“Donning and Doffing” Cases Provide Useful Reminders About Wage and Hour Rules |
Thomas Hutton, Esq. On May 8, 2012, the U.S. Court of Appeals for the Seventh Circuit issued the latest high-profile decision in what are known as “donning and doffing” cases. These cases involve an employer’s obligation to pay employees for the time they spend putting on (donning) and taking off (doffing) work clothing or gear, as well as for the time they spend getting from where they do the donning and doffing to their actual work stations and back. But, as you’ll see, the cases have broader implications for employers. Although the Seventh Circuit encompasses only Illinois, Indiana, and Wisconsin, its decision in Sandifer v. U.S. Steel Corp. draws attention to a national split of opinion among the federal circuit courts. In addition it was written by Judge Richard A. Posner, one of the nation’s most influential judges and legal scholars. The federal Fair Labor Standards Act (FLSA) excludes from its minimum wage and overtime pay requirements, the time non-exempt employees spend changing clothes or washing at the beginning or end of the work shift, as long as this time is excluded by terms, custom, or practice under a collective bargaining agreement. The FLSA also excludes the time employees spend walking or traveling to and from the actual place of performance of the “principal activity” for which they are employed. The steelworkers in Sandifer argued that the FLSA exclusion of time did not apply to them, because what they were donning and doffing was not just “clothing” but required safety equipment. This meant, they argued, that they should be paid for the changing time and the time it took them to get from where they changed to their workstations. The Seventh Circuit found the protective outfits worn by steelworkers served both as clothing and as protective gear, and the time to put on equipment like ear plugs, glasses, and hardhats was so minimal that it did not fall outside the FLSA exclusion. Reasoning that the exclusion would be largely meaningless if it didn’t apply to any clothing that also served a protective function, the court concluded that the steelworkers were not entitled to compensation for their donning and doffing time. Since the FLSA exclusion by implication means that donning and doffing time is compensable where employees aren’t covered by a collective bargaining agreement, the court presumed that the steelworkers’ overall negotiated compensation accounts for this, so that ruling for them here would compensate them twice. Where the changing time is not compensable, the court went on, it makes no sense to consider donning and doffing to be a “principal activity” for purposes of the FLSA’s exclusion of walking time, so the time the steelworkers spent walking between locker room and work station also was not compensable. On this point the Seventh Circuit said the contrary opinion of the U.S. Court of Appeals for the Sixth Circuit in a 2010 decision was “clearly wrong.” As Sandifer shows, the courts have come out differently on varying donning and doffing scenarios. At a minimum, employers should be aware of what their current policies and practices imply for this issue:
Some other takeaway points for employers:
Even for employers who may not have any donning and doffing going on in their workplace, these cases offer a more generally applicable reminder: it’s worth considering when your non-exempt employees are effectively expected to be “on the job.” When employees report to a certain place at a certain time in order to prepare to go to a jobsite, they may be on duty when they assemble, not when the actual work begins. In particular, as technology changes our notions of “the worksite” and blurs the lines between work time and personal time, it may be a good idea to review expectations with an eye toward the FLSA. |
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