FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED BAMONTE; JAVIER COTA; 

RICARDO PERINE, and other No. 08-16206

similarly situated employees, D.C. No.

Plaintiffs-Appellants,  2:06-cv-01860-

v. NVW

CITY OF MESA, a body politic, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

June 1, 2009—Las Vegas, Nevada

Filed March 25, 2010

Before: Ronald M. Gould and Johnnie B. Rawlinson,

Circuit Judges, and Lloyd D. George,* District Judge.

Opinion by Judge Rawlinson;

Partial Concurrence and Partial Dissent by Judge Gould

*The Honorable Lloyd D. George, U.S. District Judge for the District

of Nevada, sitting by designation. 

4759
COUNSEL

William B. Aitchison (argued) and Breanne M. Sheetz, Atchison & Vick, Inc., Portland, Oregon, for appellant Fred

Bamonte.

J. Mark Ogden, Laurent R.G. Badoux (argued), and Michael

J. Lehet, Littler Mendelson, Phoenix, Arizona, for appellee

City of Mesa. 

OPINION

RAWLINSON, Circuit Judge:

Appellants, police officers employed by Appellee City of

Mesa (City), challenge the district court’s entry of summary

judgment in favor of the City. The officers contended that the

City violated the Fair Labor Standards Act (FLSA) by failing

to compensate police officers for the donning and doffing of

their uniforms and accompanying gear. Because officers had

the option of donning and doffing their uniforms and gear at

home, the district court determined that these activities were

not compensable pursuant to the FLSA and the Portal-toPortal Act. We agree that these activities were not compensable pursuant to the FLSA, and affirm the district court’s judgment.

4762 BAMONTE v. CITY OF MESA
I. BACKGROUND

The City of Mesa, like most other municipalities, requires

its police officers to wear certain uniforms and related gear,

usually including trousers, a shirt, a nametag, a clip-on or velcro tie, specified footwear, a badge, a duty belt, a service

weapon, a holster, handcuffs, chemical spray, a baton, and a

portable radio. The wearing of body armor is optional,

although the officers are required to have the body armor

available. 

In support of their argument that the time spent donning

and doffing the uniform and related gear was compensable,

the police officers emphasized the relationship between their

uniform and gear and the performance of their duties. Specifically, the officers relayed their belief that the uniforms and

gear contribute to their command presence, thereby promoting

officer and public safety in furtherance of law enforcement

goals. 

The officers also explained that it was preferable to don

and doff their uniforms and gear at the police station. The

explanation included the following considerations: (1) the risk

of loss or theft of uniforms and gear at home; (2) potential

access to the gear by family members or guests; (3) distractions at home that might interfere with the donning process;

(4) safety concerns with performing firearm checks at home;

(5) discomfort associated with wearing the gear while commuting; (6) the increased risk of being identified as a police

officer while off-duty; and (7) potential exposure of family

members to contaminants and bodily fluids. 

The City was not oblivious to the concerns expressed by

the officers. Each officer is provided a locker at the station,

and facilities are available for the officers to don and doff

their uniforms and related gear. In sum, officers have the

option to don and doff at home or at work. No requirement

is imposed on officers by the City, with the exception of

BAMONTE v. CITY OF MESA 4763
motorcycle officers, who are required to don and doff their

uniforms and gear at home, because their shifts begin when

they leave their residences. 

On these facts, the district court granted the City’s motion

for summary judgment, concluding that, because officers had

the option and ability to don and doff their uniforms and gear

at home, the specific activity of donning and doffing uniforms

and gear at the workplace was not compensable. The officers

filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“We review de novo the district court’s order granting summary judgment.” San Diego Police Officers’ Ass’n v. San

Diego City Employees’ Retirement Sys., 568 F.3d 725, 733

(9th Cir. 2009) (citation omitted). “In doing so we are governed by the same principles as the district court: whether,

with the evidence viewed in the light most favorable to the

non-moving party, there are no genuine issues of material

fact, so that the moving party is entitled to a judgment as a

matter of law.” Id. (citation omitted). 

“Interpretations of the FLSA and its regulations are questions of law, and appellate courts review district court interpretations de novo.” Gieg v. DDR, Inc., 407 F.3d 1038, 1044-

45 (9th Cir. 2005) (citation omitted).

III. DISCUSSION

[1] “It is axiomatic, under the FLSA, that employers must

pay employees for all hours worked.” Alvarez v. IBP, Inc.,

339 F.3d 894, 902 (9th Cir. 2003), aff’d on other grounds sub

nom. IBP v. Alvarez, 546 U.S. 21 (2005) (citations and internal quotation marks omitted). “Work, the Supreme Court has

long noted, is physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the

4764 BAMONTE v. CITY OF MESA
employer.” Id. (citation and internal quotation marks omitted)

(emphasis added). However, “[t]hat such activity is work as

a threshold matter does not mean without more that the activity is necessarily compensable. The Portal-to-Portal Act of

1947 relieves an employer of responsibility for compensating

employees for activities which are preliminary or postliminary to the principal activity or activities of a given job.” Id.

(citation, alteration, and internal quotation marks omitted)

(emphasis added). 

The issue of compensation for donning and doffing clothing and gear is not new. In Steiner v. Mitchell, 350 U.S. 247

(1956), the Supreme Court considered

whether workers in a battery plant must be paid as

a part of their principal activities for the time incident to changing clothes at the beginning of the shift

and showering at the end, where they must make

extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including

vital considerations of health had [sic] hygiene, to

change clothes and to shower in facilities which state

law requires their employer to provide, or whether

these activities are preliminary or postliminary

within the meaning of the Portal-to-Portal Act and,

therefore, not to be included in measuring the work

time for which compensation is required under the

Fair Labor Standards Act.

Id. at 248 (internal quotation marks omitted). The case was

decided against the backdrop of a manufacturing process

where employees faced constant exposure to healththreatening, if not life-threatening, lead poisoning. See id. at

249-50. “[I]ndustrial and medical experts” agreed that “[s]afe

operation . . . require[d] the removal of clothing and showering at the end of the work period.” The required showering

had “become a recognized part of industrial hygiene programs

in the industry, and the state law . . . require[d] facilities for

BAMONTE v. CITY OF MESA 4765
this purpose . . .” Id. at 250 (citation omitted). The employer’s

insurer “would not accept the insurance risk if [the employers] refused to have showering and clothes-changing facilities

for their employees.” Id. at 251. 

Recognizing that changing clothes and showering “fulfilled

mutual obligations” between the employer and employee, the

Supreme Court agreed with the trial court that these activities

“constitute[d] time worked within the meaning of the Fair

Labor Standards Act.” Id. at 253 (footnote reference and

internal quotation marks omitted).1

[2] The Supreme Court explicitly articulated that “activities performed either before or after the regular work shift, on

or off the production line, are compensable under the portal1With due respect to our colleague in dissent, we suggest that our holding no more announces a bright-line location rule, see Dissenting Opinion,

p. 4786, than did the courts in Steiner, Alvarez, and Ballaris [v. Wacker

Silitronic Corp., 370 F.3d 901 (9th Cir. 2004)]. Indeed, we specifically

discuss the context of the donning and doffing of police uniforms by the

Mesa police officers, including the facts that no law, rule or regulation

required on-premises donning and doffing; and that no evidence was presented of benefit to the employer. See infra p. 4772. We refer to the “disparity in the circumstances” between this case and Steiner, Alvarez, and

Ballaris, without limiting the reference solely to location. See infra p.

4774. 

Ironically, our colleague in dissent proposes his own bright-line rule.

According to the dissent and contrary to our holding in Alvarez, employees should be compensated for off-premises donning and doffing of “protective gear” if the gear is “indispensable” and “prevents unnecessary

workplace injury.” Dissenting Opinion, pp. 4795-96. Under this brightline rule, donning and doffing of protective gear for any profession would

be compensable. See, e.g., Haight v. Wackenhut Corp., No. 03 Civ. 9870

(SCR), ___ F. Supp. 2d ___, 2010 WL 769539, at *1 (S.D.N.Y. Mar. 2,

2010) (noting security officers’ compensation claim for the donning and

doffing of “protective equipment, including steel-toed shoes, hard[hat]

helmet, safety glasses, [and] gun holster . . .). This expansive reading of

the Portal-to-Portal Act flies in the face of expressed Congressional intent

to limit rather than expand employer liability for wage payments. See 29

U.S.C. § 251(a). 

