focus
of many cases since, including this one.
3 321 U.S. 590, 598 (1944).
4 328 U.S. 680, 683, 691 (1946).
5 29 U.S.C. § 251(a).
6 29 U.S.C. § 254(a).
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 11
Much of the case law since the Portal-to-Portal Act has
addressed “donning and doffing.” Steiner v. Mitchell held
that the time spent changing clothes at the beginning and
showering and changing at the end of the workday, for
protection from the dangerously caustic and toxic materials
they worked with, was not “preliminary” or “postliminary.”7
The explanation was that this donning and doffing, required
by law and for worker safety, was “an integral and
indispensable part of the [workers’] principal activities.”8 In
Alvarez v. IBP, Inc., we had held that donning and doffing
required protective clothes and gear before cutting meat was
integral and indispensable to the activity of cutting meat.9 On
review, our decision was affirmed, though the issue before
the Court was not the donning and doffing, but rather the
walking between the locker room and the meat cutting
station.10 In its consolidated opinion, the Court affirmed in
part and reversed in part a First Circuit decision, and held that
time spent waiting to don and doff at a poultry processing
plant was not compensable for overtime purposes.11 The
Court compared this sometimes necessary waiting time to the
necessary time spent walking from the time clock to the work
station in Anderson v. Mt. Clemens Pottery Co., and since it
was “indisputable” that the walking time was excluded under
the Portal-to-Portal Act, even though it was necessary, the
7 350 U.S. 247, 250–51 (1956).
8 Id. at 256.
9 339 F.3d 894, 903 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21
(2005).
10 IBP, Inc. v. Alvarez, 546 U.S. 21, 32 (2005).
11 Id. at 42.
BALESTRIERI V. MENLO PARK 12 FIRE PROT. DIST.
waiting time to don and doff was excluded.12 The reason was
that the waiting time was “two steps removed from the
productive activity,” too far removed to be “integral” to
slaughtering chickens.13
We held in Ballaris v. Wacker Siltronic Corp. that
donning and doffing special gowns, for the employer’s
benefit, to work in clean rooms of a chip manufacturer (where
a tiny speck of dust ruins what may be an expensive computer
chip), was compensable.14 Our decision rested on two
factors, that the donning and doffing was for the benefit of the
employer, and that the employer required it.
But in Bamonte v. City of Mesa, we held the other way,
limiting Ballaris.15 Bamonte holds that the time police
officers spent donning and doffing their uniforms at the
station was not compensable under the Fair Labor Standards
Act.16 We distinguished Ballaris on the ground that the
police officers could don and doff at home if they wished, so
donning and doffing at the police station was not required or
for the employer’s benefit.17 As in the case before us now,
the police officers had reasons for not performing the activity
at home, such as risk of access by family members to
12 Id. at 41.
13 Id. at 42.
14 370 F.3d 901, 912 (9th Cir. 2004).
15 598 F.3d 1217 (9th Cir. 2010).
16 Id. at 1225.
17 Id. at 1225–26.
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 13
firearms and exposure of family members to contaminants
and bodily fluids.18 But these reasons, for the benefit of the
employees and not the employers, were not enough to make
changing at the police station compensable work.19
The case before us, unlike those above, is not a donning
and doffing case. We addressed issues other than donning
and doffing in Busk v. Integrity Staffing Solutions, Inc.20
Warehouse workers at Amazon had to go through a security
check on their way out of the building, to protect the
company from theft. We held that “preliminary” and
“postliminary” activities remain compensable under the Fair
Labor Standards Act if “integral and indispensable” to the
“employees’ principal activities,” a requirement met if they
were “necessary to the principal work performed” and “done
for the benefit of the employer.”21 We held that this test was
satisfied because the security check had to be done at the
premises, it was for the benefit of the employer (preventing
employee theft), and the employer required it.22
But we were reversed. In Integrity Staffing Solutions, Inc.
v. Busk, the Supreme Court held unanimously that the time
waiting to clear security on the way out was not compensable
18 Id. at 1220.
19 Id. at 1225–26.
20 713 F.3d 525 (9th Cir. 2013), rev’d, 574 U.S. ____, 135 S. Ct. 513
(2014).
