Bakestrieri v. Menlo Park Fire Prot. Dist.

Preliminary and postliminary acts are compensable under the Fair Labor Standards Act if they are principal activities.

Firefighters and emergency medical personnel of Menlo Park Fire Protection District (Firefighters) claim that two of the district’s policies violated the Fair Labor Standards Act. The district court granted their summary judgment. On appeal, the Ninth Circuit agreed with the district court in that preliminary and postliminary activities are compensable under the Fair Labor Standards act if they are principal activities. The panel found that when a firefighter signs up for overtime, he is free to take his issued gear home. If called into work the firefighter can then change into uniform and arrive at his guest station without stopping to change at his home station first. The panel explained that driving to a home station is not “indispensible” to the firefighter’s principal activities. The panel further analyzed the language of the Fair Labor Standards Act, and found that the act of loading turnaround gear to report to a shift was not integral and indispensable to the duties of a firefighter. The panel next addressed the buyback of firefighter’s sick time. The Fair Labor Standards Act defines overtime as 1.5 times regular rate and defines regular rate as “all remuneration of employment” which excludes occasional work periods when no work is done due to illness. The department of labor has interpreted that to include vacation leave buybacks. The court denies the firefighter claim that he buyback should be included in the calculation of regular pay because previous case law had stated “payments made when no work is performed due to illness” were to be excluded from regular rate of pay because of the plain language of the statute. AFFIRMED.