4766 BAMONTE v. CITY OF MESA
to-portal provisions of the Fair Labor Standards Act if those

activities are an integral and indispensable part of the principal activities . . .” Id. at 256. The Supreme Court concluded

that “it would be difficult to conjure up an instance where

changing clothes and showering are more clearly an integral

and indispensable part of the principal activity of the employment than in the case of these employees.” Id.2

2Our colleague in dissent mischaracterizes our holding as a “new rule.”

See Dissenting Opinion, p. 4788 n.1. In fact, our holding simply applies

precedent as established in Steiner, Alvarez, and Ballaris. See, e.g., Alvarez, 339 F.3d at 903 (observing that “the donning and doffing of this gear

on the . . . plant’s premises is required by law, by rules of [the employer],

and by the nature of the work . . .) (citation, alterations and internal quotation marks omitted) (emphasis added). Our colleague also laments that

“any police department that mandates that its officers don and doff their

uniforms and gear at the precinct must pay for that time, while those

departments that make the donning and doffing location optional face no

such requirement.” Dissenting Opinion, p. 4788 n.1. Contrary to the dissent’s perception, there is nothing “strange” about this eventuality. Id. As

discussed above, the trilogy of definitive cases on this point, expressly

consider this very factor in determining whether donning and doffing are

compensable. See Steiner, 350 U.S. at 249 (noting that “removal of clothing and showering” was required) (citation omitted); see also Alvarez, 339

F.3d at 902 (explaining that the “donning and doffing rules were mandatory”) (internal quotation marks omitted); Ballaris, 370 F.3d at 911 (recognizing that “as in Alvarez, [the employer] required [the employees] to

change into and out of their uniforms at the plant . . .”) (citations, footnote

reference and internal quotation marks omitted). In addition, the employer

in this very case expressly opted to require motorcycle officers to don and

doff their uniforms and gear at home. 

The dissent also cites Steiner v. Mitchell, 350 U.S. 247 (1956) in an

effort to minimize the importance of the fact that all of the precedential

cases involve required on-premises donning and doffing. Although our

colleague in dissent speculates that “it seems unlikely that the Court would

have concluded that [knife] sharpening was not compensable if the knifemen had enjoyed the option to do this task either at home or at the plant,”

Dissenting Opinion, p. 4788 n.1, the fact remains that this case and the

other precedential cases all involved on-premises donning and doffing. No

precedential case adopts the dissent’s preferred holding. Although the dissent accuses the majority of “parting ways with Steiner, Alvarez, and Ballaris,” Dissenting Opinion, p. 4790, it is actually the dissent that seeks to

squeeze the nonanalogous facts of this case into the holdings of Steiner,

Alvarez, and Ballaris, all of which involved required on-premises donning

and doffing. 

BAMONTE v. CITY OF MESA 4767
As we noted in Alvarez, 339 F.3d at 902, the Portal-toPortal Act provides that:

[N]o employer shall be subject to any liability or

punishment under the [FLSA] . . . on account of the

failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following

activities of such employee engaged in on or after

May 14, 1947—

(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

. . .

29 U.S.C. § 254(a) (1996). 

The Department of Labor (DOL) has promulgated general

policy statements regarding the Portal-to-Portal Act’s effect

on the determination of compensable activities. These policy

statements are not entitled to deference, but are “entitled to

respect . . . to the extent that [they] have the power to persuade.” Christensen v. Harris County, 529 U.S. 576, 587

(2000) (citations and internal quotation marks omitted). 

In 29 C.F.R. § 790.8, the DOL declared that principal activities “include[ ] all activities which are an integral part of a

principal activity.” 29 C.F.R. § 790.8(b) (footnote reference

4768 BAMONTE v. CITY OF MESA
omitted). Section 790.8 also provides the following example

of integral activities:

Among the activities included as an integral part of

a principal activity are those closely related activities

which are indispensable to its performance. If an

employee in a chemical plant, for example, cannot

perform his principal activities without putting on

certain clothes, changing clothes on the employer’s

premises at the beginning and end of the workday

would be an integral part of the employee’s principal

activity. On the other hand, if changing clothes is

merely a convenience to the employee and not

directly related to his principal activities, it would be

considered as a preliminary or postliminary activity

rather than a principal part of the activity. However,

activities such as checking in and out and waiting in

line to do so would not ordinarily be regarded as

integral parts of the principal activity or activities.

29 C.F.R. § 790.8 (c) (footnote references and internal quotation marks omitted) (emphasis added). The DOL explained

that “[s]uch a [compensable] situation may exist where the

changing of clothes on the employer’s premises is required by

law, by rules of the employer, or by the nature of the work.”

Id. n.65. 

In Alvarez, we applied Steiner and the Portal-to-Portal Act

in the specific context of considering whether a meat processing plant must “compensate its employees for the time it takes

to change into required specialized protective clothing and

safety gear.” 339 F.3d at 897. Prior to their shifts, the employees were required to “gather their assigned equipment, don

that equipment in one of the . . . plant’s four locker rooms,

and prepare work-related tools before venturing to the slaughter or processing floors.” Id. at 898. The employees’ time was

“strictly regulated and monitored.” Id. at 899. For example,

“[w]hen departing the processing and slaughter floorsBAMONTE v. CITY OF MESA 4769
whether to go to the cafeteria or to the restroom-employees

[were] permitted to leave only hats, hairnets, goggles, earplugs, and boots in place; outer garments, protective gear,

gloves, scabbards, and chains [had to] be removed . . .” Id.

(footnote reference omitted). Applying 29 C.F.R. § 790.8(c)

n.65, we opined that “because the donning and doffing of this

gear on the . . . plant’s premises is required by law, by rules

of IBP, and by the nature of the work, this donning and doffing is necessary to the principal work performed . . .” Id. at

903 (citation, alterations, and internal quotation marks omitted) (emphasis added). 

Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903 (9th

Cir. 2004), addressed whether the donning and doffing of uniforms at a silicon wafer manufacturing plant were compensable. In Ballaris, we were faithful to our precedent, observing

that:

Here, as in Alvarez, [the employer] required [the

employees] to change into and out of their uniforms

at the plant, and only at the plant, in the normal

course of the employees’ jobs. [The employer]

issued instructions to [its] employees that they must

wear the plant uniforms daily and strictly enforced

this requirement. Employees were prohibited from

leaving the plant in their uniforms and were monitored by security cameras and guards to ensure compliance. These facts weigh heavily in favor of a

determination that the activity is not excluded by the

Portal-to-Portal Act.

Id. at 911 (citations, footnote reference, and internal quotation

marks omitted) (emphasis added). We held that, “[a]s in Alvarez, because the plant uniforms were required by the

employer, and because the wearing of those uniforms was for

the employer’s benefit, the time spent putting them on and

taking them off must be included as compensable time.” Id.

(citation and internal quotation marks omitted). 

4770 BAMONTE v. CITY OF MESA
Because Ballaris parroted our holding in Alvarez, we look

to Alvarez to glean the principles we should apply while

working toward resolution of this case. In Alvarez, we

focused on the particular “circumstances presented by that

case. . . .” See Alvarez, 339 F.3d at 897, see also id. at 902

(agreeing with the district court “under the facts presented by

this case.”). Those particular circumstances included the facts

that: (1) “the meat packing industry has been one of the most

regulated businesses in the United States[,]” id. at 898; (2) all

employees were required to don “a sanitary outer garment that

[was] provided and washed each night . . .” id. n.2; (3) the

employer “restructured its shift time to include four minutes

of so-called “clothes’ time . . .” id. at 899; (4) “[o]nce a shift

[began], the . . . plant employees’ time [was] strictly regulated

and monitored, id.; (5) the employer’s “donning and doffing

rules” were mandatory, id.; and (6) the rules “fulfill[ed]

mutual obligations of employer and employee.” Id. at 901.