21 Id. at 530 (internal quotation marks omitted).
22 Id. at 531.
BALESTRIERI V. MENLO PARK 14 FIRE PROT. DIST.
under the Fair Labor Standards Act.23 Even though the
employer required the security check before the employee
could leave the building and go home, the Court held that it
was “postliminary.”24 The Court held that “[t]he security
screenings . . . were not ‘integral and indispensable’ to the
employees’ duties as warehouse workers.”25 The Court notes
that the employer “could have eliminated the screenings
altogether without impairing the employees’ ability to
complete their work,” which was getting products off the
shelves and packaging them for shipment.26 They were hired
to do that, not to go through security screenings. The Court
said that we “erred by focusing on whether an employer
required a particular activity” because “[t]he integral and
indispensable test is tied to the productive work that the
employee is employed to perform.”27 “If the test could be
satisfied merely by the fact that an employer required an
activity, it would sweep into ‘principal activities’ the very
activities that the Portal-to-Portal Act was designed to
address.”28 The Court held that our “for the benefit of the
employer” test was “similarly overbroad.”29
23 574 U.S. ____, 135 S. Ct. 513, 518 (2014).
24 Integrity Staffing, 135 S. Ct. at 518.
25 Id.
26 Id.
27 Id. at 519.
28 Id.
29 Id.
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 15
Under Integrity Staffing, it is not enough to make activity
compensable under the Fair Labor Standards Act that the
employer requires it and it is done for the benefit of the
employer. Even activities required by the employer and for
the employer’s benefit are “preliminary” or “postliminary” if
not integral and indispensable to “the productive work that
the employee is employed to perform.”30 “[A]n activity is
integral and indispensable to the principal activities that an
employee is employed to perform—and thus compensable
under the FLSA—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.”31
Applying Integrity Staffing to the present case, the
correctness of the district court’s decision is plain. When the
firefighter has put his name on the list for overtime calls, he
is free to take his gear home, and if he gets a call, he can go
to the visiting station for the assigned shift without even
stopping by his home station.32 Thus, driving to the home
station first is not “indispensable” to the firefighters’
principal activities.33 If the firefighter has come to work
early, as plaintiffs’ evidence suggests they sometimes do, and
then must spend what was expected to be leisure time before
the shift, gathering and transporting turnout gear to a visiting
30 Id.
31 Id.
32 Cf. Bamonte, 598 F.3d at 1225–26 (rejecting the argument that
donning and doffing protective gear is integral and indispensable to an
employee’s principal activities when the employee chooses to keep the
protective gear at work but is not required to do so).
33 Integrity Staffing, 135 S. Ct. at 518.
BALESTRIERI V. MENLO PARK 16 FIRE PROT. DIST.
station, that activity is “preliminary” because it is not
“intrinsic” to the firefighting activity that he is employed to
perform.
The Fair Labor Standards Act says expressly what
firefighters are employed to do: they are “employed by a fire
department of a municipality,” have “the legal authority and
responsibility to engage in fire suppression” and are “engaged
in the prevention, control, and extinguishment of fires or
response to emergency situations where life, property, or the
environment is at risk.”34 Loading up turnout gear to report
to a shift at a visiting station is “two steps removed” from that
activity, not “integral and indispensable” to it.35
II. ANNUAL LEAVE BUYBACK
The Fair Labor Standards Act generally requires
employers to pay time-and-a-half for overtime. The language
used is “one and one-half times the regular rate at which he
is employed.”36 One cannot multiply the “regular rate” by 1.5
without knowing what the “regular rate” is, and that can be a
complicated question. The parties dispute whether the district
court, which accepted the District’s exclusion of money paid
for leave buybacks from the “regular rate,” got it right.
