Donning and Doffing, Quirky Question # 28

Quirky Question # 28:

Our company has a manufacturing facility that has several product assembly lines.  Most of our production employees are required to wear basic smocks, hardhats, safety glasses, earplugs and gloves.  When the employees enter the building prior to their shift, they retrieve and put on their gear, then walk to their assigned production area.  At the end of the shift, they turn in their gear at a central location for cleaning.

Lately, a number of employees have complained that because of lengthy lines to obtain equipment, and the distance between the equipment room and the production floor, they have to arrive a work as much as 15-30 minutes before the start of their shift to ensure that they have enough time to get and put on their gear, and get to the production floor, by the pre-determined line start time.  Similar complaints have been made about the amount of time the employees spend waiting in line to turn in gear at the end of their shifts.  We have always paid our production employees on a “line-time” basis; in other words, they get paid from the time the production line starts at the beginning of the shift until it stops at the end of the shift (excluding one-half hour they take for lunch). The employees have asked us to add 30 minutes to their compensated shift time – 15 minutes at the beginning and 15 minutes at the end of each shift – so that they get paid for the time spent obtaining and putting on their gear, and turning it in at the end of the day.  Do we have to pay employees for this pre-shift and post-shift time?

[When I get a question like yours, I walk down the hall to see my partner, Jim Kremer. Jim, a 1987 graduate of Moorhead State University and a 1990 graduate of Georgetown University Law Center, is an expert on these issues. Jim’s resume can be viewed at www.dorsey.com and he can be reached by email at kremer.james@dorsey.com. Since Jim is far more knowledgeable than I regarding these kinds of issues, I asked Jim to address your question. Jim’s analysis is set forth below.]

Jim’s Analysis:

As you undoubtedly know, “wage and hour” claims are all the rage (or, from the employer’s perspective, the scourge) these days. Their appeal to plaintiffs’ counsel is understandable. Seemingly innocent or innocuous pay practices, if found to run afoul of the Fair Labor Standards Act (FLSA) or state wage laws, can lead to enormous liability in collective or class actions. Among the issues receiving increased attention is whether employees must be paid for time spent donning and doffing clothing and other gear they are required to wear.

Decades have passed since Congress enacted the Portal-to-Portal Act (excluding certain walking/travel time and activities that are “preliminary or postliminary” to an employee’s “principal [work] activity” from the scope of compensable time). The Supreme Court first addressed a donning/doffing question in its 1956 decision of Steiner v. Mitchell, 350 U.S. 247 (holding that changing clothes and showering were “an integral and indispensable part of the principal activities” of employees of a battery plant, and thus not excluded from compensable time under the Portal-to-Portal Act).

Following Steiner, many courts have wrestled with the question of whether donning and doffing activities must be compensated. The disposition generally turned on:

a) the nature of the gear worn by the employees – whether it was non-unique and relatively simple (such as hardhats, safety glasses, earplugs, smocks and hairnets) or more cumbersome and elaborate safety gear (such as chain mail or other protective equipment worn by employees performing knife work in meat and poultry processing plants);

b) the amount of time and effort required of employees to don and doff the gear in question; and

c) whether use of the gear was optional or mandated by the employer.

Courts generally concluded that the typically nominal time it took an employee to don and doff non-unique gear was either not “work” or did not have to be paid because of the de minimis amount of time involved. Although the courts have not reached accord as to what constitutes a de minimis amount of time, usually less than 10 minutes per day has been characterized as de minimis. In contrast, the more extended time and effort required to don and doff more unique and cumbersome protective gear has generally led to the conclusion that the time expended is compensable.

The donning and doffing landscape changed with a November 2005 Supreme Court decision in the consolidated cases of IBP v. Alvarez and Tum v. Barber Foods, 546 U.S. 21 (2005). Both cases involved claims by employees of meat processing plants for compensation for the time they spent obtaining and donning protective and sanitary gear, walking to their work stations after putting on the gear, and walking to the changing area at the end of a shift to remove the gear.