Applying the Portal-to-Portal Act and the holding of

Steiner to these facts, we held that the employer was required

to compensate its employees for the time spent donning and

doffing the specialized gear. See id. at 904.3

[3] We discern a three-stage inquiry utilized in resolving

the issue presented in Alvarez. The first stage addressed

whether the activity constituted “work”; the second stage

addressed whether the activity was an “integral and indispensable” duty; and the third stage addressed whether the activity

was de minimis. See id. at 902-03. In Alvarez, we defined

“work” as “physical or mental exertion . . . controlled or

required by the employer and pursued necessarily and primar3We did not include within the umbrella of compensable activities time

spent donning and doffing “non-unique protective gear such as hardhats

and safety goggles . . .” Id. at 903. The dissent’s insistence that compensation is mandated for the donning and doffing of the “non-unique protective

gear” on the officers’ uniform belt, see Dissenting Opinion, p. 4795,

directly conflicts with this portion of our holding in Alvarez. 

BAMONTE v. CITY OF MESA 4771
ily for the benefit of the employer.” Id. at 902 (citation omitted) (emphasis added).4

 The articulated definition of work

contains two conjunctive components — activity that is “controlled or required by the employer,” id. (citation omitted)

(emphasis added), and that is “pursued necessarily and primarily for the benefit of the employer.” Id. (citation omitted)

(emphasis added); see also Rodriquez v. Smith, 541 F.3d

1180, 1186 (9th Cir. 2008) (“[U]se of the conjunctive indicates that all of the conditions listed must be met.”) (citation

omitted) (emphasis in the original); Marin Gen. Hosp. v.

Modesto & Empire Traction Co., 581 F.3d 941, 947 (9th Cir.

2009) (observing that both prongs must be met for a legal test

stated in the conjunctive). 

[4] One could argue that under the facts of the case, the

donning and doffing of the uniforms and related gear by the

officers do not constitute work, simply because the donning

and doffing are not required by the employer to be performed

at the workplace, as was the case in Steiner, Alvarez, and Ballaris. Such a conclusion would foreclose the officers’ claim

under the first stage of the Alvarez analysis. However, there

is language in Alvarez that could be interpreted as supporting

a finding of compensability as a function of the employer’s

requirement that the officers wear a uniform and related protective gear. See Alvarez, 339 F.3d at 897. Giving credence to

that potential argument, as advanced by the officers in this

case, we proceed to the second stage of the Alvarez analysis

— whether the activity arguably meeting the definition of

work is contextually “integral and indispensable,” i.e. “necessary to the principal work performed and done for the benefit

of the employer.” Id. at 902-03 (citations omitted) (emphasis

4The dissent goes to great lengths to cite district court cases raising the

issue of whether the employer requires on-premises donning and doffing.

See Dissenting Opinion, pp. 4794-95. However, it is unsurprising that the

parties recognized the importance of that issue due to its prominence in the

precedential cases of Steiner, Alvarez, and Ballaris. See Alvarez, 339 F.3d

at 902 (defining “work” as “exertion . . . required by the employer . . .”)

(citation omitted) (emphasis added). 

4772 BAMONTE v. CITY OF MESA
added). It is at this stage that the officers’ claims for compensability fatally falters.

In Alvarez, we determined that the “donning and doffing of

job-related protective gear satisfied Steiner’s bipartite “integral and indispensable” test. Id. at 903. We relied heavily on

the fact that “the donning and doffing of this gear on the . . .

plant’s premises is required by law, by rules of [the

employer], and by the nature of the work.” Id. (citing 29

C.F.R. § 790.8(c) n. 65) (1999)) (alterations and internal quotation marks omitted). We explicitly noted that the employer,

“by rule mandates the donning and doffing of clothes and gear

at various intervals throughout the workday, requiring

employees to wait for and to retrieve that gear in particular

areas at particular times on the . . . plant’s premises.” Id. (citations, alteration and internal quotation marks omitted). Our

conclusion was also predicated on the undisputed fact that the

“donning, doffing, washing, and retrieving of protective gear

[was], at both broad and basic levels, done for the benefit of

[the employer]. These . . . activities allow [the employer] to

satisfy its requirements under the law . . .” Id. (citations omitted). 

[5] The facts we consider in this case are diametrically

opposed to those that formed the contexts in Steiner, Alvarez,

and Ballaris. In Steiner, Alvarez, and Ballaris, the employer

mandated donning and doffing at the employer’s premises. In

this case, with the exception of motorcycle officers, donning

and doffing at the workplace are entirely optional. In Steiner

and Alvarez, the on-premises donning and doffing requirement was imposed to ensure compliance with the law. In this

case, the officers have cited no law, rule or regulation mandating on-premises donning and doffing. In Steiner and Alvarez,

on-premises donning and doffing “fulfill[ed] mutual obligations of employer and employee.” Alvarez, 339 F.3d at 901;

see also Steiner, 350 U.S. at 252. In this case, the officers

identify no obligation on either side that would be fulfilled by

on-premises donning and doffing. Finally, in Steiner, Alvarez,

BAMONTE v. CITY OF MESA 4773
and Ballaris, on-premises donning and doffing were expressly

determined to be for the benefit of the employer. In contrast,

in this case, the officers urged a conclusion of compensability

primarily for reasons that were of sole benefit to the employee

(risk of loss or theft of uniforms, potential access to gear by

family members or guests, risk of performing firearm checks

at home, discomfort while commuting, risk of being identified

as officer while off-duty, and risk of exposing family members to contaminants and bodily fluids from encounters in the

line of duty). Because of the disparity in the circumstances,

we are not convinced that the holdings in Steiner, Alvarez,

and Ballaris support a similar conclusion in this case that

donning and doffing of uniforms and related gear on the

employer’s premises are compensable under the FLSA as “integral and indispensable” work activities. Alvarez, 339 F.3d at

903.

The dissent references the “context-specific” inquiry

described in Alvarez to insert a factor that was never mentioned in Steiner, Alvarez, or Ballaris — “the practical difficulty” of donning or doffing off-site. Dissenting Opinion, p.

4789 & n.2. At the same time, the dissent ignores the other

factors articulated in those cases, i.e., whether on-premises

doffing “fulfill[ed] mutual obligations of employer and

employee[,]” Alvarez, 339 F.3d at 901; see also Steiner, 350

U.S. at 252; and whether on-premises donning and doffing

primarily benefitted the employer. See Alvarez, 339 F.3d at

902-03. 

In addition, the dissent’s approach completely elides the

fact that in Alvarez, we concluded that the time spent donning

and doffing “non-unique protective gear such as hardhats and

safety goggles . . . is not compensable.” Id. at 903. Moreover,

the dissent does not explain how its analysis applies to undercover officers, who do not wear the assigned protective gear,

for obvious reasons. Finally, the dissent includes a litany

describing the use and importance of the protective gear. See

Dissenting Opinion, pp. 4795-96. However, there is not a

4774 BAMONTE v. CITY OF MESA
mention of why the gear is less effective if donned at the officer’s home.5

Importantly, the dissent’s argument bears no resemblance

to the case brought by the officers. The officers urged that

they be compensated because of their preference to don and

doff at the workplace, not due to any of the factors set out in

Steiner and Alvarez. Unlike the argument manufactured by

the dissent, see Dissenting Opinion, p. 4796, the officers

made absolutely no claim that donning and doffing the protective gear were done for the benefit of the employer. The dissent’s contention rewrites the record of this case, and distorts

the holding of Alvarez. See Dissenting Opinion, p. 4796.