The statute defines the “regular rate” to mean “all
remuneration for employment,” subject to eight listed
34 29 U.S.C. § 203(y).
35 Integrity Staffing, 135 S. Ct. at 518 (quoting IBP, Inc. v. Alvarez,
546 U.S. 21, 42 (2005)) (internal quotation marks omitted).
36 29 U.S.C. § 207(a)(1) (emphasis added).
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 17
exclusions and various qualifications.37 The one that matters
here is the exclusion from the “regular rate” of “payments
made for occasional periods when no work is performed due
to vacation, holiday, illness . . . . and other similar payments
to an employee which are not made as compensation for his
hours of employment.”38 The regulations issued by the
Department of Labor call such compensation “pay for certain
idle hours,”39 and interpret the statute similarly to exclude
vacation leave buybacks from the regular rate:
(a) Sums payable whether employee works
or not . . . . Suppose an employee who is
entitled to such a paid idle holiday or paid
vacation foregoes his holiday or vacation and
performs work for the employer on the
holiday or during the vacation period. If,
under the terms of his employment, he is
entitled to a certain sum as holiday or
vacation pay, whether he works or not, and
receives pay at his customary rate (or higher)
in addition for each hour that he works on the
holiday or vacation day, the certain sum
allocable to holiday or vacation pay is still to
be excluded from the regular rate. It is still not
regarded as compensation for hours of work if
he is otherwise compensated at his customary
rate (or at a higher rate) for his work on such
days. Since it is not compensation for work it
37 Id. § 207(e).
38 Id. § 207(e)(2).
39 29 C.F.R. § 778.218.
BALESTRIERI V. MENLO PARK 18 FIRE PROT. DIST.
may not be credited toward overtime
compensation due under the Act . . . .40
The regulations do not discuss sick leave buybacks one
way or the other. They do, however, interpret the statute not
to exclude from the “regular rate” “promised bonuses” such
as “attendance bonuses.”41 The firefighters argue that we
should interpret buyback of sick leave as an attendance
bonus, and count it in the regular rate.
The Sixth Circuit rejects the firefighters’ view. Featsent
v. City of Youngstown holds that payments for unused sick
leave are “similar to payments made when no work is
performed due to illness,” which the statute expressly
excludes from the regular rate.42
But in some circumstances, the firefighters’ argument,
that buybacks of sick leave amount to bonuses for attendance
and should count as part of the regular rate, is supportable.
The Department of Labor deemed sick leave buyback to be an
includable promised bonus in an Opinion Letter, where the
collective bargaining agreement provided that“[a]ll
employees will be eligible for a stipend for perfect
attendance.”43 The Department explained that under those
facts, buybacks of sick leave should count as part of the
40 29 C.F.R. § 778.219.
41 Id. § 778.211.
42 70 F.3d 900, 905 (6th Cir. 1995).
43 U.S. Dep’t of Labor, Opinion Letter FLSA2009-19 at 4 (Jan. 16,
2009), available at http://www.dol.gov/WHD/opinion/FLSA/
2009/2009_01_16_19_FLSA.pdf [hereinafter Opinion Letter].
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 19
“regular rate” “because the stipends are attendance bonuses,”
and “perfect attendance stipends encourage employees not to
use or abuse sick leave.”44 “Attendance bonuses” count as
part of the “regular rate” under the Regulations.
Likewise, the Eighth and Tenth Circuits have so
determined, in the circumstances before them. A split
decision in Acton v. City of Columbia holds that where sick
leave buybacks were conditioned on several years of coming
to work regularly, they functioned as a nondiscretionary
reward for regular workplace attendance, so counted as part
of the regular rate.45 Chavez v. City of Albuquerque holds
that sick leave buybacks are generally in the nature of
attendance bonuses, which count as part of the regular rate,
because of employers’ incentives to reduce unscheduled leave
that burdens an employer with finding a replacement.46
Both views are debatable. Buying back unused sick leave
is not the same thing as allowing sick employees to stay
home. And it is not reasonable to assume that employers
generally want employees to come to work, sick or not.
