“Donning and Doffing” Cases Provide Useful Reminders About Wage and Hour Rules Printer friendly format

man holding hardhatThomas Hutton, Esq.
Patterson Buchanan Fobes Leitch & Kalzer

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:

  1. Is there a collective bargaining agreement? As the Seventh Circuit observed, where there is none, the implication is that time at work spent changing into and out of work clothes and washing up is compensable. If there is an agreement, what it says—or doesn’t say—should govern.
  2. Does the law or the employer’s policy require onsite donning and doffing? Does the employer wish to have non-exempt employees dress onsite, or does it discourage them from carrying clothing and gear offsite or from wearing a uniform when off duty? The greater the expectation of workplace changing, the greater the odds that the time is compensable.
  3. Is the law or policy not actually followed or enforced? And if law and policy are silent, does the practical reality or the nature of work dictate onsite donning and doffing? If so, the time may be compensable.

Some other takeaway points for employers:

  • As a practical matter, these disputes tend to arise after an employee is dismissed or some dispute arises, bringing FLSA issues to the fore in the context of the larger dispute. This means the issue shouldn’t automatically be dismissed just because nobody has brought it up yet.
  • Even if the amounts of time in question are small, in aggregate they can result in large exposure, especially if overtime requirements are triggered.
  • Although the Seventh Circuit found the U.S. Department of Labor’s support of the steelworkers’ position in Sandifer of little weight when the agency’s position changes so predictably between Democratic and Republican administrations, an enforcing agency’s enforcement posture ought to be taken into account when weighing risks.
  • It’s worth obtaining a sense of how much time might even fall into a grey area at the employer’s workplace, even if the time may not compensable. Consider potential FLSA implications in decisions about location of facilities, locations of time clocks, relevant procedures and practices, and, if applicable, collective bargaining agreements.
  • Guard against retaliation. Given the legal murkiness around this issue, it’s not unforeseeable that an employee may raise it. Even verbal statements can be construed as complaints for FLSA purposes, triggering anti-retaliation protections.
  • State wage and labor laws may apply. These laws typically are interpreted to be consistent with their federal counterparts, but there may be some local variations to account for. 

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.