Indeed, the dissent cites only the portion of Alvarez observing

that prevention of unnecessary workplace injury inures to the

benefit of the employer. See Alvarez, 339 F.3d at 903. The

dissent makes no mention of the other factors that contributed

to the conclusion that on-premises donning and doffing benefitted the employer — satisfaction of the employer’s obligations under the law and prevention of workplace

contamination. See id. Aside from deviating from the officers’

arguments, the dissent even ventures to speculate that police

may be deterred from using protective gear, and “there may

be increased injuries or even lives lost.” Dissenting Opinion,

p. 4797 n.5, a hyperbolic spectre never even hinted at by the

officers with respect to the factors that determine compensability. In fact, it is insulting to even suggest that professional

law enforcement officers would compromise their safety or

the safety of the public for the sake of a few dollars. As far

as the record reflects, donning and doffing of uniforms and

protective gear in the City of Mesa have gone uncompensated

to this day. Yet the record does not reflect that a single officer

5The dissent makes this very point with regard to the uniforms. See Dissenting Opinion, p. 4794 (noting the “ability of undercover officers, who

wear no uniform, to effectively police”). The same is true of the protective

gear. 

BAMONTE v. CITY OF MESA 4775
elected to forego donning protective gear due to a lack of compensation.6

Subsequent to our decisions in Alvarez and Ballaris, the

DOL considered the compensability of donning and doffing

of clothing and gear at home. In a May 31, 2006, memorandum, the DOL advised that:

donning and doffing of required gear is within the

continuous workday only when the employer or the

nature of the job mandates that it take place on the

employer’s premises. It is our longstanding position

that if employees have the option and ability to

change into the required gear at home, changing into

that gear is not a principal activity, even when it

takes place at the plant.

Wage & Hour Adv. Mem. No. 2006-2, at 3 (May 31, 2006)

(2006 memorandum) (citation omitted).7

We have not previously addressed whether the donning and

doffing of police uniforms and gear at home are compensable

under the FLSA, or ruled on the impact of the 2006 DOL

6Our recent decision in Rutti v. Lojack Corp., Inc., No. 07-56599, ___

F.3d ___, 2010 WL 699946 (9th Cir. Mar. 2, 2010), does not persuade us

that compensation is appropriate in the context of this case. In Rutti, we

determined that the employee was entitled to compensation for tasks performed at-home pursuant to the employer’s requirement. See id. at *9. The

facts we now consider are not analogous, as it is undisputed that, with the

exception of motorcycle officers, the officers are free to don and doff at

home or at work. No requirement either way is imposed by the City. 

7The officers maintain that the DOL memorandum is limited to an analysis of the continuous workday rule. Under the continuous workday rule,

“the workday is generally defined as the period between the commencement and completion on the same workday of an employee’s principal

activity or activities.” IBP, 546 U.S. at 29 (citation omitted). However, the

DOL expressly considered in the memorandum the compensability of

donning and doffing when employees have the option and ability to conduct these activities at home. 

4776 BAMONTE v. CITY OF MESA
memorandum. Finding the DOL memorandum persuasive,

several district courts have held that such activities are not

compensable. In Martin v. City of Richmond, 504 F. Supp. 2d

766, 773-74 (N.D.Cal. 2007), the district court determined

that the police uniform was not indispensable to the officers’

principal activities, but that the officers’ equipment was indispensable to their principal activities. Nonetheless, the district

court held that “the donning and doffing of protective gear at

home typically renders that activity non-compensable under

the FLSA.” Id. at 775; see also Dager v. City of Phoenix,

2009 WL 531864, at *11 (D. Ariz. Jan. 21, 2009) (same);

Abbe v. City of San Diego, 2007 WL 4146696, at *7 (S.D.

Cal. Nov. 9, 2007) (same as to uniforms); but see Lemmon v.

City of San Leandro, 538 F. Supp. 2d 1200, 1207-09

(N.D.Cal. 2007) (determining that the donning and doffing of

uniforms and gear were compensable activities).8

We are persuaded that the district court’s analysis in Abbe

faithfully applied the precepts set forth in Steiner and Alvarez.

The district court stated:

8Other courts have concluded that the donning of uniforms is compensable when the employees do not have the option to don them at home. See,

e.g., Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d 499, 519 (D. Md.

2009) (holding that the donning and doffing of gear was compensable,

despite a take-home option, because the employees were “required by law,

policy, and the nature of the work to don and doff their [gear] at work.”);

Lee v. Am-Pro Protective Agency, Inc., 860 F. Supp. 325, 326 (E.D. Va.

1994) (finding donning of uniform compensable where “Plaintiffs seek

compensation for the time that it takes them to change into and out of their

guard uniforms, on site, because they are not allowed to change at home

and arrive at work already in uniform.”); cf. Bagrowski v. Maryland Port

Auth., 845 F. Supp. 1116, 1121 n.6 (D. Md. 1994) (“The only substantial

pre-roll call activity in which the non-supervisory plaintiffs allegedly

engaged was putting on their uniforms. Many officers came to work in

their uniforms and nothing prevented plaintiffs from doing so. Clearly,

dressing at work was not an integral part of their activity as were the

clothes-changing and showering habits of the workers routinely exposed

to hazardous chemicals at a chemical manufacturing plant who were the

plaintiffs in [Steiner].”) (internal quotation marks omitted). 

BAMONTE v. CITY OF MESA 4777
It is important to note . . . that the relevant inquiry

is not whether the uniform itself or the safety gear

itself is indispensable to the job — they most certainly are — but rather, the relevant inquiry is

whether the nature of the work requires the donning

and doffing process to be done on the employer’s

premises . . . 

Abbe, 2007 WL 4146696, at *7 (emphases in the original). 

We are similarly persuaded that the 2006 DOL memorandum regarding the compensability of the donning and doffing

of uniform and gear at home is consistent with our analysis

in Alvarez, and should be considered in our resolution of this

case. “An agency’s rules are entitled to two possible levels of

deference. Generally, Chevron9 deference is reserved for legislative rules that an agency issues within the ambit of the

authority entrusted to it by Congress.” Tablada v. Thomas,

533 F.3d 800, 806 (9th Cir. 2008) (citation omitted). “Such

rules are characteristically promulgated only after notice and

comment.” Id. (citation omitted). “If, on the other hand, the

agency rule or decision is not within an area of express delegation of authority or does not purport to have the force of

law, it is entitled to a measure of deference proportional to its

power to persuade, in accordance with the principles set forth

in Skidmore v. Swift & Co., 323 U.S. 134, (1944).” Id. (citation omitted). “Under this level of review, we look to the process the agency used to arrive at its decision.” Id. (citations

omitted). “Among the factors we consider are the interpretation’s thoroughness, rational validity, consistency with prior

and subsequent pronouncements, the logic and expertness of

an agency decision, the care used in reaching the decision, as

well as the formality of the process used.” Id. (citation, alterations, and internal quotation marks omitted).10

9Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837

(1984). 

10The dissent criticizes the majority for giving Skidmore deference to

the DOL’s interpretations of the Portal-to-Portal Act, see Dissenting Opinion, p. 4790, without in any way articulating why the DOL’s interpretive

documents lack the power to persuade. 

4778 BAMONTE v. CITY OF MESA
[7] We conclude that the 2006 memorandum merits Skidmore deference,11 as it provides a rational and consistent

approach regarding the compensability of the donning and

doffing of uniforms and related gear. In particular, the 2006

memorandum’s focus on the location of the donning and doffing comports with the principles established in Steiner, Alvarez, and Ballaris. In each of these cases, the employees were

required by their employers, by law, by rules, or by the nature

of the work to don and doff their uniforms and gear at the

employer’s premises. See Steiner, 350 U.S. at 256; Alvarez,

339 F.3d at 903; Ballaris, 370 F.3d at 911. The 2006 memorandum consistently opines that employees are not entitled to

compensation when they are not required by the employer to

don and doff uniforms and gear at the employer’s premises,

and have the option and ability to don and doff at home. The

2006 memorandum, therefore, provides additional support for

our determination of the non-compensability of at-home

donning and doffing, an issue not addressed in Steiner, Alvarez, and Ballaris. 

The DOL memorandum is also true to its prior interpretations of the FLSA and Portal-to-Portal Act. For example, 29

C.F.R. § 785.24(c) provides:

Among the activities included as an integral part of

a principal activity are those closely related activities

which are indispensable to its performance. If an

employee in a chemical plant, for example, cannot

perform his principal activities without putting on

certain clothes, changing clothes on the employer’s

premises at the beginning and end of the workday

would be an integral part of the employee’s principal

activity . . .

