(July 2, 2009) -- Two federal court lawsuits in which 822 LB police officers have individually sued the City of LB seeking back pay/overtime, alleging failure to pay officers for (among other things) time spent putting on and taking off their uniforms and required protective equipment, could cost LB taxpayers an additional $200,000 -- bringing the cumulative cost to date to $695,000 -- for an outside law firm to continue defending City Hall in the case.
The item requires voted City Council approval...and is part of the Council's July 7 "consent calendar," a collection of items to which the public can speak collectively and Councilmembers can pull for individual discussion.
"There is no prospect for a settlement," City Attorney Bob Shannon told LBReport.com...citing the enormity of the sum being sought.
As first reported two months ago by LBReport.com, the first of the lawsuits was filed in 2005...and at stake is back pay/overtime stretching back roughly two to three years (depending on the specific action)...with damages potentially doubled if one particular allegation regarding the City's conduct is upheld.
The LB Police Officers Association (the union representing LB police officers) isn't a party to the litigation; to join in the lawsuit, officers had to "opt in" individually...but the union's quarterly newsletter/magazine has carried two articles about legal developments in similar cases elsewhere.
The type of lawsuits involved are colloquially called "doffing and donning" actions under the federal Fair Labor Standards Act (FLSA), seeking pay for before-shift and after-shift overtime spent putting on and taking off items needed for work.
The lawsuits were spawned by a U.S. Supreme Court case (originally involving butchers), subsequently expanded by the 9th circuit U.S. Court of Appeals to include other workers. Police officers in various jurisdictions have since sued their employers, arguing that putting on and taking off their required gear -- including protective items -- is more than changing clothing; it's required for work and time spent putting on and taking off these items ("donning" and "doffing") should be paid under FLSA.
Trial courts facing these issues in other cities have reached conflicting outcomes (sometimes ruling for management, sometimes for officers). In May, a Los Angeles federal judge ruled in favor of L.A. police officers, finding that LAPD officers should be paid for time spent putting on and taking off their uniforms and safety equipment...a decision that could cost L.A. City Hall millions in back pay.
The L.A. case was won by one the law firms now pursuing the doff-and-don action against the City of Long Beach.
Meanwhile, two other doff-and-don cases have percolated back up to the 9th Circuit Court which may (or may not) refine/amend/establish the applicable legal standards in such cases.
In March 2009, the City Council approved paying outside counsel an additional $200,000 (then bringing the cumulated total to a sum not to exceed $495,000) to continue representing the City in the two consolidated lawsuits
On May 5, 2009 an item appeared on the public City Council agenda regarding a closed session on the litigation. LBReport.com asked City Attorney Bob Shannon what he could tell us.
"We believe the cases are without merit. We are preparing to go to trial," City Attorney Shannon said at the time...and he put a point on it: "The City Council's vote to do so was unanimous."
