Companies Must Assess Wage Policies in Wake of 'Donning and Doffing' Ruling

The Supreme Court recently held that an employer must pay its employees for time spent walking to and from the employer’s locker room to production areas after putting on required protective gear and also for time spent waiting to remove the gear at the end of the workday. IBP Capital, Inc. v. Alvarez., 126 S. Ct. 514 (2005).

The Supreme Court’s ruling may require employers whose employees wear specialized clothing or gear that is “integral and indispensable” to their work to take stock of their current pay practices to ensure that they comply with the details of the FLSA.

Interpreting the Fair Labor Standards Act of 1938 (FLSA), the court ruled that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is…covered by the FLSA.”

This means not only that the time is compensable but it also counts towards minimums for overtime pay. In this case, the employees’ first principal activity was to don work gear; the last, to doff that equipment.

While the court ruled that the time spent donning and waiting to take off the equipment was compensable, it did not extend its ruling to include as compensable time spent by employees waiting to put on their protective gear.

How the Statute Works

The FLSA generally requires employers to compensate employees for all time spent performing “work,” yet the Act does not define what constitutes the beginning and the end of the workday. In response to the Supreme Court’s ruling in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), that the term “workweek” in the FLSA includes all time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace, Congress enacted the Portal-to-Portal Act of 1947.

The Portal-to-Portal Act excepts from FLSA coverage the time an employee spends walking on the employer’s premises to and from the location of the employee’s “principal activity or activities,” and activities that are “preliminary or postliminary” to “said principal activity or activities,” Section 4(a)(2).

Specifically, Part III of the Portal-to-Portal Act exempts from compensation the following: (1) walking, riding or traveling to and from the actual place of performance of the principal activity or activities; and (2) activities that are preliminary or postliminary to said principal activity or activities occurring either prior to or subsequent to the time on any particular workday on which an employee starts or ends those activities.

The Portal-to-Portal Act did not otherwise change the court’s descriptions of “work” and “workweek,” nor did it otherwise define “workday.”

Shortly thereafter, the Secretary of Labor issued regulations stating the Portal-to-Portal Act did not affect the computation of hours within a “workday,” which includes “the period between the commencement and completion” of the “principal activity or activities.” 29 CFR ��.6 (a)-(b). In 1956, the court explained that the term “principal activity or activities” embraces all activities that are “an integral and indispensable part of the principal activities,” including the donning and doffing of specialized protective gear “before or after the regular work shift, on or off the production line.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

The issue addressed by the Supreme Court in the recent IBP Capital decision is whether the employer must also pay employees for time spent waiting to don and doff their equipment and to pay them for the time spent walking to and from the locker or changing room to their actual place of work.

Meat Plant Safety Equipment

IBP Capital, Inc., a large producer of fresh beef, required its production workers to wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who used knives, were also required to wear a variety of protective equipment for their hands, arms, torsos, and legs, including chain link metal aprons, vests, plexiglass armguards, and special gloves.

IBP required its employees to store their special garments, tools and equipment in company locker rooms, where most of them donned their protective gear. The production workers were paid for time spent cutting and bagging meat and, since 1988, were also paid for an additional four minutes of changing time but not for the time spent walking to and from the work area before and after changing their clothes.

Barbara Foods, Inc., also in the meat processing business, employed 300 employees in its poultry plant. Its production employees worked on six different production lines, each requiring different combinations of protective clothing.

Its workers were paid by the hour, starting at the time they punched in at computerized time clocks located at the entrance of the plant. The employees were not paid for donning, doffing or the time spent waiting to don and doff. Nor were they paid for walking to and from the production line.

Both the IBP and Barbara Foods employees filed a class action for wages due as a result of pre-production and post-production work, including time spent putting on and taking off protective gear and the time walking before and after their assigned shifts.

Integral to the Job

The Supreme Court ruled in the two consolidated cases that donning protective gear was a principal activity that triggers the start of the workday. The Court emphasized that any activity which is “integral and indispensable” to a “principal activity” under Section 4(a) of the Portal Act is itself a principal activity

Therefore, walking time associated with donning and doffing unique protective gear is compensable under the FLSA. In addition, pre-doffing waiting time is compensable when the employee is doffing gear that is integral and indispensable to the employee’s work because it too is part of the continuous workday.

The court declined, however, to extend its ruling to time spent waiting to don the first piece of protective gear, reasoning that waiting time is not “integral and indispensable” and therefore excluded from FLSA coverage by Section 4(a)(2) of the Portal-to-Portal Act.

The court held that donning the first piece of equipment marked the beginning of the workday and any time spent prior to this was preliminary in nature and therefore not compensable. The court did caution that a different result might be necessary if the employer “required its employees to arrive at a particular time in order to begin waiting” to put on their protective gear. The court did not base its decision on the amount of time spent engaging in donning and doffing or walking. Instead, the focus was whether the activity is “integral and indispensable” to the employee’s work.

The court distinguished the walking in these cases from the general act of walking to and from the place of performance before and after starting work, which is specifically excluded under the Portal-to-Portal Act. While an employer is not required to pay an employee for time spent walking from the plant entrance to the production area, the court found that “donning and doffing” was actual “work” and this “work” triggered the start of the workday. In the usual case, in which protective gear is not required, walking is deemed preliminary.

Ramifications of Decision

Applying the Supreme Court’s decision will be highly fact-specific and dependent upon each employee’s job description. Thus, employers, especially those in waste disposal, scientific research, bottling and packaging should review their compensation practices.

As a general rule, employers are not required to pay employees for time waiting to check in at work even if employees have to wait through no fault of their own. This is considered a preliminary activity, not the employee’s principal job activity, and is therefore not compensable.

On the other hand, because the workday now begins when an employee starts to don the first piece of protective equipment, the employer should assess whether any gear it requires its employees to wear is required by law, by rules of the employer, or by the nature of the work.

For example, if an employee in a chemical plant cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity and compensable.

In light of this decision, employers should consider reevaluating their wage and hour policies. Even though the time spent by an individual engaging in donning and doffing or walking may be minimal, the potential economic impact can be substantial when these minutes are multiplied by several hundred employees over a period of years.

Employers should be aware that even seemingly small violations of the FLSA can result in significant damages in the aggregate. In FLSA lawsuits, employees may recover unpaid wages for up to three years, as well as an equal amount in liquidated damages. In addition, the employees can recover their attorneys’ fees and costs in bringing the suit,

Complicating matters further, the FLSA is enforced by the Wage and Hour Division of the Department of Labor, which may conduct internal audits of the employer’s compensation policies.

If investigators encounter violations – even ones wholly unrelated to one raised by complaining employees – they may recommend changes in employment practices in order to bring the employer into compliance. They will inevitably seek the make all employees whole.

In addition, willful violations may be prosecuted criminally and the violators fined up to $10,000. A second conviction may result in imprisonment.

Alice A. Kokodis, an associate at Davis Malm & D’Agostine, P.C. in Boston, practices in the employment law and litigation groups where she focuses on fiduciary obligations within close corporations, as well as contractual and employment-related matters. Ms. Kokodis represents individuals and corporations before federal and state trial courts, appellate courts, and alternative dispute forums throughout Massachusetts. Judith Ashton assisted in preparing this article. Ms. Ashton is a shareholder in the employment law and litigation groups at Davis Malm.