11The 2006 memorandum is not entitled to Chevron deference because

“[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines,

all of which lack the force of law—do not warrant Chevron-style deference.” Christensen, 529 U.S. at 587 (citations omitted). 

BAMONTE v. CITY OF MESA 4779
29 C.F.R. § 785.24(c) (emphasis added); see also 29 C.F.R.

§ 790.8(c) (providing the same example). 

The DOL has regularly interpreted these regulations to

require compensation when the donning and doffing of clothing is required at the employer’s premises. In a September 11,

1968, opinion letter, the DOL advised that “if an employee

cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at

the beginning and end of the workday would be an integral

part of the employee’s principal activity and compensable

. . .” Dep’t of Labor, Opinion Letter No. 908 (Sept. 11, 1968).

However, “employees who elect to dress at home before

going to work are not working while dressing even though the

uniform they put on at home is required to be worn in the

place of their employment during working hours.” Id.

In a January 28, 1974, opinion letter, the DOL reiterated

that “clothes changing time must be counted as hours worked

if it is required by the rules of the employer.” Dep’t of Labor,

Opinion Letter No. WH-252, p. 1, 1974 WL 38691 (January

28, 1974) (emphasis in the original). The DOL opined that

such activities were compensable where “the employer has

ruled that all employees in the stated departments must be

dressed in uniforms which they are not permitted to wear

when leaving the premises, and that under company rules the

employees must change clothes on the premises at the beginning and end of their work shifts.” Id. p. 2.12

12The officers assert that the DOL’s 2006 memorandum is inconsistent

with the DOL’s 2001 opinion letter interpreting section 3(o) of the FLSA.

In that letter, the DOL explained that “[a]n employer must compensate its

employees for any activity that is an integral and indispensable part of the

employee’s principal activities, including the putting on, taking off and

cleaning of personal protective equipment, clothing or gear that is required

by law, by rules of the employer or by the nature of the work.” Dep’t of

Labor, Opinion Letter, 2001 WL 58864 (Jan. 15, 2001). Appellants maintain that, because this opinion letter does not mention the location of the

donning and doffing of clothing, the DOL’s 2006 memorandum is incon4780 BAMONTE v. CITY OF MESA
The DOL Field Operations Handbook also instructs that

“[e]mployees who dress to go to work in the morning are not

working while dressing even though the uniforms they put on

at home are required to be used in the plant during working

hours. Similarly, any changing which takes place at home at

the end of the day would not be an integral part of the

employees’ employment and is not working time.” DOL Field

Operations Handbook, Ch. 31, § 31b13 (12/15/2000).13,14

sistent. However, the fact that the DOL did not address a location requirement in the 2001 opinion letter does not negate the DOL interpretation

regarding donning and doffing at home. See Dep’t of Labor, Opinion Letter No. 908 (Sept. 11, 1968); see also Dep’t of Labor, Opinion Letter No.

WH-252, 1974 WL 38691 (January 28, 1974). 

13Although the prior DOL interpretations involved the changing of

clothes and did not include gear, this does not diminish the 2006 memorandum’s persuasive effect. In Alvarez, we applied 29 C.F.R. § 790.8(c),

which deals with the changing of clothes, to the donning and doffing of

gear. See Alvarez, 339 F.3d at 903. 

14The officers’ contention that the DOL memorandum conflicts with 29

C.F.R. § 776.6 is unpersuasive. Section 776.6 provides that “[e]xcept for

the general geographical limitations discussed in § 776.7, the Act contains

no prescription as to the place where the employee must work in order to

come within its coverage. It follows that employees otherwise coming

within the terms of the Act are entitled to its benefits whether they perform their work at home, in the factory, or elsewhere. The specific provisions of the Act relative to regulation of homework serve to emphasize

this fact.” (footnote references omitted). The general statement that

employees may be entitled to benefits for work performed at home does

not contradict the DOL’s more specific determination that the donning and

doffing of gear at home are non-compensable as non-work preliminary or

postliminary activities. 

We also decline to accept the officers’ argument premised on 29 C.F.R.

§ 553.221(b) (“Compensable hours of work generally include all of the

time during which an employee is on duty on the employer’s premises or

at a prescribed workplace, as well as all other time during which the

employee is suffered or permitted to work for the employer. Such time

includes all pre-shift and post-shift activities which are an integral part of

the employee’s principal activity or which are closely related to the performance of the principal activity . . .”). This regulation in no way establishes

that the donning and doffing of uniforms and gear are compensable activities. Rather, the regulation merely provides that once work activities are

defined, the employee must be compensated for the performance of all

those defined work activities. 

BAMONTE v. CITY OF MESA 4781
[8] The 2006 memorandum’s location consideration furthers the purposes undergirding the Portal-to-Portal Act, as

reflected in the extensive findings articulated in 29 U.S.C.

§ 251:

The Congress finds that the Fair Labor Standards

Act of 1938, as amended [29 U.S.C.A. § 201 et

seq.], has been interpreted judicially in disregard of

long-established customs, practices, and contracts

between employers and employees, thereby creating

wholly unexpected liabilities, immense in amount

and retroactive in operation, upon employers with

the results that, if said Act as so interpreted or claims

arising under such interpretations were permitted to

stand, (1) the payment of such liabilities would bring

about financial ruin of many employers and seriously impair the capital resources of many others,

thereby resulting in the reduction of industrial operations, halting of expansion and development, curtailing employment, and the earning power of

employees; (2) the credit of many employers would

be seriously impaired; (3) there would be created

both an extended and continuous uncertainty on the

part of industry, both employer and employee, as to

the financial condition of productive establishments

and a gross inequality of competitive conditions

between employers and between industries; (4)

employees would receive windfall payments, including liquidated damages, of sums for activities performed by them without any expectation of reward

beyond that included in their agreed rates of pay; (5)

there would occur the promotion of increasing

demands for payment to employees for engaging in

activities no compensation for which had been contemplated by either the employer or employee at the

time they were engaged in; (6) voluntary collective

bargaining would be interfered with and industrial

disputes between employees and employers and

4782 BAMONTE v. CITY OF MESA
between employees and employees would be created; (7) the courts of the country would be burdened

with excessive and needless litigation and champertous practices would be encouraged; (8) the Public

Treasury would be deprived of large sums of revenues and public finances would be seriously

deranged by claims against the Public Treasury for

refunds of taxes already paid; (9) the cost to the

Government of goods and services heretofore and

hereafter purchased by its various departments and

agencies would be unreasonably increased and the

Public Treasury would be seriously affected by consequent increased cost of war contracts; and (10)

serious and adverse effects upon the revenues of

Federal, State, and local governments would occur.

29 U.S.C. § 251(a).15 A location consideration also supports

Congressional goals by clarifying the circumstances under

which employees must be compensated for the donning and

doffing of uniforms and gear, thereby preventing unexpected

and substantial liability to employers. Consistent with these

principles, we conclude that donning and doffing of police

uniforms and gear are not compensable under the

contextually-specific facts of this case.16 We agree with the

15Discussion of these findings is conspicuously absent from the dissenting opinion. 

16Contrary to the officers’ assertion, the 2006 DOL memorandum does

not “open a considerable loophole in the FLSA” by treating at-home donning and doffing as non-compensable. The memorandum does not provide

that at-home work is non-compensable. Instead, it narrowly focuses on the

donning and doffing of gear where the “employees have the option and the

ability to change into the required gear at home . . .” 2006 memorandum

at 3 (emphasis added). Employees, therefore, must have the ability to don

and doff their gear at home, not just the option. Appellants’ hypothetical

regarding a detective not being compensated for making investigatory

calls and conducting case research at home is, therefore, unpersuasive,

particularly as these do not generally meet the description of preliminary

or postliminary activities. See 29 U.S.C. § 254(a) (describing preliminary

and postliminary activities as acts other than “the principal activity or

activities which such employee is employed to perform.”). 

