LAPD Officers May Not Pursue Overtime Claims in Class Actions

Tuesday, May 1, 2018

Page 3

Ninth Circuit:

LAPD Officers May Not Pursue Overtime Claims in Class Actions

By a MetNews Staff Writer

Only 28 of the 2,440 Los Angeles police officers who sued for overtime pay will be permitted to proceed with their actions, under a decision yesterday by the Ninth U.S. Circuit Court of Appeals.

Officers brought two class actions—one in 2004 and another in 2007—seeking to establish systematic violations by the city of the federal Fair Labor Standards Act (“FLSA”). They contended there is an unwritten policy that an overtime claim is not to be submitted unless the time amounts to at least an hour.

By adhering to that policy, the plaintiffs asserted, they received no overtime based on missed “Code 7” meal breaks, or tending to pre-shift or post-shift chores.

Feess’s 2014 Ruling

Then-District Judge Gary A. Feess of the Central District of California (now a private judge) on May 21, 2014 granted the city’s motion to decertify the classes in both cases, holding that the officers were not “similarly situated.” He declared:

“[T]he claims arise in a wide variety of factual and employment settings, the LAPD’s defenses to the claims will require individualized presentation of evidence, and the interests of judicial efficiency and economy would be frustrated if Plaintiffs proceeded in a collective action.”

What followed were 28 lawsuits brought by subgroups of officers. The cases were spread among 13 district judges.

In each case, the city moved to decertify, and each motion was granted, leaving only the named plaintiff in the case. There were 27 appeals, decided together yesterday in a memorandum opinion.

Rule 20

The opinion points to Federal Rule of Civil Procedure 20(a)(1), which says:

“Plaintiffs. Persons may join in one action as plaintiffs if:

“(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

“(B) any question of law or fact common to all plaintiffs will arise in the action.”

The opinion declares:

“Here, Plaintiffs-Appellants have failed to satisfy Rule 20s permissive joinder standard. For example, Plaintiffs-Appellants do not allege any greater connection between their claims than that the City’s employees violated the FLSA in comparable ways, at various different times, and in various different divisions and bureaus. Plaintiffs-Appellants’ claims therefore are too factually disparate to arise out of the same transaction, occurrence, or series of transactions or occurrences.”

Issue Not Decided

It goes on to say:

“We need not decide whether any district court improperly relied on Judge Feess’s decertification decision or any decertification discovery in reaching its decision, because we can affirm on any ground supported by the record and the record in each of these consolidated appeals supports our conclusion that the permissive joinder standard was not satisfied.”

The case is Alvarado v. City of Los Angeles, 15-55952.

Other Litigation

An earlier action by 25 officers for unpaid overtime was filed on March 28, 2003, and 10 years of litigation ensued. A settlement was reached with 21 plaintiffs, resulting in $89,319 being paid to them.

On Jan. 8, 2014, Fees dismissed the case as to the remaining plaintiffs for lack of prosecution.

The judge on Feb. 10, 2014, ordered the city to pay to the Law Office of Herbert Hafif, which represented the settling plaintiffs, $838,254.39 in attorney’s fees and $39,963.17 in costs.

District Judge S. James Otero of the Central District of California on Feb. 27, 2012, denied summary judgment to the city in an action for overtime brought by a retired officer. In that litigation, the city produced a 2003 memo to officers and a memo in 2005 disclaiming the existence of the supposed unwritten policy. The latter memo said:

“The Department has no ‘unwritten’ policy that officers should work overtime without compensation. Department policy is that all legitimate overtime shall be compensated. Anyone who believes that they are being ‘pressured’ or coerced to work overtime without compensation shall report the fact to the authority in their chain of command above the source of the ‘pressure’ or coercion, or to the Professional Standards Bureau.”

The plaintiff, Leonard Avila, swore that when he turned in Daily Field Activity Reports not reflecting a “Code 7,” they were disapproved; he was required to indicate he had taken a lunch break even when he had not.

‘Doff and Don’

Feess on May 5, 2009 granted partial summary judgment in the case brought by LAPD officers which resulted in the $838,254.39 in 2014. He held that pay must be provided for the time spent putting on and taking off uniforms and equipment, explaining:

“After reviewing the parties’ arguments and evidence and the relevant jurisprudence in this area, the Court concludes that Plaintiffs’ donning and doffing activities are compensable under the FLSA as a matter of law. The Ninth Circuit has already held that the donning and doffing of specialized protective equipment such as body armor and police equipment belts is compensable under the FLSA. Although the district courts in the Ninth Circuit have split on the issue whether the donning and doffing of police uniforms are compensable activities, this Court concludes that those activities are compensable because…police uniforms convey and legitimize officers’ authority, increase officer safety, and help deter crime. Moreover, donning and doffing activities need not occur at the workplace to be compensable. Otherwise, employers could effectively insulate themselves from having to compensate such activities simply by permitting their employees to don and doff at home.”

Matter Reconsidered

However, on Feb. 10, 2010, Feess reconsidered, in light of a recent Ninth Circuit decision, and said:

“Circuit law teaches that a law, rule, or regulation must require police officers to don and doff their uniform at work to satisfy the ‘integral and indispensable’ requirement and thus support claims for donning and doffing. Here, the evidence clearly shows that LAPD officers have the option and the ability to don and doff their uniform away from work. There is no dispute that at least some police officers dress at home, and Plaintiffs have failed to present any evidence demonstrating that officers face negative consequences if they don and doff off-site.

“In short, donning and doffing the police uniform is not an ‘integral and indispensable’ part of an officer’s principal work, and therefore not compensable work activity under the FLSA. Accordingly, the City’s motion for reconsideration and motion for partial summary judgment are GRANTED.”