As to pre-donning waiting time, the unanimous court’s ruling is clear. Time spent waiting to obtain protective gear constitutes “preliminary” activity excluded from compensable time under the Portal-to-Portal Act. Therefore, you do not need to pay your employees for the time they spend waiting in line to get their gear pre-shift. One caveat, however – if you require your employees to report to the changing area at a specific time and the employees then must wait to obtain their gear, the waiting time may have to be paid under Department of Labor regulations (specifically 29 CFR § 790.7(h)). Although a requirement that workers be present at a pre-determined time prior to shift-start time may not alone be sufficient to transform any waiting time into compensable “work” time, prudent employers avoid such mandates. A policy merely requiring employees to be at their work station and ready to work at shift-start time arguably does not implicate the DOL regulation, affording the employer the benefit of the Alvarez holding as to pre-donning waiting time.

With respect to post-donning/pre-doffing walking or waiting time, the Supreme Court held that employees must be paid under the DOL’s “continuous workday rule” (29 C.F.R. § 790.6). The “continuous workday rule” limits the application of the Portal-to-Portal Act to activities occurring before an employee’s first “principal activity” and following his last “principal activity” during the day. In Alvarez, because the donning and doffing of gear was conceded to be a “principal activity” before the Supreme Court, the post-donning/pre-doffing walking time did not implicate the statute’s exclusions and the time was held compensable.

Notably, the issue of whether the donning and doffing of required gear constitutes “principal activity” that must compensated was not directly addressed by the Supreme Court in Alvarez. In one of the underlying cases (IBP v. Alvarez), the Ninth Circuit had held that the time spent donning and doffing unique protective gear was compensable, but that the donning and doffing time relating to non-unique gear (e.g., hardhats, smocks and the like) was “de minimis as a matter of law” and thus not compensable. Neither side challenged these findings before the Supreme Court. Nevertheless, the opinion arguably supports the conclusion that donning and doffing required gear constitutes “work” that is not excluded from compensable time under the Portal-to-Portal Act. Several courts – and the Department of Labor – have so held.

Not all courts agree that Alvarez ends this debate, however. The Second Circuit, for example, affirmed the dismissal of an FLSA collective action, holding that “[t]he donning and doffing of a helmet, safety glasses and boots are ‘relatively effortless,’ non-compensable, preliminary tasks. See Gorman v. Consolidated Edison Corp., 488 F.3d 586 (2nd Cir. 2007).

Another open question following Alvarez is the continued vitality of the de minimis doctrine. While some courts have continued to adhere to historic precedent relieving employers of the obligation to pay employees for donning and doffing activity that is otherwise compensable “work” but takes only a few minutes per day, others have suggested that the doctrine should not operate to deprive employees of compensation – at least where the employees’ aggregate amount of uncompensated time (including walking and waiting time) is measurable, the donning/doffing activity is regular rather than sporadic, and such time can be quantified and captured by the employer.

So your seemingly simple question does not lend itself to a simple answer. The law on the compensability of donning and doffing activities remains in a state of flux. As a practical matter, you need to assess carefully the amount of time your employees spend putting on their required gear, walking to/from their work stations, and waiting in line to turn in their gear at the end of each shift. In my view, the de minimis doctrine remains the employer’s best defense (and in some jurisdictions the only viable defense) against donning and doffing claims, at least where the workforce is non-union. Prospectively, you may want to give consideration to plant layout and procedural changes that could cut down on the amount of time employees expend on these activities. For example, it may be possible to relocate changing areas nearer production areas, minimizing post-donning/pre-doffing walking time. Similarly, placing bins at the doors to production areas in which employees can place their protective/sanitary gear at the end of a shift may substantially reduce doffing time at shift-end. Implementing a few such changes may prove to be much more economical than adding time to each employee’s compensated time.

If you have a union workforce, keep in mind that the FLSA provides that unionized employers are not required to pay employees for the time spent “washing” or donning and doffing “clothes” (which the DOL has said includes donning and doffing protective safety equipment) if the employer has a “custom or practice” of nonpayment or if such activity is expressly excluded from compensable time under a collective bargaining agreement. See 29 U.S.C. § 203(o). This exception in the union setting has its own complexities and inconsistent rulings among the courts, and is the topic for another day.

Finally, the issue of whether all donning and doffing of required protective and sanitary gear on the employer’s premises constitutes compensable “work” – the issue not directly presented in Alvarez – may be squarely before the Supreme Court in the near future. Tysons has petitioned the Supreme Court to resolve the question of whether some degree of exertion is required for donning/doffing activities to be compensable “work.” So stay tuned.

Dorsey & Whitney

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