BAMONTE v. CITY OF MESA 4783
district court that it is undisputed in the record that officers

other than motorcycle officers retain the complete option and

ability to don and doff their uniforms and gear at home. There

is no rule, regulation, policy or practice of the City that limits

the officers’ option in any way. Although logical reasons exist

for the police officers not to avail themselves of the at-home

option, such as comfort, safety concerns, and exposure of

family members to certain substances, these reasons reflect

preferences rather than mandates. In sum, donning and doffing of uniforms and related gear are not required by law, rule,

the employer or the nature of the police officers’ work to be

performed at the employer’s premises. 

Our analysis is consistent with the reasoning employed by

the court in Haight v. Wackenhut Corp., No. 03 Civ. 9870

(SCR), ___ F. Supp. 2d ___, 2010 WL 769539 (S.D.N.Y.

Mar. 2, 2010). In Haight, security officers sought compensation for the time spent donning and doffing hardhats, safety

glasses, steel-toed boots, and gun holsters. See id. at *5.

Although an argument could certainly be made that this protective gear enabled the security officers to better perform

their assigned tasks, the district court nevertheless concluded

that the donning and doffing of the protective gear was not

integral to the principal work activities performed by the

security officers. See id. The court found “[m]ost significant[ ]” the fact that the security officers were “not required

to change on [the] employer’s premises and have the option

of changing at home.” Id. at *6 (citation omitted).

The district court expressly relied on the Second Circuit’s

decision in Gorman v. Consolidated Edison Corp., 488 F.3d

586 (2d Cir. 2007) to conclude that the equipment at issue

was “generic protective gear” that was “non-integral and noncompensable under [the] FLSA.” Haight, 2010 WL 769539,

at *5 (citation omitted). In turn, the Second Circuit looked to

Steiner, Mitchell, and Alvarez for guidance. See Gorman, 488

F.3d at 590-91. The Second Circuit recognized that only

activities “that are integral and indispensable to principal

4784 BAMONTE v. CITY OF MESA
activities are compensable under the FLSA . . .” Id. at 590

(citation and internal quotation marks omitted) (emphasis

added). The Second Circuit astutely recognized that there is

a difference between an indispensable activity and an integral

activity. That an activity is indispensable does not necessarily

mean that the activity is integral to the principal work performed. See id. at 592-93. While expanding on the distinction,

the Second Circuit explicitly noted the narrow interpretation

“invite[d]” by Steiner. Id. at 593. The Second Circuit reasoned that “Steiner therefore supports the [narrow] view that

when work is done in a lethal atmosphere, the measures that

allow entry and immersion into the destructive element may

be integral to all work done there . . .” Id. The Second Circuit

contrasted the equipment at issue in Steiner with the gear

donned and doffed by the employees of a nuclear power plant,

emphasizing that although the helmet, safety glasses and

steel-toed boots might “be indispensable to plaintiffs’ principal activities[,]” they were not necessarily integral to those

principal activities. Id. at 594.

The Second Circuit observed that “[t]he donning and doffing of such generic protective gear was not different in kind

from changing clothes and showering under normal conditions, which, under Steiner, are not covered by the FLSA.” Id.

(citation and internal quotation marks omitted).17

To the extent Haight and Gorman imply that generic protective gear is never compensable, we do not adopt this conclusion. See Alvarez, 339 F.3d at 903 (observing that certain

non-unique protective gear may be integral and indispensable). However, as with Alvarez, Haight and Gorman exemplify that the compensability analysis is “context-specific.”

17The Second Circuit also stated that “[t]he donning and doffing of

generic protective gear is not rendered integral by being required by the

employer or by government regulation.” Id. (citations omitted). We do not

adopt this premise. Rather, as recognized in Alvarez, see 339 F.3d at 903,

that is one factor to be considered in the compensability determination. 

BAMONTE v. CITY OF MESA 4785
Alvarez, 339 F.3d at 902. The dissent disregards this requirement and automatically assumes that the donning and doffing

of protective gear are compensable. See Dissenting Opinion,

pp. 4794-96. This assumption, without regard to the options

available to the police officers, contravenes our precedent and

creates needless intercircuit tension.

IV. CONCLUSION

[9] We readily acknowledge and applaud the many law

enforcement officers throughout this Circuit who put their

lives on the line daily to ensure the continued safety of our

communities. Our ruling in no way should be interpreted as

denigrating the vital role these officers fill in the rubric of

society. Nevertheless, our analysis of the governing statutes,

as informed by the DOL interpretation, our precedent, and

other analogous cases; leads us to the conclusion that the

donning and doffing of police uniforms and related gear are

not compensable activities in this case. No requirement of

law, rule, the employer, or the nature of the work mandates

donning and doffing at the employer’s premises, and none of

the other factors articulated in Alvarez weigh in favor of a

conclusion of compensability. No material issue of fact was

raised on the record of this case that donning and doffing of

police uniforms and related gear are compensable work activities under the FLSA, as amended by the Portal-to-Portal Act.

The district court, therefore, properly granted summary judgment in favor of the City.

AFFIRMED.

GOULD, Circuit Judge, concurring in the judgment in part

and dissenting in part:

I would not announce a bright-line location rule that controls the compensability of preliminary and postliminary

4786 BAMONTE v. CITY OF MESA
activities under the FLSA. The location where an activity is

performed is just one of many useful tools in the fact-sensitive

compensability analysis. Location is not in and of itself the

controlling test. Because I disagree with the majority’s

approach and its holding with respect to job-related protective

gear, I concur in the judgment only with respect to the majority’s determination that the donning and doffing of police uniforms is non-compensable. I would hold that the donning and

doffing of protective gear is compensable, subject to a de

minimis analysis on remand. Thus I respectfully dissent in

part.

I

The majority creates a bright-line rule that donning and

doffing uniforms and protective gear is integral and indispensable to police work, and thus compensable under the FLSA,

only if a “requirement of law, rule, the employer, or the nature

of the work mandates donning and doffing at the employer’s

premises.” Op. at 4786. This new rule is contrary to the

Supreme Court’s context-specific approach to determining

compensability. Even absent that conflict, I doubt that the

new rule will do much to clarify the law governing when the

donning and doffing of police uniforms and gear is compensable.

A

First, “[t]he Supreme Court’s approach to this principal,

integral and indispensable duty question is context-specific.”

Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003) (internal quotation marks omitted), aff’d, 546 U.S. 21, 32 (2005)

(citing with approval our “context specific” description of the

compensability determination). Steiner and Mitchell, the two

Supreme Court cases illustrating the proper approach for

determining compensability under the Portal-to-Portal Act,

examined more than a dozen factors between the two cases in

determining compensability. In Steiner, the Court concluded

BAMONTE v. CITY OF MESA 4787
that changing clothes and showering were compensable activities performed by battery-plant employees in Steiner after

looking to industrial standards, state-law requirements,

insurance-carrier requirements, operational-efficiency considerations, who provided the work clothes, the location and timing of clothes changing and showering, the absence of a

written policy governing clothes changing and showering, the

testimony of the plant foreman that an unwritten policy

required post-shift bathing, and the exception to the bathing

policy for an injured worker who did not use the common

showers. Steiner v. Mitchell, 350 U.S. 247, 250-51 & n.1

(1956). In Mitchell, the companion case to Steiner, the Court

determined that butchers’ time sharpening knives and saws

was compensable after looking at who furnished the knives

and sharpening tools, the importance of sharp knives to butchering, when and where the sharpening was done, and how

many knives were sharpened per day. Mitchell v. King Packing Co., 350 U.S. 260, 261-62 (1956). Although the location

of the clothes changing and knife sharpening formed part of

the analysis in both Steiner and Mitchell, location did not

dominate or control the inquiry.1

1

In Mitchell, the meat-packing plant housed a room with an emery

wheel and grindstone where the knifemen sharpened their tools. 350 U.S.

at 262. Because of the centrality of knife sharpening to butchering, it

seems unlikely that the Court would have concluded that sharpening was

not compensable if the knifemen had enjoyed the option to do this task

either at home or at the plant. Either way, the knifemen had to sharpen

their knives and saws to properly perform their jobs, so the task would

presumably have been compensable. See id. 

The facts here are analogous. Regardless of the location where donning

and doffing takes place, police officers perform the same series of steps

to ready their uniforms and gear. Under the majority’s new rule, any

police department that mandates that its officers don and doff their uniforms and gear at the precinct must pay for that time, while those departments that make the donning and doffing location optional face no such

requirement. Perhaps I missed something, but it seems quite strange that

the exact same activity would be only sometimes compensable under the

FLSA if we follow the majority’s rule. 

4788 BAMONTE v. CITY OF MESA
The two prior Ninth Circuit FLSA cases involving clothing

and protective gear have emphasized the location where gear

was donned and doffed, but both of those cases featured gear

that was impractical or dangerous to remove from the plant.

See Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 903-04

(9th Cir. 2004) (discussing the full-body “bunny suit” that

must be worn to prevent contamination from outside, ambient

air); Alvarez, 339 F.3d at 898 n.2 (listing gear designed to

repel blood and liquid associated with animal-carcass disassembly that must be cleaned after each shift). No such practical difficulty exists with respect to police uniforms and

protective gear, and I would distinguish Ballaris and Alvarez

as involving practical requirements of on-site donning and

doffing that are not presented here.2

The majority conflates the requirement that a piece of

clothing or gear be donned on-site with the importance that

the piece of gear has for the job performed. See Op. at 4778

(“[T]he relevant inquiry is whether the nature of the work

requires the donning and doffing process to be done on the

employer’s premises.”) (alteration omitted) (citing Abbe v.

City of San Diego, 2007 WL 4146696, at *7 (S.D. Cal.

2007)). This error perhaps arises because the nature of a particular piece of clothing or gear simultaneously determines (1)

whether it can practically be donned and doffed off-site, and

(2) whether wearing the gear is integral and indispensable to

the work performed. Although related, the two inquiries

2The majority is concerned that I discuss the practical difficulty of

donning and doffing off-site even though it was not explicitly addressed

in the Ballaris and Alvarez cases. Op. at 4774. The majority’s assumption

that the collection of factors that may properly be considered in the compensability analysis was closed after Ballaris and Alvarez highlights the

incorrect view it takes of the compensability inquiry. It is appropriate to

consider every fact relevant to donning and doffing police uniforms and

gear, and to evaluate those total circumstances under the previously established law. But the majority in substance has artificially narrowed the

inquiry to one factor: location. In so doing, the majority eschews Alvarez’s

context-specific approach. 

BAMONTE v. CITY OF MESA 4789
should remain distinct. While Ballaris and Alvarez may suggest that on-site donning will usually be sufficient to trigger

compensability under the FLSA, on-site donning is not necessary to make work-related activity, like putting on protective

gear, compensable. Rather, the only necessary conditions

remain those set out by the Supreme Court in Steiner: donning

the clothing or gear must be an “integral and indispensable

part of the principal activities for which [the officers] are

employed.” 350 U.S. at 256. It is how the piece of equipment

is used, not just where it is donned or doffed, that makes

donning and doffing integral and indispensable. 

The majority says that it is not announcing a bright-line

location condition for donning and doffing to be compensable. But we must evaluate the likely interpretive effects of its

rationale. First, it adopts the Department of Labor’s “focus on

the location of donning and doffing.” Op. at 4779. Second, in

parting ways with Steiner, Alvarez, and Ballaris—cases that

compensated donning and doffing—the majority does not reason that donning and doffing were “integral and indispensable” there but not here, as Supreme Court precedent requires.

See Steiner, 350 U.S. at 256. Instead, the majority asks

whether “on-premises donning and doffing” were required in

Steiner, Alvarez, and Ballaris. Op. 4774 (emphasis added). By

limiting the discussion of Steiner, Alvarez, and Ballaris to the

“on-premises” changing requirement, the majority narrows a

many-factored test into a one-fact inquiry. Only by transforming on-premises donning and doffing into the signal fact of

those cases can the majority assert that the facts in this appeal

are “diametrically opposed” to Steiner, Alvarez, and Ballaris.

See Op. at 4773. The final point demonstrating that the opinion in effect creates a bright-line rule jumps out from the

majority’s conclusion, which holds that donning and doffing

is not compensable “where no requirement . . . mandates

donning and doffing at the employer’s premises.” Op. at 4786

(emphasis added). 

In short, whether the majority is cognizant of it or not, its

reasoning in substance imposes a location prerequisite before

4790 BAMONTE v. CITY OF MESA
donning and doffing can be compensable. In making mere

location such a salient and dispositive factor, the majority

errs. I do not believe the Supreme Court’s context-specific

FLSA jurisprudence reasonably supports the imposition of a

location requirement for donning and doffing that does not

apply to other work activities. The location where the activity

is performed should inform, but not control, our inquiry. I

would continue to use location as one of many ingredients in

the compensability determination but would not make it dispositive in a subset of FLSA cases.

B

The second problem I see with the bright-line location

requirement is that it will not effectively create the bright line

that the majority seeks. The majority adopts the position taken

by the Department of Labor in a 2006 Advisory Memorandum written to Department staff.3

 That memorandum states

that “[i]t is our longstanding position that if employees have

the option and ability to change into the required gear at

home, changing into that gear is not a principal activity, even

when it takes place at the plant.” Dep’t of Labor, Wage &

Hour Adv. Mem. No. 2006-2 (May 31, 2006). 

The language about the “option and ability” to change at

home gives rise to the argument that donning and doffing is

compensable where employees do not have the true ability to

perform the tasks at home. This argument—that a de facto

requirement forces the employee to don and doff on-site—has

been repeatedly advanced by police officers in our circuit,

often in response to the employer’s invocation of the 2006

Advisory Memorandum. See, e.g., Valladon v. City of Oak3Neither the 2006 Advisory Memorandum nor the Department’s Statements of General Policy regarding the Portal-to-Portal Act carry the force

of law because they are not the product of formal adjudication or noticeand-comment rulemaking. See 29 C.F.R. § 790.1(b)-(c); Christensen v.

Harris County, 529 U.S. 576, 587 (2000). 

BAMONTE v. CITY OF MESA 4791
land, 2009 WL 3401263, at *9-10 (N.D. Cal. 2009) (denying

city’s motion for summary judgment because sufficient evidence supported a de facto policy requiring officers to don

and doff on-site); Dager v. City of Phoenix, 646 F. Supp. 2d

1085, 1100 (D. Ariz. 2009) (finding that option to don and

doff at home was not “illusory” because twenty-nine officers

changed completely or partially at home); Maciel v. City of

Los Angeles, 569 F. Supp. 2d 1038, 1049 (C.D. Cal. 2008)

(finding that “[f]or all practical purposes, the equipment must

be donned and doffed at the assigned station”); Lemmon v.

City of San Leandro, 538 F. Supp. 2d 1200, 1206 (N.D. Cal.

2007) (finding “strong indicia that the donning and doffing of

the uniform at the police station is a de facto requirement”);

Martin v. City of Richmond, 504 F. Supp. 2d 766, 776 (N.D.

Cal. 2007) (finding genuine issue of material fact as to

whether the nature of police work permits off-site donning

and doffing). Indeed, the allegation of a de facto policy

requiring on-site donning and doffing was raised in this very

case. Bamonte v. City of Mesa, 2008 WL 1746168, at *6 (D.

Ariz. 2008). The majority opinion endorses this argument by

explaining that employees “must have the ability to don and

doff their gear at home, not just the option.” Op. at 4783 n.16.

Rather than clarifying whether donning and doffing of

police uniforms and gear is compensable, the majority’s

approach will just change the terms of the debate. Employees

will now focus their energies on showing either that (1) their

employer maintains a de facto policy requiring on-site donning and doffing, or (2) that the nature of their work requires

it. The bright-line location requirement will do little to resolve

the issue of when police officers must be compensated for

donning and doffing their uniforms and gear. While straying

from the Supreme Court’s context-specific principles, the

majority’s approach will in effect provide little actual guidance. 

II

Applying a context-specific approach to the Mesa officers’

claims, I agree with the majority that the time officers spend

4792 BAMONTE v. CITY OF MESA
donning and doffing their uniforms is not compensable. I

would hold, however, that the time spent donning and doffing

the protective gear is compensable, subject to a de minimis

analysis.

A

Where uniforms are concerned, we start with the baseline

understanding that changing clothes under “normal conditions” is a non-compensable preliminary or postliminary

activity under the Portal-to-Portal Act. Steiner, 350 U.S. at

249. For clothes changing to become compensable in this

case, it must be integral and indispensable to policing, meaning that it is necessary to the principal policing activities and

done for the benefit of the employer. See Alvarez, 339 F.3d

at 902-03. 

In the cases where donning and doffing a “uniform” has

been found compensable Steiner and Ballaris—the uniform

performed a job-related function other than merely identifying

the wearer with a particular occupation. In Steiner, the “old

but clean work clothes” provided by the employer and worn

by the employees helped protect workers from lead oxide poisoning. 350 U.S. at 250-51. Clothes changing also helped the

employees avoid injury related to severe sulphuric acid burns.

Id. at 250. In Ballaris, some employees were required to wear

a uniform consisting of a polo shirt, pants, and shoes under

their protective bunny suit. 370 F.3d at 903-04. The uniform,

according to the employee manual, was necessary for many

reasons, including to “limit potential cleanroom contamination from the clothing worn under the cleanroom suits.” Id. at

904. The uniform aided the manufacture of silicon wafers by

limiting air-borne impurities introduced through street

clothes. Id. at 903. In both Steiner and Ballaris, it was the

functional role of the uniform, not the fact that it identified the

employee, that triggered compensability.

The Mesa officers’ uniforms identify them as police officers, and they argue that this creates a “command presence”

BAMONTE v. CITY OF MESA 4793
that is necessary to their work in arresting suspects or quieting

volatile situations. Yes, the uniform connotes authority, but

the long-sleeved shirt, tie, nametag, trousers, socks, and

authorized footwear do not assist the officers in making

arrests, interviewing witnesses, or writing reports—to name a

few of their principal activities—any more than substitute

clothing would. The ability of undercover officers, who wear

no uniform, to effectively police illustrates the point. I agree

with Judge Breyer’s view:

Aside from the authority they connote, [the articles

of an officer’s uniform] do not help catch suspects,

and they do not protect officers from violence.

Something more than the salutary effect of a uniform

on those who recognize its cultural significance is

necessary to make its donning and doffing “integral

and indispensable” to an officer’s “principal activities” of law enforcement. If the law were otherwise,

all uniforms would entitle their wearers to compensation under the FLSA.

Martin, 504 F. Supp. 2d at 774. Because I conclude that the

officers’ uniforms are not necessary to the principal work of

policing, I concur in the portion of the judgment holding that

the time spent donning and doffing the uniforms is not compensable. 

B

The analysis with respect to the protective gear is entirely

different. The Mesa officers are required at all times to wear

a duty belt, belt keepers, firearm and holster, magazine cases,

handcuffs and case, CAP-STUN spray and holder, telescopic

baton and holder, TASER with holder, and a portable radio

with holder. A bullet-proof vest, helmet, and traffic vest must

be available to the officers at all times, and the donning of

these items is mandatory in certain circumstances, such as

when the officer executes a search warrant or directs traffic.

4794 BAMONTE v. CITY OF MESA
The officers are also required to have leg and arm restraints

and a flashlight available at all times while on shift. The City

of Mesa issues most of this gear and reimburses officers for

the purchase of their bullet-proof vests. These tools, which are

always worn or available during the shift, are “job-related

protective gear.” See Alvarez, 339 F.3d at 903.

The police protective gear is similar to the sanitary aprons,

liquid-repelling sleeves, metal-mesh gear, and Kevlar gloves

at issue in Alvarez. The meat-processing employees were

required to don and doff the protective gear “at various intervals throughout the workday.” Id. Because the Alvarez

employees were required by law, employer policy, and the

nature of the work to don and use the protective gear, that

gear was “necessary to the principal work performed.” Id.

Finally, donning and doffing the job-related protective gear

was done for the benefit of the employer, because the gear

helped the employer satisfy legal requirements, prevent contamination, and avoid workplace injury. Id.

Analogizing the protective gear worn by police to the gear

in Alvarez, I conclude that the time spent donning and doffing

the police protective gear is integral and indispensable. The

gear is necessary to making arrests and protecting the public

from injury, two of the principal activities performed by the

Mesa officers. More specifically, officers use the flashlight to

locate suspects and evidence, and use the portable radio to

call for backup. The firearm, baton, CAP-STUN spray, handcuffs, and TASER all help the officers restrain and subdue

suspects and protect the officers and members of the public

from dangerous persons. The helmet, traffic vest, and bulletproof vest further protect the officers’ safety while they

engage in dangerous principal activities. This gear is indispensable to the task of policing, and the flexibility surrounding where the gear may be donned and doffed cannot

singlehandedly alter that fact. 

Donning and doffing the protective gear is also done for the

benefit of the employer, one of the main considerations in

BAMONTE v. CITY OF MESA 4795
determining compensability. Alvarez, 339 F.3d at 902. Gear

that prevents unnecessary workplace injury is donned for the

employer’s benefit. Id. at 903. The protective gear helps officers avoid injury or death during violent situations. Likewise,

officers use their protective gear to help keep the public safe

while on the roads or when threatened with violence. The gear

serves the dual function of protecting the officers and protecting the public, and it is therefore donned for the benefit of the

City of Mesa. Having determined that the job-related protective gear is necessary to the principal work performed and

donned for the benefit of the employer, I would hold that

donning and doffing of this gear is integral and indispensable

to the principal policing activities. See id.; Ballaris, 370 F.3d

at 910-11.

The last step in the compensability analysis is a determination of whether an otherwise-compensable activity is not compensable because the time required to complete it is de

minimis. Op. at 4771; see also Alvarez, 339 F.3d at 903 (citing Lindow v. United States, 738 F.2d 1057, 1061-62 (9th Cir.

1984)). The Supreme Court has said that the FLSA does not

compensate “a few seconds or minutes of work beyond the

scheduled working hours.” Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 692 (1946). We have said that “periods of

approximately 10 minutes” are often considered de minimis.

Lindow, 738 F.2d at 1062 (citing cases finding periods

between two and fifteen minutes de minimis). I might imagine

that the time it takes to put on and take off a belt and vest runs

only in seconds, or a few minutes, and is not compensable

under the de minimis test, but, given the district court’s

approach, the parties did not make a record on the de minimis

issue.4 So, on my theory of the case, a remand would be nec4Even if the time to put on and take off the protective gear is not de

minimis and is compensable under the FLSA, the officers’ commute time

would not thereby be rendered compensable. Commute time is specifically

excluded from FLSA compensability. 29 U.S.C. § 254(a)(1); 29 C.F.R.

§ 785.16. That is true even where some at-home activities following the

4796 BAMONTE v. CITY OF MESA
essary for an evidentiary hearing to determine whether the

time spent to don and doff the protective gear is de minimis.

III

I disagree with the location-based bright-line rule created

by the majority, prompting me respectfully to dissent.5 I

would instead conclude that the donning and doffing of police

protective gear is compensable unless the time involved is de

minimis. I concur in the judgment to the extent that it holds

that the donning and doffing of the police uniform is not compensable. 

commute are compensable. See Rutti v. LoJack Corp., No. 07-56599, slip

op. 3247-3258 (9th Cir. Mar. 2, 2010) (holding that data transmissions

performed at home are an integral and indispensable part of the principal

job activity, but nonetheless holding that the off-the-clock activity did not

extend the workday or render commute time compensable). 

5Although I ground my disagreement on a different view from the

majority about the Supreme Court’s controlling precedent, I also have

grave pragmatic reservations about the consequences of the majority’s

rule. It may be penny wise but pound foolish to save the expense of compensating for protective gear donned at home. This is only an illusory saving if the work was de minimis in any event. Worse, to the extent that the

majority’s holding may deter some police from using protective gear,

there may be increased injuries or even lives lost. Consider that officers

might intervene to address problems threatening public safety while they

are en route to work, and if so dangers increase absent protective gear.

That the majority labels this possibility “hyperbole” does not resolve my

concern. 

BAMONTE v. CITY OF MESA 4797