Some employers may perhaps just want warm bodies
(perhaps overly warm if feverish) in the chairs, to avoid the
nuisance of their absence. Other employers may prefer,
though, to have sick employees stay home, to avoid errors
they may make, illnesses they may spread to others at the
workplace, and to be decent to their employees. There is no
44 Id.
45 436 F.3d 969, 978 (8th Cir. 2006).
46 630 F.3d 1300, 1309–10 (10th Cir. 2011).
BALESTRIERI V. MENLO PARK 20 FIRE PROT. DIST.
reason to assume that employers providing sick leave prefer
that their employees not use it.
We need not resolve this conflict among our sister circuits
in this case because the firefighters cannot prevail under
either standard. First, as noted above, Featsent expressly
equates sick leave buyback with “payments made when no
work is performed due to illness,” which are excluded from
the regular rate under the statute’s plain language.47 This
reasoning dooms the firefighters’ claim at the outset. Second,
even under the rationale of the Opinion Letter, Acton, and
Chavez, the firefighters cannot prevail because the District
has melded sick leave and vacation leave together into
undifferentiated “annual leave.” There is no buyback of sick
leave as such, just a buyback of leave, once it accumulates to
the point that it affects cash flow too much. And the District
has no perfect attendance or even good attendance bonus built
into the leave program. “The function of the Cashout,” the
District states without contradiction, “is to mitigate the
District’s liability for banked leave hours.”
The notion of sick leave in this case arises from the way
annual leave accumulates. The District calculates leave under
a “Memorandum of Understanding” it and the firefighters
adopted under a now-expired collective bargaining
agreement. Their deal is that all firefighters receive “annual
leave in lieu of separate vacation and sick leave.” The phrase
“in lieu of” means the firefighters no longer get separate
vacation leave and sick leave. The distinction between
vacation leave and sick leave survives only in when the leave
can be used, not how it is bought back. Firefighters can take
sick leave when they get sick, but can use vacation leave only
47 70 F.3d at 905.
BALESTRIERI V. MENLO PARK FIRE PROT. DIST. 21
in the year following accrual. They have to schedule their
vacations, but, obviously, not their illnesses. For example, in
2007, a firefighter would accrue six hours per pay period
under what used to be the “sick leave” schedule, and that six
hours could be used in the same year, but the additional hours
accumulated in 2007 under the old vacation leave schedule
could not be used until 2008. Regardless of which of the old
accrual schedules generated the hours, once usable, any leave
can be used for vacation, not just illness. Thus what might
have been accumulated under the old sick leave schedule can
now be used to go fishing, not just to stay home with the flu.
Though accumulated under the old “sick leave” schedule, no
leave is “sick leave.” All the hours pour into the same pot,
the only difference being that hours accumulated under the
old vacation leave schedule get poured in the following year,
and vacations should ordinarily be scheduled with the
firefighter’s supervisor.
The firefighters urge that because hours accumulated
under the old vacation leave schedule do not pour into the
unrestricted pot until the following year, buyback should be
treated as a buyback of sick leave. We cannot see why, since
however the hours in the unrestricted pot were earned, they
get bought back once the pot exceeds 480 hours. The District
does not even keep track of which of the old schedules
generated which hours in the pot. The firefighters also urge
that as a practical matter, the buybacks ought to be treated as
buybacks of sick leave, because, as one fireman said in his
declaration, the “vast majority” of firefighters take all the
vacation they are entitled to during the year they may take it.
That declaration does not establish a genuine issue of material
fact, because the “vast majority” does not mean “all,” and the
firefighters are not required to use all their unrestricted leave.
BALESTRIERI V. MENLO PARK 22 FIRE PROT. DIST.
Some may prefer vacation, some may prefer cash, and they
can proceed however they like.
Accordingly, we reject the firefighters’ contention that
leave buyback should be included in the calculation of the
regular rate.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: